US Supreme Court investigates its own to find abortion ruling leaker
Justices’ law clerks among a dozen suspects identified who will have their phones and technology searched
A HUNT for the leaker of the Supreme Court abortion opinion has narrowed to a dozen potential suspects, with the marshal of the court expected to examine records from emails, phones and photocopiers.
The court has been thrown into turmoil after the draft of a majority opinion striking down the 1973 Roe v Wade ruling was published in one of the most momentous leaks in modern American history.
Chief Justice John Roberts launched an investigation into the “absolutely appalling” breach of trust, which will be led by Colonel Gail Curley, the marshal of the Supreme Court, who is a former Army lawyer.
Some of the world’s most forensic legal intellects will now turn to unmasking one of their own.
It came amid heightened security fears, with 8ft high fencing being erected at the Supreme Court, justices cancelling public engagements and being given extra protection after their home addresses were posted online and they received phone threats.
The marshal, and her Supreme Court police force, have the power to interview more than 50 people who had access to the draft, but it is not yet clear if they will question the justices themselves, or whether private security companies will be drafted in.
The FBI is not expected to be involved unless a criminal matter, such as computer hacking, arises.
Those with access to the 98-page document included the nine Justices and the four law clerks each of them have. The clerks are usually recent law school graduates.
According to Politico, which published the draft, five justices made an initial vote to overturn Roe v Wade, constituting a majority. Three Democrat-appointed justices voted against. Chief Justice Roberts’ position was not clear.
The initial question in the mole hunt is whether an anti-abortion conservative, or a pro-abortion liberal, would gain more from the leak.
A conservative could have hoped to “freeze” in place all five votes on the majority. Making them public could prevent any justice changing their mind before the court officially announced its opinion. But the prevailing view is that it was leaked by a pro-abortionist who wanted to create a public backlash.
However, the background may be more complicated than that. Indeed, there may have been more than one leak, and more than one leaker.
According to a theory posited by Scotusblog, the respected legal blog covering the Supreme Court, the opening salvo may have been an article published on April 26 by the Wall Street Journal editorial board.
It suggested that, behind the scenes, Chief Justice Roberts was trying to persuade Brett Kavanaugh and Amy Coney Barrett, the conservative justices, not to back a full overthrow of Roe v Wade, and to instead adopt a middle course.
The newspaper wrote: “We hope he [the Chief Justice] does not succeed.”
It also correctly predicted that, if there was a majority to strike down Roe v Wade, then Justice Samuel Alito would be writing the decision.
The report was said to have caused deep concern in the Supreme Court, and could have been a conservative attempt to stop Justice Kavanaugh and Justice Barrett changing their vote.
The leak of Justice Alito’s draft, days later, may have been a response from a liberal inside the court, seeking to heap pressure on Justice Kavanaugh and Justice Barrett to swap sides.
Supreme Court watchers have also called attention to the two reporters who wrote the story. One theory notes that a law clerk for the Democrat-appointed Justice Sonia Sotomayor had been quoted in a previous, unrelated article by Politico’s veteran legal affairs correspondent, who was the lead byline on the leak story.
However, the second byline was that of a national security reporter, who might be less expected to write about Supreme Court abortion rulings.
Politico said only that it received the document from “a person familiar with the court’s proceedings”.
Ted Cruz, a Republican senator and a former Supreme Court law clerk, said there was “zero” chance the source was one of the justices.
He said: “I think it is a law clerk, and very likely a law clerk for one of the three liberal justices. That means there are 12 likely suspects.
“There was one woke little Leftwing twit who decided to hell with his or her obligations … that they would, instead, try to sneak it out in order to put political pressure on the justices, and intimidate them into changing their vote. I think they are going to have left a paper trail. There will be emails or texts. We will find this person, and when they are found, they are going to be fired on the spot.”
While Supreme Court leaks are extremely rare, the original 1973 Roe v Wade decision was itself leaked by a law clerk. It appeared on the front of Time magazine, but only hours before the court announced its decision.
The Chief Justice at the time threatened lie-detector tests for law clerks but the culprit came forward voluntarily.