14 Comments

Sent to me by email by a reader, a former federal law clerk and AUSA, who asked me to post on their behalf:

"I think that, if you are going to work on suspicion, innuendo and deductive reasoning, you must address the pervasive rumor that the leaker is Virginia Thomas. She clearly has zero sense of propriety for the role of a Justice’s wife. She has demonstrated a willingness to use extra-Constitutional means to accomplish her political ends. It would not surprise me if she had real-time information regarding the current status of circulated opinions and dissents."

"Your writing, as usual, is excellent. I would love to see you put out a hypothetical Ginny Thomas 'If I Did It' column."

My response to this reader: I do think Ginni is A leaker, namely, the leaker to the WSJ (and maybe even the leaker to the Washington Post from last weekend's article). And I suspect her involvement in leaks to the right in years past (e.g., in cases like Bostock and NFIB v. Sebelius).

But as I was saying to Judge Goodman and Steven Skulnik, I don't know that Ginni had an incentive to leak the entire Dobbs opinion, as opposed to leaking about wobbly conservatives to the WSJ (which I think was sufficient if her goal was to keep the conservatives in line).

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Good example of the kind of essay all of us should think about writing sometimes, "steel-manning" those we disagree with, or at least getting inside their heads.

I heard a rumor that the impending leak was "all the buzz" at Yale the week *before* it happened.

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As Professor Akhil Amar recently said on Bari Weiss's podcast, "If someone had a gun to a family member's head and said they'd only go free if I correctly guessed the source of the leak, I'd say it was a YLS clerk."

https://podcasts.apple.com/gr/podcast/the-yale-law-professor-who-is-anti-roe-but-pro-choice/id1570872415?i=1000560474755

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The fake column is made more believable by the usage of "pregnant people."

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David, have you considered asking law school deans to announce their respective public positions on the propriety of the leak?

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No, but it's an interesting idea! (I do know from a friend of mine who's a law school administrator, though, that they're getting "statement fatigue"—and they're trying these days to comment only on things that actually involve their particular school, as opposed to geopolitical issues, social-justice topics, etc.)

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Really well done, and I think most of it captures the thinking of someone leaking under this theory. The last few paragraphs, where you had a little fun, less are what a leaker would actually publish but I seriously LOLed for real *a lot*, especially at the mention of free Sun Chips.

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If you are looking for some great entertainment, check out the Columbia Law Revue "Fed Soc" video that's linked to the Sun Chips comment. It's pretty brilliant.

https://www.youtube.com/watch?v=qxCYxOlsJ0c

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I always find myself speaking Deutsch when in Germany. Funny thing.

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Terrific writing and analysis, David. Once again.

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David, again: you don’t think household member Ginni Thomas has access? Judge Emily

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I agree with you and Steven Skulnik that she had access. And as I wrote over the weekend, I think she's responsible for some of the leaks to the WSJ (not just this Term, but from past Terms).

Ginni Thomas had the abilty—but did she have the motive? I don't see what she had to gain from leaking the entire opinion. As Tom Goldstein pointed out on SCOTUSblog, if the goal was to keep the conservative coalition intact, that was accomplished by the earlier WSJ leak (which, again, I think Ginni might be responsible for). Leaking the full draft didn't really help.

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Motive: it’s all about Ginni! Serial disrupter and power and attention grabber. Judge Emily

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It's a scan of a printout. My guess is Justice Thomas took it home with him. Ginni found it in his study.

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