Last May, about six weeks before the Supreme Court released its opinion in Dobbs v. Jackson Women’s Health, in which conservative justices overturned Roe v. Wade, a leaked version of that opinion appeared in Politico. The Politico draft turned out to be almost exactly what Justice Samuel Alito wrote in his final majority opinion. Whoever gave the opinion to Politico had access to the court’s deliberations at the highest level.
The conservative justices, their media enablers, and the right-wing conspiracy-making machine worked itself into a tizzy over the leak—not, mind you, over the fact that the Supreme Court was poised to overturn 50 years of settled law and take away a constitutional right for the first time in American history, but over the breach of Supreme Court protocol. There have been leaks out of the Supreme Court in the past, but not nearly as often as from the other branches of government. Apparently, leaking to the press was a bigger concern for the court and its watchers than revoking a person’s right to choose. Eventually, Chief Justice John Roberts ordered a full investigation into the breach.
A report on that investigation, conducted by the marshal of the Supreme Court and reviewed by former Homeland Security secretary and über-Republican Michael Chertoff, is now available to the public and… they didn’t find the leaker. The report says the court has been “unable to identify a person responsible by a preponderance of the evidence.”
I can’t say I was surprised. I never thought they’d find the leaker. I never even thought they wanted to find the leaker, given the possibility that the leak emanated from conservative hands. From the start, the leak and the attendant pearl-clutching over it has been a giant distraction from the true level of corruption and bias emanating from the Supreme Court—a distraction fueled by a media that is more comfortable repeating the gossip behind the latest Popsugar tweet than it is reading legal opinions and tracking the dark-money forces that bought them. Now, this report reveals that the very investigation into the leak was a shambolic exercise that almost appears as if it had been designed to produce no actionable results.
To start, the report does not explicitly say that the justices, or their spouses, were investigated. Instead, it says: “The investigation focused on Court personnel—temporary (law clerks) and permanent employees—who had or may have had access to the draft opinion during the period from the initial circulation until the publication by Politico.” It’s unclear that the justices would be classified as “permanent employees” in the context of this report. As legal reporter Chris Geinder puts it: “But, at the end of the day, this is really all that matters: The justices themselves were not asked questions or investigated, per what I gather from the Marshal’s report.” The Supreme Court’s public information office has not clarified whether the justices themselves were questioned. Either way, I’m sure the justices all pinkie-promised that they didn’t leak to Politico.
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It seems to me that any thorough report would have been laser-focused on the actions of the justices and their spouses, if for no other reason than to give the public confidence that the nine unelected wizards were above reproach. That would seem especially necessary given what’s already been reported about these people. Alito, who, remember, is the actual author of the Dobbs opinion that was leaked to Politico without the joint dissent from the three liberal justices, has been accused of leaking the details of the court’s decision in a different case, Hobby Lobby, to a select cabal of friends and dinner-party guests. Any serious investigation of this leak would surely have focused on the guy who wrote the opinion who also might have leaked sensitive information in the past. Or maybe the investigators would have at least asked a question of the spouse of a Supreme Court justice whose job seems to be e-mailing government officials to pressure them to support a coup d’état. I don’t know who leaked the Dobbs opinion, but I sure as hell know whom I’d ask about it.
But this investigation was not serious. Even if it turns out that the people closest to the decision were interviewed, the court’s investigative techniques leave a lot to be desired. Indeed, The Wall Street Journal (which itself seemed to be hooked into a lot of nonpublic information about the deliberations in the Dobbs case before the opinion came out) recently reported this nugget about how the investigation was proceeding: “The interviews were sometimes short and superficial, a person familiar with the matter said, consisting of a handful of questions such as ‘Did you do it? Do you know anyone who had a reason to do it?’ Investigators relied in part on publicly available information about court employees to develop theories, the person said.”
It’s worth pausing for a moment to reflect that this is the same institution that claims to have clairvoyance into the hearts and minds of the nation’s founders—to know whether James Madison wanted people to have an Uzi on the subway—but its probative investigation into who spoke out of turn to a reporter amounted to asking people to self-incriminate.
Time and again, the court insists on its ability to police itself. It resists adopting a code of ethics and scoffs at attempts to hold its justices accountable. Now, this joke of an investigation is yet further proof that the court is ill-equipped to regulate itself. The justices have perhaps gotten so used to bullying people weaker than themselves (their clerks, the lawyers who genuflect to them during every argument, and lower-court judges who want to be on the Supreme Court someday) that they have apparently forgotten what it looks like to be held accountable by an equal.
In the end, the investigators found no breach of the Supreme Court’s IT protocols. That means that whoever leaked it didn’t use their official e-mail account. Since the leaker was smart enough not to use work e-mail, and didn’t spontaneously confess, the investigation came to nothing. For his part, Chertoff suggested that the court update some of its rules regarding the distribution of documents, whether hard copy or over e-mail.
Which is all to say that none of this matters in the least. No state secrets were shared or stolen. No laws were broken. And, frankly, nobody even needed the leak to know that Alito and his conservative buddies were going to overturn Roe v. Wade: Simply paying attention to what these conservatives said publicly and wrote in the past was enough information for everybody except Susan Collins to know what was coming next.
Next time the Supreme Court claims to be seriously investigating a leak of their deliberations, I hope they save us the faux-outrage and skip right to the part where the man in the hot dog costume says, “We’re all trying to find the guy who did this.” At least that will bring the farce to its inevitable conclusion more quickly.
