Mark Halperin's Theory: Justice Elena Kagan Leaked 2022 Draft Abortion Ruling “To Stop the Decision”

Added: 2026-05-05

[00:00:00]Starting at the beginning of the show, you all were talking about the leak. I have always suspected Alto of leaking it because I always ask when something's leaked politically. Who benefits from it? And I would think that they wanted to soften the blow of the decision and move it further away from the midterm elections. It was the midterms. It was Trump's first midterm. And I have always s I have always thought it was him or somebody in the right >> on the right side of the court who wanted to make sure this got done and wanted to make sure that it was out of the way in time for the midterms. And to a large extent they were successful. It wasn't the most important issue in the midterms that year. Although it was still important. Um you all have a different conclusion here Molly and you've worked on it and you and I have known each other a while. I want to know you know what your thought is on on that.

[00:00:47]>> Yeah. Well, yeah, and it was the Biden it was the Biden midterms that it came out in in 2022. But I do understand that argument. What's interesting is immediately when it leaks, you see two wildly different reactions. On the left, you see people saying whoever leaked that is a hero or let's burn this mfer down. You know, people are like, "This was this took a lot of bravery. Thank you for leaking." On the right, you had people rather than celebrating that their achievement that they'd been hoping for for 50 years had finally happened, they're saying, "Oh dear, this is horrible that there's a leak." And it was kind of weird and it's a great example of how the right doesn't know how to celebrate its victories. But I did interview enough people to know that literally like nobody at the court thinks it was a justice. Like no, they don't think it was a left-wing justice.

[00:01:35]They don't think it's right-wing justice. They just they don't think it was a justice. And I think that's actually, you know, we'll see what Mark, you have to say about who you think did it, but I did not hear anybody think that. Now, a lot of people do think it was someone who was working on at the court that year.

[00:01:51]>> Almost everybody thinks it was a clerk >> and some people think it might have been staff. Um, but the I just want to say for the effect the effect was that immediately the lives of the justices who signed on to dos were under threat.

[00:02:05]The effect was that they had to wear bulletproof vests and go to a secure location. Uh they had already been dealing with the fact that as was reported by the New York Times that Brier and Roberts were trying to peel Kavanaaugh away. So it w if you're going to do a who benefits a if one of the justices had been killed and there were attempts on on their lives uh it would have meant that Robe would not have been overturned and then if you wanted more time to get Kavanaaugh to see to see like oh you can't do this it's going to be a really bad reaction. The leak would have benefited that group as well. Not that I think it came from you know those justices.

[00:02:40]>> Yeah. We're talking about Molly's book.

[00:02:41]It's called Alto the Justice who reshaped the Supreme Court and restored the Constitution. And again, you don't have to like Justice Alto to love the book because the book is a great work of uh of of capturing a a significant character in our history and also explaining a lot about how the court works. There haven't been many leaks in the history of the Supreme Court, although again the New York Times currently gets quite a few, it's kind of a new thing. And uh with respect to everybody on the on the court saying it's not a justice, um these are the Keystone cops. They couldn't solve the thing and they don't want to think it's a justice.

[00:03:14]>> Well, maybe they did solve the thing and they just don't want to tell us that they solved the thing.

[00:03:18]>> I'll tell you that to me makes me think it was a justice, Mark. I mean, I worked in federal court. I was a clerk in federal court. Uh not not at the Supreme Court level. I'm not that kind of brain, >> but uh but you know, the justices, the judges hold their staff pretty close.

[00:03:34]>> Yeah.

[00:03:35]>> And I find it hard to believe >> that at the Supreme Court level, anybody would go rogue like that without the justice knowing. Correct. That's part of my theory, too. I'll give you my theory.

[00:03:44]And again, this is not this is not a source. No one's told me this, but I'm pretty familiar with a lot of the dynamics here and and and and I'm very familiar with the two people that I'm going to be talking about. Uh the byon of the Politico story had two people on it. One of whom was Josh Kerstein, who I I've worked with for many years. I knew him when he was a college student writing for the Harvard Crimson. He's a one of the best he's truly one of the best reporters of the last 50 years. He really is a great reporter and he's my friend and and uh he won't like what I'm about to say probably anyway and I've I've teased him about it. Um I I believe I I normally don't like to speculate about leaks and people say, "Oh, I'm sure you know Heg Seth leaked this and here's why." It's it's all ridiculous because a lot of these things happen in ways you can't speculate about because you don't know. But in this case, I I I I I build first off of what Chris said, which is leaking. This would be a career-ending move if you were caught.

[00:04:34]And and you couldn't do anything electronic. You couldn't do anything electronic because you you'd list risk leaving a trail. So, it's got to be someone who was who had the guts to do it. The motive was clearly to try to stop the decision, right? The motive was to stop. I think I'm just speaking in definitive terms. might not have been, but it seems to me that's much much more likely. I know you don't, but I think it's much more likely that the motive was someone on the left to stop the decision. And I think it had to be a justice. And I think we have as a one of the suspects is the person who I believe with the knowledge of American history is the finest political operative ever to serve as a Supreme Court justice.

[00:05:13]Okay. Elena Kagan could run a presidential campaign. She is appal. She is appal. Okay. She is she is she's she's really interested in politics.

[00:05:23]She's really aggressive about liberals and compared to the other liberal justices, she is she is a a machine politician. Okay. So, I believe that Justice Kagan knew that the way to get it to Josh Gerstein, who I believe if you go look at Josh's writings about Justice Kagan, everybody can go on the political website, go read everything Josh has ever written about Justice Kagan, and you will see in the crevices of that writing, I think, a deep appreciation for Justice Kagan beyond uh maybe his appreciation for some of the other justice. It's not over the top. It's not unprofessional, but just go read it all and I think you'll see a spe a special relationship. And I believe what she did is I believe she had the ability to look at the draft opinion on her home computer. And how do you not leave a paper trail? You take a photo, you take screenshots with your phone, maybe a burner phone of the decision on your computer. So there's no electronic paper trail from the court system. And I believe she found a way to get those screenshots to >> Nobody Nobody's asking a Supreme Court justice for their phone. Right. Well, well, there was there was some discussion around the investigation and but but but she could have borrowed Josh's phone, >> right?

[00:06:37]>> She could have got Josh's phone, but but but if you think about someone had to have motive, okay? And and I I understand some people think the conservatives have motives. I just I don't think it's even close to a strong they had to have the they had to have the guts to do it, right? It's guts.

[00:06:53]It's a gutsy thing to do. your career's over if if you get caught. And you have to have a a sense of political sophistication to say how will this play out? How does Wait, hold on. I'm almost done. Get lost here, Mark. That's where you lose me. No, you have the political sophistication to say, I I have lost my belief that I can stop this decision the conventional way. So, I've got a theory that if this comes out, there'll be an uprising in America. And finally, you have to know one of the two polit the two politico reporters. And I believe the other political reporter was a total decoy. Molly, thank you for your patience. What do you think of my theory?

[00:07:30]>> Okay, I find it fascinating. And I want to say I I I'm not saying I share it, >> but one of the things that I found out in my book was that when the justices met in conference after the DOS leak, there were already a lot of threats on the lives of the conservative justices.

[00:07:46]And in in those sessions, they rate the opinions as A, B, or C. A is we're ready to we're ready to publish today.

[00:07:55]>> B is we're almost there. C is we're nowhere near. And people were shocked to find out that even though DOS had been argued in December, the draft of the majority opinion had come out since early February. According to the dissenters, they were nowhere near done.

[00:08:09]So you have two of the justices basically pleading with the liberal justices to get it done so that their lives aren't ended. And instead, according to my sources, Kagan did go to Briar's chambers. And Brier is, you know, very liberal, but he's a gentleman beloved by everybody on the court. He did seem to be open to trying to get something out quickly so that his colleagues would not be killed. And according to my sources, she was screaming at him not to not to accommodate them in any way. So I think that's interesting for your theory.

[00:08:41]>> And yes, and if and Brier for instance, he would never do this. He just wouldn't. So if you think as I do that it's one of the liberals. It's not going to be Brier.

[00:08:49]>> There's another thing that I want to say that I did hear from a lot of people on the court. When they did the investigation, it was done by the marshall. It wasn't really done by Roberts. It was done by the marshall and nobody thought it was done particularly well. She got a very late start into the investigation. She didn't really understand things like what you just said, Mark. they can take the opinions home and work on them at home. That's not just the justices, but the clerks and you know, >> correct.

[00:09:11]>> They didn't really understand how things got distributed and they never asked them, "Do you know Josh Gerstein? Does your spouse know Josh Gerstein? Have you ever interacted with him?" You know, they >> having worked for a judge, a federal judge, I will just say this. What is the difference between God and a federal district court judge? God does not think he's a federal district court judge. And it probably goes triple for a United States Supreme Court justice. The marshall is going to do the investigation. Doesn't matter if she's the best marshall that ever lived. She wasn't getting through that.

[00:09:45]>> It's a joke. And and just to be clear, Molly, when I said Roberts did it, Roberts was the one who decided to have the marshall do it.

[00:09:51]>> Yes. Because he didn't want to know and could have and could have done oversight with much a much better job of getting to the bottom of it. And and he's paying the price for it now with all these other >> Yes. Correct. By the way, they don't care cuz they're appointed for life.

[00:10:05]>> What is exactly the price? Even if it was one of the justices who did it and it came out that this person did it.

[00:10:11]What are you going to do about it?

[00:10:13]>> You're not going to get the justice removed.

[00:10:14]>> Okay, we're we're going to move on from this. Everybody's homework assignment is go read all of Josh's stories about Justice Kagan and you decide if you think I'm right. Okay. Cozy Earth, one of our sponsors tonight. We'll give you 20% off everything in the site if you go to cozyear.com and use the promo code morning. Uh, buy your Mother's Day gifts there. Moms would enjoy the bathroes, the slippers, the bubble cuddle blanket.

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