Published On: Thu, Jan 19th, 2023

Supreme Court says it’s unable to identify who leaked draft abortion ruling



WASHINGTON — The Supreme Court on Thursday announced that after a lengthy investigation it has been unable to conclusively identify the person who leaked an unpublished draft of an opinion indicating the court was poised to roll back abortion rights.

In an unsigned statement, the court said that all leads had been followed up and forensic analysis performed, but “the team has to date been unable to identify a person responsible by a preponderance of the evidence.”

The attached report suggested the court was not watertight, with some employees admitting they had talked to spouses about the draft opinion and how the justices had voted. The investigation conducted by Supreme Court Marshal Gail Curley was largely limited to the court building itself and the people who work there, meaning that any actions taken by people at home or elsewhere using personal devices were mostly not within its scope.

The report also indicated that the justices were not scrutinized as part of the probe, with the focus on permanent employees and the law clerks who work for each justice for a year.

Curley said that 97 court employees were interviewed and all denied being the leaker. She said it was unlikely the court’s information technology systems were compromised.

“No one confessed to publicly disclosing the document and none of the available forensic and other evidence provided a basis for identifying any individual as the source of the document,” Curley wrote.

“If a court employee disclosed the draft opinion, that person brazenly violated a system that was built fundamentally on trust with limited safeguards to regulate and constrain access to very sensitive information,” she added.

The court also consulted Michael Chertoff, who served as Homeland Security secretary during the administration of President George W. Bush. Chertoff wrote in a separate statement that he had recommended several measures the court could take to improve security, including restrictions on the circulation of hard copies of sensitive documents.

Chertoff said he had reviewed the investigation and concluded that it was conducted thoroughly.

“At this time, I cannot identify any additional useful investigative measures,” he added.

Washington was rocked in May when Politico published a draft opinion authored by Justice Samuel Alito that indicated the court, which has a 6-3 conservative majority, was about to overturn Roe v. Wade, the landmark abortion rights ruling.

Traditionally, the court’s internal operations are shrouded in secrecy, and it is highly unusual for any signs of internal deliberations to be leaked before a ruling is issued. A day later, Chief Justice John Roberts confirmed that the draft was genuine and said he was announcing an investigation into the leak.

Thursday’s report said that 82 employees, not including the justices, had access to either a hard copy or electronic version of the draft opinion. Several people admitted in interviews that “they did not treat information relating to the draft opinion consistent with the court’s confidentiality policies,” the report said.

Employees were asked to sign an affidavit affirming that they did not leak the opinion. They would be subject to criminal prosecution if they lied to investigators.

But Curley appeared to concede there were limitations on what information investigators could glean from the interviews.

“Very few of the individuals interviewed were willing to speculate on how the disclosure could have occurred or who might have been involved,” she said.

In relation to online speculation about who the leaker might be, including references to specific law clerks, Curley said that “the investigators found nothing to substantiate any of the social media allegations regarding the disclosure.”

University of Notre Dame Law School Professor Richard Garnett, formerly a clerk for the late conservative Chief Justice William Rehnquist, expressed disappointment that the leaker was not identified because of the impact it could have both inside and outside the court.

“I worry that the failure to identify the leaker will contribute not only to various partisan speculations but also to a reduction in the collegiality among the justices and court staff,” he said in an email.

Republican lawmakers and conservative activists, some of whom had claimed without evidence that the leak came from a liberal court employee attempting to put pressure on the justices to stop short of overturning Roe, decried the failure to identify the culprit.

“The leaker must be brought to justice!” Republican Sen. Ted Cruz tweeted.

The inconclusive findings likewise led some liberals to double-down on their speculation that the leak likely came from the conservative wing of the court because of concerns that the majority was not locked in ahead of the official ruling being issued.

“I still think that the best guess is that a conservative justice or clerk leaked the draft opinion in order to prevent anyone in the conservative majority from switching their tentative vote,” tweeted Jessica Levinson, a professor at Loyola Law School in Los Angeles.

Politico’s report led to abortion rights protests, prompting the court to erect a security fence around the building. In the months following there were protests at the homes of some justices, and one man was charged with attempted murder after being arrested near the home of conservative Justice Brett Kavanaugh while in possession of a handgun.

In June, the court did indeed overturn Roe on a 5-4 vote, but until Thursday there was no official update on the status of the leak investigation.

The leak, in addition to the backlash to the abortion ruling, has led to increased scrutiny on the inner workings of the court. Liberal justices have suggested that the court risks undermining its legitimacy by abruptly unraveling decades of precedent.





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