UPDATE (Friday, Jan. 20, 2022, 4:31 p.m. ET): Supreme Court Marshal Gail Curley said in a statement Friday that she "spoke" with each of the justices as part of her investigation into the leak but "did not believe that it was necessary to ask the Justices to sign sworn affidavits."
Read the full statement below:
"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."
That’s not too surprising. But what’s more troubling than the leak itself is how the court may have conducted the investigation: namely, that it's not clear whether the justices were subjected to the same investigative intrusions as their clerks and staff members.
The court marshal’s report, released Thursday, mentioned internal investigative steps taken. Among them were to ask "personnel" and "employees" who denied leaking to swear to the truth of those statements in affidavits:
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. ... [A]ll personnel who had access to the draft opinion signed sworn affidavits affirming they did not disclose the draft opinion nor know anything about who did. If the investigators determine any of these personnel lied, they could be subject to prosecution under 18 U.S.C. § 1001. ... At the conclusion of the initial interviews, each employee was asked to sign an affidavit, under penalty of perjury, affirming that he or she did not disclose the Dobbs draft opinion to any person not employed by the Supreme Court...
That is, the Supreme Court locked people into statements that could subject them to criminal charges down the road.
Social media lit up after the report’s release, with its vague wording leading many legal experts to ask the same question: Were the justices fully investigated along with their clerks and staff members?
The report isn't clear on that score. If indeed the justices haven’t been subjected to those same measures, then that’s reason enough not to take the effort seriously. (The Supreme Court’s public information office didn’t immediately respond to my multiple requests for more detail on the extent to which the justices have been investigated, including whether they were made to sign affidavits subjecting them to potential criminal charges like everyone else. I’ll be sure to update this post if and when I hear back.)
To be clear, whether to care about the investigation in the first place has been entirely optional on the public’s part. The leaked draft, published by Politico in May, didn’t expose state secrets or spies or anything of the sort. It’s true that Justice Samuel Alito, author of the leaked Dobbs v. Jackson Women’s Health Organization opinion, complained that the leak placed the justices at risk of assassination; Justice Brett Kavanaugh, one of the four Republican-appointed justices who joined Alito’s opinion, was the alleged target of such an attempt. But all the leak did was give people bound by the court’s rulings an early look at what the court was doing, and, lo and behold, in June, the court officially overturned Roe — as the leak showed it would.
One can understand why the justices wouldn’t want their work to leak. But if it’s the simple product of applying the facts to the law, then they shouldn’t have anything to worry about if the public gets a sneak peek every now and then. Indeed, according to the marshal’s report, investigators examined court employees’ phone records, presumably on the thinking that, if no one did anything wrong, then what would they have to hide? I’d ask the same questions of the justices if it's confirmed they didn't participate or weren't asked to participate in the investigation to the same extent as the people who’ve labored under them.
And recall that Dobbs hasn’t been the only subject of a potential court leak recently. There was last year’s explosive reporting about a religious right campaign to influence the conservative justices, which suggested that another Alito opinion, involving contraception, leaked back in 2014. The court hasn’t responded to that allegation with the institutional fervor that the Dobbs leaked has prompted. Yet, with public opinion of the court polling at historic lows, one imagines that the justices would want to clear that up one way or the other.
Perhaps the court views those allegations of an influence campaign and another potential Alito leak as unworthy of a response. Perhaps it doesn’t care. It has certainly acted that way, unbound by an ethics code and seemingly unbothered by that stunning lapse.
But Chief Justice John Roberts and his court have acted quite differently when it comes to the Dobbs leak, which it called in a statement accompanying the marshal’s report “one of the worst breaches of trust in its history.” The court should be more concerned with the public’s trust, which it might have gone some small step toward improving, by making it clear that the justices were willing to put themselves on the line at least to the same extent as their employees.