CLAY: Joined now by Carrie Severino. She’s Judicial Crisis Network’s president and a former clerk to Justice Clarence Thomas. So, Carrie, you have been a Supreme Court clerk. I went to law school, but I was nowhere near smart enough to be a Supreme Court clerk. So you will know and understand to an unbelievable degree. What was your reaction when you saw news that this Alito draft opinion had leaked? How stunning was it? Contextualize it for us, for those of you who will not have experienced what being a clerk and working at the Supreme Court is like.

SEVERINO: Yeah. That was utterly jaw dropping to see not just a leak but, hey, we think this is what the votes are, this is the direction they’re going, but an entire draft opinion as circulated the justices, so much so that, like, other clerks I know they just… They literally said this had to be a fake, there’s no way that could be real that, would never happen. Until the chief justice confirmed approximate, they’re like nope, I just can’t believe it.

When I was clerking, it was like you could not ever left that peculiarly with a piece of paper like that. The only thing I could take out, like if I wanted to do work at home in the evening was the filings and the things that had been already publicly filed for the court, so I could do my background reading, but that’s it. Any internal documents never left the building in, you know, paper form, in digital form, nada. So the idea — and, you know, well, Congress is always leaking and the White House is always leaking.

The Supreme Court, it just doesn’t happen. Think about it. Like, Bush v. Gore. Most controversial case, certainly that decade, probably in many decades, very tense. I heard clerks were like literally getting into fights — like physical fights — over how upset they were about this case. And we didn’t have a draft opinion for that, did we?

I don’t even think we had, like, “Here’s what the vote’s gonna be” leak. So this is completely novel for the Supreme Court to have something like this, and I think it’s — gonna be a long time if ever that the court and their internal processes can recover from something like this, let alone the threat to the justices that has been triggered by this type of leak.

CLAY: Carrie, so immediately when the leak happens a lot of us out there start trying to analyze who the leaker might be, and it’s informed speculation to a certain degree, but nowhere near like what I imagine the Supreme Court clerk text chains were like. How would you assess where this leak was likely to come from? What did you and your former Supreme Court clerk colleagues think in terms of analyzing this when you saw the story?

SEVERINO: Well, our immediate assumption was this has gotta be a leak from one of the liberal clerks. I think a lot of people assumed that maybe someone like a clerk in Justice Sotomayor’s chamber, because she seems to be particularly on fire (laughing) about this issue and just perceived as being a little more political than some of the others. They’re obviously not based on real information, just like, wow, this seems like the kind of thing they might do.

And I think you saw people on the right and the left are presuming that this was a liberal clerk leaking it in order to try to impact the court, in order to try to trigger exactly the types of protests that we’re seeing right now in the hopes of impacting the justices. And I think that’s maybe a nice way of putting it. I would say more threatening and intimidating the justices if it’s coming from that side.

Because there’s a difference in an opinion being leaked before it comes out and afterward. This is not just people saying, “I’m really upset about this.” It’s I’m trying to say they’re upset about it in a way that will influence the justices to change their opinion. Whether that’s based on just purely seeing outrage or based on the implicit threats that come of like the protesting in on front of someone’s private residence.

BUCK: Hey, Carrie, it’s, Buck. You know, the statute’s pretty clear on this. This is not legal what they are doing. And I’m wondering what the explanation is for why this is allowed to continue. My understanding is it’s not legal under Virginia State law and also on the federal side, judicial tampering… Think about it this way. If there was a drug dealer let’s say who was facing life in prison — you know, a drug kingpin — and he had 10 of his guys standing outside of the judge’s home waving signs saying, “You better watch out,” everybody would say, well, that’s judicial intimidation. Why isn’t this judicial intimidation?

SEVERINO: Well, I really think it is. Again the kind of stuff that’s going on here is not just limited to, “Hey, we want to, you know, express that we’re annoyed at your opinion.” It’s, “We want you to change your vote,” and that is in fact attempting to affect the direction of the court. And that, again, is assuming, you know, I think the best of motives because worst-case scenario we’ve heard is that Justice Alito is not returning to his home and has relocated to a different secure location.

This is really disturbing, and what’s even more disturbing is seeing the response from the White House and their refusal to condemn the idea of justices — protesting at the private residences of these justices. Some of whom have young children, right? So this is a really outrageous thing, you know. You know, over the weekend there was so much outrage that I think they tried to walk it back a little.

But they still they said, “Of course we want these to be peaceful and, you know, no threats or anything.” It took them four days to even say that much. Before there was like they’re very passionate, like, let’s let them protest. I think there’s absolutely a place for protesting, for making your voice heard. But that place is in the public sphere, in front of the Supreme Court, you know, things like that, not in front of someone’s private home.

CLAY: We’re talking to Carrie Severino, Judicial Crisis Network president, former clerk to Justice Clarence Thomas. Okay, Carrie. So if you had a magic wand and you could waive it right now, we don’t know what Chief Justice Roberts is going to do. Right now, it’s a 5-4, it appears, majority. Should they expedite the release of this opinion given the danger that may be out there for the conservative justices, also probably the conservative clerks, and the overall atmosphere surrounding the Supreme Court? Is that the wrong decision? Should Chief Justice Roberts join on to keep this from being a 5-4 decision? You have a magic wand. What’s the best way to restore some form of credibility and normalcy to the court in the wake of this leak?

SEVERINO: Well, if I’ve got a magic wand, let’s make it 9-0 while we’re at it, right?

CLAY: (laughing)

SEVERINO: The Chief Justice has said “I don’t want to do anything differently because of this leak.” But, you know, I think that’s a misconception of what’s going on here. I think you shouldn’t change your vote because of a leak. I am absolutely in favor of that, but I think under the circumstances… You know, the court can expedite opinions when they recognize there’s a serious reason to do so. They did that with the Texas heartbeat bill.

That opinion came out in like 50 days, which is lightning fast for a significant Supreme Court decision to come out. They clearly put the heat on and got that out. They could do that here, especially ’cause we know there’s already a complete draft. Now, we don’t know… There could have easily… We’re talking about months in between February when this was passed around to the justices in May when it was leaked.

So they already could have made a lot of, you know, edits in between. There could have justices saying, “Hey, let’s…” You know, they can ask for anything from, like, “I’d rather phrase this differently,” or, “Move the comma,” to, “Hey, let’s add this argument or take out this one.” So we don’t really know what the current version the justices are working with. But I would say, “Guys, get your acts together, get that signed.”

As long as… Once all five justices sign on, they could theoretically release it, even if the dissent wasn’t ready. They could say, “Okay, what you know, the dissenting opinion is gonna come out when the number of justices on the dissent are all agreed on it,” or they could lean on those justices, especially since their colleagues are actually being put I think in physical danger as a result of this.

I would hope that all the justices could say, “You know what? Let’s put this to the top of our pile, get this done right now, and get it out,” and then, you know, some of that pressure’s off. There’s still gonna be people outraged about the opinion, frankly, whatever ends up happening with it. It’s not gonna be one of those opinions that just —

BUCK: Yeah. Carrie, how concerned are you that we could actually see a flip and that it would go 5-4 in the other direction, and effectively the leak and pressure campaign and threats would have been successful?

SEVERINO: (sigh) Well, you know what? I hope and I really do think that the nature of how outrageous this was for the justices would fortify the spine of anyone who were considering that maybe this kind of outrage would be something that I would not want to see. Maybe they didn’t want to see it and I think none of the justices want to see this type of activity. But I would hope this would never be something that would make them switch their votes.

Now, we know they have life tenure under the Constitution specifically to allow them to have that independence, to not have to be looking at the outside effects, although obviously, you know, when you have actual threats and things, that changes it whether you’ve got life tenure or not, right? But I would hope that they would be able to stay from…

Again, I would love it if the chief justice said, “You know what? I’m going to join this opinion just to make the point that I’m not gonna be bullied by these things and I think recognizing, too, that he’s not… Trying to uphold Roe is simply not legally plausible if you’re upholding the Mississippi law as well. It’s just completely at odds with that decision you kind of have to pick one or the other and he’s trying to have it both ways.

BUCK: Sounds like Chief Justice Roberts, unfortunately.

SEVERINO: Yes. (chuckles)

BUCK: Carrie Severino, everybody, Judicial Crisis Network president, former clerk to Justice Thomas. Carrie, thanks for joining us here. We’ll talk to you again soon.

SEVERINO: Thanks. Have a great day.