It’s understandable that people are dissatisfied with the report of Supreme Court Marshal Gail Curley’s investigation into who leaked the draft Dobbs decision. After all, it came up empty as to the Court’s staff, and left out any discussion of the very people who so many truly thought, and passionately wanted, to be the culprit.
After the reaction to the report reached fevered pitch, Curley released a separate statement to calm the savage beast.
While generically responsive, it highlighted two things. First, the justices were not treated the same as everyone else. Second, the depth of the investigation into the justices (and, ahem, their spouses named Ginni) was unserious.
But the justices — unlike dozens of law clerks and permanent employees of the court — were not made to sign sworn affidavits attesting that they had not been involved in the leak of the draft opinion overruling Roe v. Wade and that they knew nothing about it.
Before further blathering about the problems this caused, a few nuts and bolts need to be considered. First, leaking the decision was not a crime. A monumental ethical breach, but not Leak in the First Degree. Second, this wasn’t exactly the most onerous investigation, the sort commonly performed by law enforcement of a mundane drug conspiracy. There was a lot left to “trust” here, even of the staff.
Third, the Nine are not the same as staff, temporary or otherwise, as they are constitutional officers, and the Marshal doesn’t get to make demands of them. While the justices could have agreed, for the sake of the Court’s integrity, to allow the Marshal to search their devices, question their wives named Ginni, sign an affidavit, they couldn’t be forced to do so. While John Roberts may be chief justice, not even he had the authority to require it.
Perhaps Curley asked nicely. Perhaps a justice, or all justices, or somewhere in between, said “no,” and refused to be treated like common law clerks. Bear in mind, the left is certain it was a justice on the right. The right is certain it was a justice on the left. There are reasons why either side might have done it. There are reasons why it might not have been a justice at all. There are reasons why it was, particularly since the Marshal came up empty when there was a leak and somebody did it and we still don’t know who it was.
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.
Curley’s post-report statement didn’t quell the questions, but raised new ones.
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’s editorial 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.
David Lat offers the alternative version of the “second” question.
To the extent that the documents released yesterday hint at something, they seem to suggest a lefty as the leaker. Consider the first two sentences of the Court’s statement about the report: “In May 2022, this Court suffered one of the worst breaches of trust in its history: the leak of a draft opinion. The leak was no mere misguided attempt at protest.”
I disagree with other aspects of their analysis, but I agree with Professor Melissa Murray and Mark Joseph Stern that the “misguided attempt at protest” language obliquely fingers the left, by suggesting the leaker wanted to “protest” the Dobbs decision. Considering how pleased most conservatives were by Dobbs, any “protest” would have come from liberals or progressives.
Regardless of which version confirms your priors, neither proves under any burden that it was a justice rather than a staffer who was responsible for the leak. While Aaron Tang calls it a careful examination of the staff, and former Homeland Security Secretary Michael Chertoff called it “thorough” and “professional,” it was pretty damned superficial. Tang disposes of this by holding up his experience as a Supreme Court clerk.
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.
If the only thing that prevented clerks from leaks was “severe consequences” and not that they were ethical and wouldn’t do it because it was wrong, regardless of whether there were consequences, it speaks very poorly of the caliber of lawyer serving as SCOTUS clerk. And if a clerk believed that he was serving a greater good by leaking the draft, would the consequences have stopped him any more than, say, tossing a Molotov cocktail into a cop car?
Still, it was tone deaf of the justices not to let the Marshal treat them the same as everyone else and, to the extent possible, show they were no more at fault than the staff. And there is some reason to believe that affidavits signed by justices would mean something. After all, would any of them lie under oath?
The justices could still choose to sign affidavits today, to fill the gap and assuage the public’s cries, and if one refused, we would have our culprit, right? But chances of that happening are slim to none, and the Marshal clearly couldn’t make them, and comity between justices makes one burning another unthinkable. Sure, the report was unsatisfying because it failed to nab the justice (or his wife named Ginni) you’re certain did it. But what was the Marshal supposed to do?