Update: This article has been updated to reflect a statement on Friday from the Supreme Court.
The Supreme Court has published a long-awaited report on the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, the decision last summer that ended the constitutional right to abortion. So far, the major focus seems to be on what the investigation failed to uncover: A team of “seasoned attorneys and trained federal investigators” was “unable to identify a person responsible” for the leak.
But a deeper dive into the report reveals a second point that is just as important. For as carefully as investigators scrutinized every court employee who had access to the draft opinion, the report is silent about whether nine specific individuals who had the means to leak the opinion were questioned: the Supreme Court justices.
That silence is significant. In releasing the report, the justices may have hoped to move beyond the ugly finger pointing and loss of trust that the leak incited. What may result instead is increased suspicion of the justices themselves.
Only late Friday afternoon, a day after the report was released and after repeated questions were submitted to the court’s public information office about whether the justices were interviewed in the probe, did some clarification come from the court.
Its marshal, Gail A. Curley, who conducted the inquiry, said in a written statement that during the course of her investigation, she spoke to all the justices and they “actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the justices or their spouses.” She said she did not believe it was necessary to ask the justices to sign sworn affidavits under penalty of perjury — unlike every other employee interviewed. She does not say whether spouses of the justices were interviewed.
The new statement adds key information inexplicably missing from a report that is critical to the credibility of the court. But it still leaves some questions unanswered.
Let’s start with what the report says the investigators did do. After carefully determining that 82 court employees in addition to the justices had access to the draft opinion, investigators conducted an impressive total of 126 formal interviews. These interviews were far from idle conversation: Every employee who was subjected to questioning was required to sign a sworn affidavit on penalty of criminal prosecution in the event they are found to have lied. Some employees were subjected to follow-up interviews. All of them denied leaking the opinion.
Investigators also went further. They demanded detailed call and text message logs from some court employees’ personalcellphones. They examined employees’ computer search histories for suspicious activity. They ran at least one fingerprint analysis. They also searched other devices, such as printer logs and court-issued laptops and cellphones.
After reviewing the entire investigation, including all of the interview transcripts, Michael Chertoff, a former homeland security secretary, praised the process as a “thorough investigation” that was “professionally conducted.” The report’s conclusion — that none of the employees who had access to the draft opinion was responsible even under the lower standard of a preponderance of the evidence — thus would seem to be a credible one.
It is also a conclusion that comports with my own experience as a law clerk at the court. I still vividly remember the stern lecture all law clerks received about the importance of confidentiality — and the serious impression that any breach would engender the direst of professional repercussions. The court’s diligent staff certainly shared that understanding. For clerks and permanent employees alike, leaking a draft opinion would have been unthinkable precisely because of the severe consequences that would ensue.
There are, however, nine individuals for whom those consequences would not attach because Article III of the Constitution promises them life tenure — even if they leak a draft opinion.
The report does not explicitly declare that the justices were not interviewed or investigated. But the report does say that investigators conducted interviews only of court “personnel,” a term the report defines as including “temporary (law clerks) and permanent employees” — yet seemingly not the justices. What is more, the investigation was perhaps never likely to delve into the justices to begin with, given the very real sense shared by clerks and permanent court employees alike that the justices are simply above reproach. And of course, the person tasked with running the inquiry, the marshal of the Supreme Court, answers to (and can be fired by) the justices.
While the court’s marshal at least spoke with the justices, her failure to investigate them — or their spouses — on equal terms with all other court employees is glaring for at least three reasons.
First, outside of the court employees who were carefully examined by investigators, the justices were apparently the only other people who had “access to electronic or hard copies of the draft opinion.” No investigation honestly aimed at uncovering the truth would ignore them as a possibility.
Second, some justices possessed an especially plausible motive to leak the draft. Recall that the leak happened shortly after The Wall Street Journal’seditorial board published an inside account suggesting that Chief Justice John Roberts was working to persuade other justices, likely including Amy Coney Barrett and Brett Kavanaugh, to join him in a narrower ruling. Leaking the draft opinion — which Justices Barrett and Kavanaugh had voted to join, according to reporting at the time — would have trained immense pressure from conservative elites on both justices to stick with their original votes, thus preserving Dobbs’s eventual five-member majority.
Finally, justices have a long history of being the ultimate source of leaks. Justice William O. Douglas was notorious for talking to the press; the historian Douglas Brinkley described leaking as Douglas’s “modus operandi.” A remarkable five Supreme Court justices aided “in the breach of court secrecy” that made possible Bob Woodward and Scott Armstrong’s bombshell book on the inner workings of the Burger court, “The Brethren.” And more than a century earlier, Justice John Catron repeatedly leaked information about the Dred Scott case. If history is our guide (a claim that this court is increasingly prone to argue), the justices should have been among the first targets of the investigation.
In the end, we may never know who leaked the Dobbsdraft opinion. But this much we do know: The public report on the leak investigation will do little to repair the court’s battered public image.
Aaron Tang is a law professor at the University of California, Davis, and a former law clerk to Justice Sonia Sotomayor.
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