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Paul Brandus: We don’t know who the Roe v. Wade leaker is. But the organized, focused and well-funded Republicans may have just won again

In Washington, there are leaks, and then there are leaks. This one was a doozy.

Someone, as you no doubt have heard, leaked to Politico a bombshell: That the Supreme Court has made a preliminary decision to overturn one of the most controversial rulings in American history: Roe v. Wade, the 1973 ruling that legalized abortion in the United States. 

The decision was made in December, Politico’s reporting claims, with Clarence Thomas (appointed by George H.W, Bush), Samuel Alito (George W. Bush) and all three of Donald Trump’s justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — making a preliminary judgment that Roe, as Alito reportedly wrote, “was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”

Meanwhile, Chief Justice John Roberts, ostensibly a conservative himself, is said to be undecided. 

This shouldn’t come as a surprise, certainly not to pro-choice activists who have seen abortion rights chipped away for years. That we have gotten to this point is frankly a reflection of what a minority can do when it is organized, focused, patient and well-funded.

The combination of such attributes apparently renders irrelevant the fact that “nearly eight in 10 Americans believe abortion should be legal to some degree, and a majority don’t want Roe v. Wade overturned.” It’s also why the minority continues to have its way on other divisive national issues like gun safety laws. 

The identity of the leaker has unleashed frenzied speculation. Who did it and why? The easy impulse might be to think that a staffer for one of the three liberal justices — Sonia Sotomayor, Elena Kagan and the soon-to-retire Stephen Breyer — leaked the story. Perhaps. It might, the thinking goes, fire up Democrats, particularly women, 57% of whom voted for Joe Biden in 2020, but now find themselves looking at a possible red-wave midterm election that could cost Dems both the House and Senate.

Getting more women to the polls would help, not just with federal races but down-ballot contests in states that are also working to restrict abortion. This much is true: Democrats are already sending out fundraising letters today based on the Politico leak. 

But it could be a mistake to automatically assume that some leftie Supreme Court staffer is behind this. Perhaps a conservative staffer decided that this would further fire up Republicans, and get them to maintain their anti-abortion offensive. There’s a good reason for this. Even if the high court overturns Roe, it would still be up to individual states to determine abortion’s legality. Pro-lifers want further restrictions at the state level too, and won’t stop until they get their way. They’re obviously raising money, too.  

Then there is this. There are primaries in red states Ohio and Indiana today. Voting will provide early clues as to how much political clout former President Donald Trump — who has endorsed some 150 candidates this election cycle — has. It could help Trump decide whether to run again in 2024.

If he did run and he won, he could conceivably ask aging Republican justices Clarence Thomas (who turns 74 next month) and Alito, who just turned 72, to step aside so he could appoint younger justices who will be around well into mid-century. I don’t think they would, but why not take one for the team? If Republicans win back the Senate, and Mitch McConnell becomes majority leader again, who’s to say such things couldn’t happen? Yet another reason Republicans are also fired up.

So, whodunnit? Roberts this morning said the leak was “authentic,” and said he has ordered an investigation. But will we ever know? It took three decades to find out that “Deep Throat” — the leaker of all things Watergate — was Mark Felt, the number two man in the FBI.

Is there anyone of that stature in the judicial branch, or anywhere else, who could have done this? Perhaps someone got hacked and leaked the story to Politico.

And, I’m being flip here, but perhaps a janitor found an interesting piece of paper in the trash and gave it to a reporter. Nah, that’s silly. But the strange and often dysfunctional ways in Washington works never fail to surprise me. 

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