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The justices can still do the right thing in the Dobbs leak probe

A major failure of the court's investigation was that the justices didn't sign affidavits denying they leaked the draft opinion. But they still can.


When the Supreme Court announced Thursday that its internal investigation failed to find the Dobbs leaker, I was skeptical that the justices themselves were really investigated.

As it turns out, they weren’t — at least not to the same extent as their clerks and staff, who were made to sign affidavits swearing that they didn’t leak the draft opinion overturning Roe v. Wade.

That fact alone is enough to doom whatever integrity the effort had. Indeed, it was so bumbling that the marshal, Gail Curley, an employee of the court tasked with investigating it, had to issue this embarrassing statement the next day:

During the course of the investigation, I spoke with each of the Justices, several on multiple occasions. The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits.

There’s a lot packed into that short, sad confession. Noticeably absent is the word “interview” in relation to the justices. Contrast that with the marshal’s report issued the day before, which practically boasted about locking other employees into statements that would subject them to criminal charges if they lied. And on the subject of this “iterative process,” as the marshal called it, what questions did the justices ask Curley, and what did she tell them? Her statement raises more questions than answers.

And then there’s the kicker, the affidavit line — that the marshal “did not believe that it was necessary to ask the Justices to sign sworn affidavits.” Honestly, one can see how she would feel uncomfortable doing so. She was sort of set up to fail.

But even now, after some have written off the investigation as a joke at best, there’s still a simple but important step that the justices can take to make it less pathetic: sign affidavits denying the leak themselves, regardless of whether they were asked to do so.

There’s no illusion that the justices signing affidavits would fix the court's post-Dobbs trust deficit, where public opinion has been polling at historic lows. The New York Times reported over the weekend that even employees have “raised questions about whether the justices themselves have contributed to a decline in trust inside and outside the court.” (The latest news regarding Justice Brett Kavanaugh might not help.)

Yet, it couldn’t hurt for our life-tenured jurists to stoop down to the level of their employees and put their names on the same paper, swearing to the same truth. It would be such a modest step that it’s hard to understand why the justices wouldn’t have jumped at the opportunity — that is, unless denying the leak wouldn’t be true for someone on the bench.