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By any fair measure, it was one of the most dramatic leaks in the history of U.S. judiciary. On Monday, May 2, 2022, Politico reported on a leaked draft opinion, written by Justice Samuel Alito, leaving no doubt that Republican-appointed Supreme Court justices were poised to overturn Roe v. Wade.
Naturally, much of the focus was on what the leaked draft said, and for good reason: The Roe precedent was a popular legal protection, shielding reproductive rights for millions for nearly a half-century. The fact that conservative justices were poised to roll back the clock meant the nation would soon feel a political/legal/health care earthquake.
But lurking overhead was a different kind of question: Who leaked the draft to Politico?
The Supreme Court was determined to find out. Indeed, Chief Justice John Roberts, the day after the original article was published, confirmed the validity of the leaked document, and announced that an investigation had begun.
“To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. He called the leak “a singular and egregious breach” that was “an affront to the court.”
Roughly eight months later, it now appears investigators failed to identify the culprit. NBC News reported:
The Supreme Court on Thursday announced that it has been unable to identify the person who leaked an unpublished draft of an opinion indicating the court was poised to roll back abortion rights. In an unsigned statement, the court said that all leads had been followed up and forensic analysis performed, but “the team has to date been unable to identify a person responsible by a preponderance of the evidence.”
The full, 20-page findings from Supreme Court Marshal Gail Curley has been published online for the public.
It explained that as part of the probe, investigators interviewed 97 court employees, each of whom denied responsibility. “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," the report read.
There’s some ambiguity as to whether or not the justices themselves count as court “personnel” and whether any of the nine sitting jurists were questioned as part of the process.
If not, that seems like a rather important oversight, given the fact that the leak might have come from a justice.
Curley’s report added, “Investigators continue to review and process some electronic data that has been collected and a few other inquiries remain pending. To the extent that additional investigation yields new evidence or leads, the investigators will pursue them.”
In other words, it’s at least possible that today’s document is not the final word on the subject.
Nevertheless, this marks an embarrassing chapter for the institution: Not only did Republican-appointed justices undo a constitutional right Americans had come to rely on, undermining the judiciary’s reputation and credibility, the Supreme Court did so while failing to keep its house in order, and then failing to determine how and why that happened.
Update: Donald Trump responded to today's report by calling for the incarceration of the journalists who received the leak. The former president's hostility toward the First Amendment and democratic institutions remains unchanged.