On Thursday, the Supreme Court released a report on its investigation into the historic leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade. The draft leaked to Politico in May 2022, nearly two months before the court issued its final opinion in Dobbs. Now, more than eight months later, the report reveals that the court has still failed to identify the leaker. It does state that Michael Chertoff—a former federal judge and secretary of homeland security for George W. Bush—reviewed the court’s probe and found that it had exhausted all “useful investigative measures.”
Slate’s legal reporters Dahlia Lithwick and Mark Joseph Stern discussed the (long-anticipated!) report as they combed through its findings following its publication. Their conversation is printed below.
Mark Joseph Stern: So, Dahlia, the Supreme Court finally released the report that justices have been teasing since September. The report discloses a bunch of new information about the investigation and the court’s operations. We now know that Marshal Gail Curley and her staff “conducted 126 formal interviews of 97 employees.” We know they undertook a “forensic” analysis of the court’s IT, then scrutinized employees’ personal phone records and search histories. We even know they read a bunch of random tweets speculating about the identity of the leaker.
What we still don’t know: Who the leaker is! The marshal was “unable to determine” their identity “by a preponderance of the evidence,” which just means they still have no idea who did it. That anticlimax makes the whole thing a bit of a flop. But the report does reveal some interesting tidbits about the inner workings of the court that are catnip for court-watchers like us. The whole building, for instance, appears to operate under ridiculously sloppy IT practices. And it turns out some employees tell their spouses the outcome of decisions in advance—which is kind of a big deal! What’s your first takeaway?
Dahlia Lithwick: I mean, look: I wrote some snarky thing about Harriet the Spy last week and all the ways the chief justice didn’t seriously want to get to the bottom of this thing. It’s why this investigation wasn’t outsourced to the FBI or some investigatory entity with real teeth, and it’s why—it appears—former clerks, the justices, and the justices’ spouses were seemingly not meaningfully investigated. I think my takeaway is that this should not have been the greatest unsolved mystery of the century, and yet somehow it was. Somehow, an unprecedented act of terrible violence and betrayal done to the judiciary and the country wasn’t solved because … either nobody really wanted it solved, or it’s truly the Loch Ness monster of our time. Basically, I don’t think the court wants us to know who did it. And I’m actually no longer certain the justices want to know themselves.
Stern: Well, even if somebody really wanted it solved, they’d be stymied by the court’s own terrible security policies. The report says that investigators couldn’t review print jobs because … networked printers had “very little logging capability.” And a lot of printers weren’t even connected to the court’s networks! At least one employee had a printer at home from which investigators were mysteriously “not able to retrieve any logs.” Security protocols around handling of hard-copy drafts—especially taking them home—is also incredibly lax. And 82 employees had access to the draft, which suggests document-control issues.
Honestly, after reading this report, I’m surprised it took this long for someone to leak a draft opinion. In a way, it actually speaks well of court employees: Many have clearly had ample opportunities to leak drafts to the press and declined.
Lithwick: Right. Recall that not so long ago we were chuckling that justices handwrote notes on cream-colored paper. It turns out that between COVID and just generalized old-timeyness, Slate probably has more secure printing protocols than the court does. One thing I keep ruminating about—connected to the new reporting (and the justices’ own statements) about their mistrust of one another, and how it’s hampering relationships among the Nine—is whether it’s in the court’s interest to actually find the leaker. Like, what’s the marginal cost of hoping this blows over, as compared to the cost of everyone knowing that someone in the next chambers over is a traitor? I actually think maybe the chief justice is on team This Will Pass and We Will All Live to Call Balls and Strikes Once More.
I guess that raises the question: Did the investigation investigate the justices themselves at all? How would Gail Curley have even managed to sit down a justice and shine a light in their face in a smoke-filled room, anyhow?
Stern: I think we can safely say that the investigators did not look into the justices. The report distinguishes “employees” (permanent staff plus law clerks) from justices. For instance, it says that 82 employees had access to the draft “in addition to the justices.” More importantly, there’s absolutely no indication that a single justice was interviewed.
On one hand, that makes sense because the justices have absolute power and are subject to zero oversight. Of course they don’t want to put themselves through that wringer. But on the other hand it makes zero sense because conservative justices had the strongest incentive to leak the draft! We know that Chief Justice John Roberts was trying to peel off Justice Brett Kavanaugh for a “compromise” position that wouldn’t have formally overruled Roe v. Wade. A conservative justice like Samuel Alito or Clarence Thomas would have had good reason to leak the draft to lock in Kavanaugh’s vote. Separately, Alito has been accused of leaking the outcome of Hobby Lobby, and Thomas’ wife, Ginni, is a hardcore anti-abortion activist who was interviewed by the Jan. 6 committee due to her support of Donald Trump’s coup. These two justices are, um, not exactly suspicionless!
And yet the only gesture toward a possible motive in the Supreme Court’s statement about the report was a suggestion that the leak was a “mere misguided attempt at protest.” That unsupported speculation promotes the theory, popular among Republicans, that a liberal clerk is at fault. Which I think defies logic.
Lithwick: I guess I find myself asking the question I’ve asked myself all year: Was this an authorized leak? Did a justice leak it or tell someone to leak it? Isn’t that ultimately the story of the leaks around the ACA case about Roberts allegedly “switching sides”? I find that so much more plausible than disgruntled clerks sending messages to the justices and the public, but it seems as if the answer to that question is existential for the justices themselves. Employees, clerks, systems failures. That stuff comes and goes, and as the report suggests, those mechanisms can (and should) be hardened. But if it were a justice, wouldn’t the justices themselves absolutely need to know? And was the decision made to sort of not find out because there’s absolutely no way the court can go on even pretending to be a “normal” functioning deliberative body if it came from the top, or was authorized from the top? I guess for the nine justices, the only thing worse than not finding out the answer to that question might be finding it out.
I know how you feel about all the magical thinking and fairy tales Justice Breyer used to offer about how it’s not as bad on the inside as it looks outside. But maybe now that it’s bad on the inside and bad on the outside—and also the country is watching, and the justices think that they are going to be assassinated—the fiction that nobody believes it could be a justice is the only thing still holding the court together.
