WASHINGTON, D.C. (LifeSiteNews) – The U.S. Supreme Court announced Thursday that it cannot identify whoever leaked the draft of its majority opinion overturning Roe v. Wade, sparking intense suspicion and disapproval of their failure.
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 was “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 then-House Democrat leader Nancy Pelosi – and even a man who wanted to kill Justice Brett Kavanaugh. The pressure campaign failed to change the vote of the final Dobbs ruling, released June 24, but left behind severe questions about the integrity and safety of the court.
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On Thursday, the Court released the investigation report by the marshal of the Supreme Court, U.S. Army attorney Col. Gail Curley, along with a statement by the Court and one by security consultant Michael Chertoff, a former judge and U.S. Secretary of Homeland Security, reviewing the investigation.
The marshal’s report states that “investigators have been unable to determine at this time, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion in Dobbs v. Jackson Women’s Health Org. or how the draft opinion was provided to Politico,” though investigators “continue to review and process some electronic data that has been collected and a few other inquiries remain pending. To the extent that additional investigation yields new evidence or leads, the investigators will pursue them.”
The report “focused on Court personnel – temporary (law clerks) and permanent employees – who had or may have had access to the draft opinion,” and deemed it “unlikely” that an outsider could have hacked into the Court’s computer systems to steal a copy of the draft. At the same time, the COVID-19 outbreak’s “resulting expansion of the ability to work from home, as well as gaps in the Court’s security policies, created an environment where it was too easy to remove sensitive information from the building and the Court’s IT networks, increasing the risk of both deliberate and accidental disclosures of Court-sensitive information.”
Curley recommended new procedures for the security of future drafts, including limiting access to certain documents and the number and tracking of physical copies printed, as well as a “universal policy” on “the mechanics of handling and safeguarding draft opinions and Court-sensitive documents.”
Chertoff’s assessment endorsed Curley’’s investigation and echoed her recommendations, and the Court affirmed that the “Marshal and her team will continue to have our full support.” The report does not discuss whether any of the justices themselves were investigated as potential leakers.
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“The leak was no mere misguided attempt at protest,” the Court said. “It was a grave assault on the judicial process. To meet our obligations as judges, we accept submissions from parties and amici, we engage advocates at oral argument, and we publish explanations of our final decisions. All of this we do in the open. Along the way, though, it is essential that we deliberate with one another candidly and in confidence. That phase of the judicial process affords us an opportunity to hone initial thoughts, reconsider views, persuade one another, and work collaboratively to strengthen our collective judgment.”
Legal watchdogs were highly critical of the investigation, warning that in failing to identify the culprit it has failed to adequately deter future leakers:
The Supreme Court's report indicates that they cannot isolate the culprit among the over 80 possible suspects for the Dobbs leak. It is an admission that is almost as chilling as the leak itself…
— Jonathan Turley (@JonathanTurley) January 19, 2023
…What is clear is that any hope for a deterrent on such unethical conduct has been dramatically reduced. Thus far, the culprit succeeded in not just leaking the opinion but evading detection…
— Jonathan Turley (@JonathanTurley) January 19, 2023
…In this age of rage, this danger will only grow. Someone felt that they had license to leak. Some others may now feel that they have the impunity to do so. https://t.co/2rggctrUQm
— Jonathan Turley (@JonathanTurley) January 19, 2023
“The moment to find this [Dobbs] leaker was immediately afterward. I don’t think enough must have been done right then because there’s a small universe of people who had access to a draft opinion like that and many of them have left the Court at this point." – @JCNSeverino pic.twitter.com/8wSOYDdaib
— JCN (@judicialnetwork) January 3, 2023
Conservative Justice Clarence Thomas has said that the leak 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.”