The Supreme Court’s Report into the Dobbs leak came up empty. What more could be done?

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In early May 2022, Josh Gerstein and Alexander Ward,writing in Politico, published a bombshell story: the United States Supreme Court had voted in the case of Dobbs v. Jackson to overturn Roe v. Wade. Roe is the landmark 1973 decision holding that the constitution included an unenumerated right for women to have access to an abortion. While the media has leaked pending Supreme Court decisions in the past (such as Roe in 1973), the article in Politico also included Justice Samuel Alito’s original draft opinion in Dobbs - a first in the Court’s  history. Ultimately, the Supreme Court overturned Roe in an opinion that contained few noticeable differences from the leaked draft (SCOTUSBlog).

A day after the Politico article was published, Chief Justice John Roberts released a statement acknowledging the legitimacy of the leaked draft opinion. He directed Supreme Court Marshall Gail Curley to launch an investigation into the leak. In January 2023, the Court released the report, which described “months of diligent analysis of forensic evidence” and interviews of “nearly 100 employees,” including “82 employees [who] had access to electronic or hard copies of the draft opinion” (SCOTUSBlog). While unclear in the initial report, Curley clarified that her investigation included speaking with all nine Justices. Upon following all leads, her investigation concluded that none of the Justices or their spouses were involved with the leak (Vladeck). 

Despite Curley’s efforts, the investigation was “unable to identify a person responsible by a preponderance of the evidence” for the leak. A 20-page statement from Curley, as part of the report, conceded that the “pandemic and resulting expansion of the ability to work from home…created an environment where it was too easy to remove sensitive information from the building.” Additionally, there was an “absence of mechanisms to track print jobs on Court printers and copiers, and other gaps in security or policies,” and some “of those interviewed admitted to telling their spouses about the draft opinion or vote count.” (SCOTUSBlog). A New York Times article gave further light on the lax security measures, revealing that burn bags that were “holding sensitive documents headed for destruction sat around for days [and] internal doors swung open with numerical codes that were shared widely and went unchanged for months” (The New York Times).

As a result of the leak investigation coming up empty, some have asked why the Federal Bureau of Investigations (FBI) was not in charge of the investigation. Curley’s primary task relates to security measures at the Court, and she is best known for saying, “oyez, oyez, oyez!” as the Justices enter oral arguments. Unlike the FBI, the Supreme Court Marshall does not have subpoena power, and the Supreme Court police have little to no experience investigating a leak of this manner. However, the Marshall leading the investigation is also part of the importance of the system of checks and balances between the three branches of government. By delegating the investigation to the FBI, the Supreme Court would be welcoming the Executive Branch inside the Court’s marble walls. The FBI would gain information about the inner workings of the Court and this would likely have resulted in the Justices, and other Court employees, being interrogated by members of another branch. Texas Law Professor Steve Vladeck explained that allowing an FBI investigation would also “set a precedent for similar interventions in the future—perhaps in circumstances in which the outside assistance was less…welcome” (Vladeck).

Chief Justice Roberts has also been adamant about judicial independence. In his 2021 year-end report, Roberts stressed that “the Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government” (The New York Times). The Roberts Court has not only talked of the Court serving as a separate branch of government that checks the other branches but has acted upon such. This can be seen in just the past year with the Court’s decisions striking down President Joe Biden’s executive order requiring COVID-19 vaccinations for employees of companies with 100 or more employees,and ruling parts of the Bipartisan Campaign Reform Act of 2002 to be unconstitutional (Vladeck).

The Supreme Court’s investigation has commenced, and no culprit has been found, but that is where a new investigation may begin. Republican Congressman Jim Jordan, who also Chairs the House Judiciary Committee, has indicated that the committee will begin a probe into the leak. From there, more legal questions will emerge regarding checks and balances. Would the Judiciary Committee subpoena internal Supreme Court information? Would they require justices to testify under oath? There would also be First Amendment questions if the committee decided to question Gerstein and Ward on their reporting for Politico. 

The Dobbs leak significantly damaged the Court’s reputation among the general public and the internal dynamics of the Court. The investigation did little to answer existing questions; only time will tell if they will be answered.

References

Howe, Amy. “Supreme Court investigators fail to identify who leaked Dobbs opinion.” SCOTUSBlog. Accessed February 11, 2023. https://www.scotusblog.com/2023/01/supreme-court-investigators-fail-to-identify-who-leaked-dobbs-opinion/

Kantor, Jodi. “Inside the Supreme Court Inquiry: Seized Phones, Affidavits and Distrust.” The New York Times. Accessed February 11, 2023.

https://www.nytimes.com/2023/01/21/us/supreme-court-investigation.html

Vladeck, Steve. “The Leak Investigation and the Separation of Powers.” One First. Accessed February 11, 2023.

https://stevevladeck.substack.com/p/11-the-leak-investigation-and-the