WASHINGTON, D.C. (LifeSiteNews) – Five months after the fact, it appears “who leaked the Supreme Court opinion overturning Roe v. Wade?” is destined to become one of the great unsolved mysteries of American politics. And not because the leaker covered his or her tracks particularly well, but because those in a position to find the truth are uninterested in doing so.
To recap: on May 2, Politico published a leaked draft of a majority opinion by conservative Justice Samuel Alito for Dobbs v. Jackson Women’s Health Organization, which declared that “Roe was egregiously wrong from the start,” and therefore it is “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” The Court soon confirmed the draft was authentic but stressed that it did not “represent a final decision by the court or the final position of any member on the issues in the case,” and announced the leak was under investigation.
The leak sparked outrage among the abortion lobby, taking the form of intimidating protests outside Republican-appointed justices’ homes – with the approval of the Biden White House and House Democrat leader Nancy Pelosi – and even a man who wanted to kill Justice Brett Kavanaugh. While the pressure campaign failed to change the vote of the final Dobbs ruling, released June 24, it seems clear that intimidating the justices into preserving Roe was the intention.
At the time, Chief Justice John Roberts called the leak a “singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” and conservative Justice Clarence Thomas lamented that it struck a blow to “such a belief in the rule of law, belief in the court, a belief in what we were doing,” that “now that trust or that belief is gone forever.”
So why don’t we know who did it by now?
Fox News reports that Justices Elena Kagan and Neil Gorsuch have both expressed hope that a report on the investigation will be released in the coming weeks, and that “[o]ver the summer, reports surfaced that the Court was seeking access to the phone records of law clerks in an effort to learn how the opinion may have leaked out.” But it’s still far from clear what’s taking so long.
It’s not as if the pool of potential suspects is particularly daunting; between the justices themselves and their clerks, only a few dozen people would have had access to the draft. The fact that conservative justices and like-minded staffers would have no logical motive for leaking it winnows the field further still.
“Initially I thought for sure they can find this out, right? It’s a pretty small universe of people they’re looking at,” Judicial Crisis Network president Carrie Severino told Fox this week. “Now I’m less sure, and it sounds like from several justices that they still don’t know who the leaker is. Maybe we’ll get a committee report on this, but we all know what that looks like. I doubt we’ll learn the identity at this point. I think that is a real tragedy.”
Just because the leak failed to influence Dobbs doesn’t mean the incident can be safely forgotten. “It sends a message that, hey, you too could leak a brief if you’re a clerk this year or a member of the court’s staff,” Severino notes. Indeed, the offender could go on to a lucrative law career of his or her own, or possibly even wield vast influence as a future judge (six of the nine current justices were Supreme Court clerks themselves).
Unfortunately, while innocent explanations for the Court’s foot-dragging are hard to come by, corrupt ones are readily apparent. If one of the leftist justices themselves were involved in the leak, or if one of their clerks acting alone would potentially embarrass them, it would strike a grievous blow to the Court’s self-image as a lofty, honorable institution above partisan politics, a body comprised of absolutely sterling, committed jurists.
Chief Justice Roberts, who time after time has placed his obsession with Supreme Court optics over fidelity to the law (most infamously with his 2012 and 2015 contortions to uphold Obamacare, most recently with his reported backroom efforts to get his colleagues to uphold Roe), would absolutely agree to keep the investigation’s findings quiet if they punched a hole in the Court’s credibility too big to ignore.
In short, it’s best not to place too much hope in the Supreme Court’s current leadership. Perhaps a new president can take an interest in the case in 2025.