The most embarrassing, and probably most disruptive, “leak” in Supreme Court history – the unauthorized public disclosure last year of a draft of the historic Dobbs abortion decision – may have resulted from flawed internal secrecy procedures, but no individual leaker could be found, the Court said on Thursday.
After an internal investigation that began more than seven months ago (on May 2, 2021) and is not yet totally closed, the Court issued three reports: a two-page statement by the Court itself, a one-page report by an outside consultant who said he found the probe to have been thorough, and a 20-page report by the Court’s Marshal (its chief administrator) detailing how the probe had been conducted. (These three items can be read at Press Releases – pr_01-19-23 – Supreme Court of the United States).
It was not entirely clear, however, whether the investigators at any point questioned any of the nine Justices themselves. Early in her report, the Marshal said the investigation “focused on Court personnel – temporary (law clerks) and permanent employees – who had or may have had access to the draft opinion” between its first internal circulation (February 10 last year) and its publication by the online news organization, Politico, on May 2. While the Justices clearly had access to the draft, the Justices are not considered temporary (they have life tenure) and they are not employees (they are the Court).
All told, the report said, investigators had conducted 126 interviews with 97 employees, “all of whom denied disclosing the opinion.” Some were interviewed more than once; some admitted to sharing the draft opinion with their spouses, and said they had not followed internal document-control policy.
Despite the breadth of the probe, the Marshal said, “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…or how the draft opinion was provided to Politico.” The report suggested there probably had been some breakdown in internal controls on the movement of documents around the Court’s offices, and made a number of proposals to tighten up those procedures.
The Court’s final decision in Dobbs v. Jackson Women’s Health Center was issued near the end of the Court’s last term, on June 27. The result was a 5-to-4 decision to overturn the 1973 abortion decision in Roe v. Wade as well as a 1992 decision mainly reaffirming the right to abortion (Planned Parenthood v. Casey). By a separate 6-to-3 vote, with Chief Justice John G. Roberts voting with the five other conservatives, the Court voted to uphold a Mississippi law banning abortion at 15 weeks of pregnancy.
When the draft opinion was released, it was only the majority version written by Justices Samuel A. Alito, but it was labeled as the opinion of the Court itself, indicating that at the time it had the support of at least five Justices – Alito plus four. The final version of the majority’s writing was little different. The Court’s three more liberal Justices dissented.
The Marshal’s new report said the investigation was continuing, because the team was following up on some electronic data that was not described. The report spelled out, in considerable detail, not only how the Court tries to keep its internal workings and papers secret, but also the obligations of secrecy that it imposes on its staff. It also listed seven federal laws that might have been used to prosecutor a leaker or leakers, had they been identified. The report showed extensive efforts, ultimately unsuccessful, to track the electronic movement of the draft opinion out of the Court and into the hands of reporters for Politico.
In the Court’s new two-page comment on the investigation, issued in the name of the Court not any individual or group of Justices, it denounced the public release of the draft “as a grave assault on the judicial process” and as “one of the worst breaches of trust” in the Court’s history.
Leaks of the Court’s internal workings, and especially of its draft opinions, are exceedingly rare, although some enterprising journalists who follow the Court’s work from time to time have published reports about internal deliberations – usually, after the decisions have already come out in final form.
Perhaps the only comparably unsettling leak of a draft opinion of the Court in the Dobbs case was a leak in 1935 of the outlines of what the Court was discussing in three cases, which ultimately upheld President Franklin Roosevelt’s decision to take the U.S. currency system off of its link to the value of gold bullion to help save the U.S. banking and credit system in the midst of the Great Depression.
So upset about those cases, before the leak occurred, Roosevelt and his close aides worked on potential plans to refuse to obey the ruling, if the President’s decision had been struck down. It was upheld by a vote of 5-to-4.