- Republican lawmakers have accused "the left" of leaking the court's draft opinion overturning Roe v. Wade.
- It's unknown who leaked the document, and there's no concrete evidence to suggest it was a progressive.
- "I never said I know who the leaker is," said Hawley, despite calling the leak an "assault" by "the left."
When Politico first published a leaked Supreme Court draft opinion that would overturn Roe v. Wade on Monday night, Republican Sen. Josh Hawley of Missouri was the first US senator to publicly weigh in, focusing on the extraordinary breach in court norms.
"The left continues its assault on the Supreme Court with an unprecedented breach of confidentiality, clearly meant to intimidate," he tweeted at 9:05 pm, within an hour of the story's publication. "The Justices mustn't give in to this attempt to corrupt the process. Stay strong."
He followed up shortly thereafter with praise for Associate Justice Samuel Alito's draft opinion, which he called "voluminously researched, tightly argued, and morally powerful."
By the next day, Senate Minority Leader Mitch McConnell was echoing Hawley's assumption, arguing in a statement that "by every indication" the nearly unprecedented leak constituted "yet another escalation in the radical left's ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law."
And by Wednesday, Republican Sen. Ted Cruz of Texas had confidently declared that "there was one woke little left-wing twit" at the high court who had decided to "sneak it out in order to put political pressure on justices."
But no concrete evidence has emerged in the public domain that points towards the left — or the right, for that matter — as the source of the leak.
"I never said I know who the leaker is," Hawley said on Thursday when Insider pressed him for evidence to support his claims.
Still, a slew of prominent Republican lawmakers in Washington have raged at the political left over the leak, in some cases insisting that the leak itself is more important than the possible revocation of a constitutional right.
'It's cute, but I think the odds are vanishingly small'
Various theories abound as to the provenance and motivations behind the leak, which is now under investigation by the court itself. Conservative opinion writer Ross Douthat has posited that the leaker could have been a conservative who hoped to "freeze a wavering justice" into not changing their vote "by making it seem like the very credibility of the court rests on their not being perceived to cave under external pressure."
"There was a moment when I thought somebody from our side might have leaked it to get it over with," Republican Sen. Kevin Cramer of North Dakota told Insider on Tuesday, with a laugh. "But I'm kind of coming to the conclusion that probably wasn't the case."
Others have even speculated that Chief Justice John Roberts may have leaked the opinion himself in an attempt to warn his conservative colleagues about the potential for backlash, given that he reportedly does not want to overturn Roe v. Wade.
Equally plausible is the theory, advanced by several Republican senators, that a liberal clerk or justice leaked the opinion in order to generate public backlash and pressure the conservative justices to alter their decision. But Democratic senators have declined to speculate on the leak, focusing instead on the substance of the opinion and moving ahead with a likely-doomed vote to codify abortion protections into law next week.
"The thought of leaking any document from the Supreme Court would've been unimaginable to me as a law clerk," Democratic Sen. Richard Blumenthal — who clerked for Justice Harry Blackmun, the author of the original Roe opinion — said at a press event outside the Senate on Tuesday.. "But even more unimaginable would have been the language of this draft opinion."
Asked by Insider for evidence behind his theory on Wednesday, Cruz said it was "common sense" that the leak came from the left, given Senate Majority Leader Chuck Schumer's declaration in 2020 that justices would "pay the price" for voting to overturn abortion rights, as well as calls from progressives to add more justices to the court.
When presented with the possibility that it came from a conservative clerk, Cruz dismissed it as a "left-wing talking point" while pointing to the fact that the leak was immediately met with praise from Brian Fallon, the executive director of the pro-court expansion group Demand Justice.
"I think the odds are overwhelming, it is a law clerk for one of the three liberal justices. That's a universe of 12 people," said Cruz. "The urgency with which those on the left, including in the media, have tried to say no, no, no, this is really a conservative — I think it's cute, but I think the odds are vanishingly small."
Hawley, on the other hand, denied that he ever blamed the left for the leak at all.
—Josh Hawley (@HawleyMO) May 3, 2022
"Well I don't know where it came from," he told Insider. "But I can see how the left is using it, which is to threaten the justices, to go after them and their families, and try to influence the deliberations of the court."
In addition to several tweets insinuating that the leak was part of a "coordinated" effort by both the White House and Democratic senators, Hawley argued in a Fox News op-ed on Wednesday that the leak "looks like an effort to derail" Alito's opinion — which is "everything a constitutionalist could hope for" — from becoming final.
"Listen, this could easily be solved," Hawley told reporters on Tuesday. "All of the Supreme Court justices should talk to all of their clerks and staff, and they should all issue statements today saying whether or not they leaked it."
On Thursday, Hawley was adamant that he hadn't assigned any blame for the leak, despite his initial insinuation. "Asked and answered," he quipped as he boarded an elevator.
'If it's a conservative, you're a traitor to the cause'
Several other Republican senators have also claimed without evidence that the leak is part of an ongoing assault by the political left on the institution of the Supreme Court.
"It's difficult to think this was anything but an escalation in the radical left's campaign to bully the Supreme Court into delivering decisions in line with the priorities of the Democrat Party," said Sen. John Thune of South Dakota, the 2nd-highest ranking Republican in the chamber, during floor remarks on Wednesday.
"The SCOTUS brief leak is part of a studied effort by the pro-abortion left to intimidate the Supreme Court," tweeted Republican Sen. Bill Cassidy of Louisiana on Wednesday.
"This leak is an egregious attack on the institution of the Supreme Court of the United States," declared Republican Sen. Roger Marshall of Kansas in a video in front of the court on Tuesday. "But we really shouldn't be surprised by that. This is what Democrats do when they lose a ballgame. They try to change the rules."
—Dr. Roger Marshall (@RogerMarshallMD) May 3, 2022
But other prominent Republicans have been more cautious.
"To the person who did this — if it's a conservative, you're a traitor to the cause," said Republican Sen. Lindsey Graham of South Carolina in a Tuesday night appearance on Sean Hannity's Fox News show. "If it's a liberal, you're the dumbest person in Washington … you're not going to scare any conservative judge away from repealing Roe v. Wade."
Insider reached out to each of their offices for comment, asking for evidence to support their claims. McConnell's office declined to comment, while the offices of Sens. Thune, Thune, Cassidy, and Marshall did not respond.