Probe of leak at high court insufficient
On June 24 of last year, the U.S. Supreme Court set off a national earthquake by overturning Roe v. Wade, and with it nearly 50 years of case law, by ruling that the Constitution doesn’t give women a right to an abortion. The 6-3 decision in Dobbs v. Jackson Women’s Health Organization, written by Justice Samuel Alito, may have shaken this nation but it surprised no one.
That was because almost eight weeks earlier, on May 2, Politico published a leaked draft of the majority opinion. Two countering theories emerged as to who was responsible for the leak.
U.S. Sen. Ted Cruz was among those casting blame at the liberal side of the court — “some left-wing law clerk” as he put it.
“I hope whoever is responsible for this,” Cruz said, “not only is fired instantly but is prosecuted and serves real jail time for violating the confidences of the Supreme Court.”
The second speculation was that the leak came from the conservative wing of the court, a clerk, to lock in the five justices who had voted to support striking down Roe.
Chief Justice John Roberts called the leak a “singular and egregious breach of trust” and ordered an investigation.
During the the investigation, the New York Times published a story in November that may have altered the perception of the leak’s origin.
The Times reported how the Rev. Rob Schenck, a former anti-abortion leader, wrote in a letter to Roberts, and also reiterated in interviews with Times reporters, that he was told the outcome of another landmark case (Hobby Lobby) involving contraception and religious rights weeks before it was announced in 2014.
Alito also wrote that majority decision, and the couple who gave Schenck the heads-up about the decision had dined with Alito the night before.
On Jan. 19, the Marshal of the U.S. Supreme Court released a 20page report saying that its investigative team had been unable to “identify a person responsible by a preponderance of the evidence.” This was a conclusion that satisfied no one.
Cruz tweeted, “It’s deeply troubling that the Dobbs leaker still has not been found. The Supreme Court depends on trust to deliberate, and this leak is incredibly damaging to the Court’s ability to function normally. The leaker must be brought to justice!”
We agree with Cruz on everything but the last sentence. As a news organization, we like leaks, encourage leaks and protect leakers because the information they share often serves transparency and the public good.
But the way in which this investigation was conducted offers no transparency and, instead, clouds this leak.
The investigation comprised 126 interviews with 97 court employees, determining 82 of them — not including the nine justices — had access to the draft. Their printer logs, search histories, court-issued laptops and cellphones were searched.
The court concluded none of these employees was responsible for the leak.
The initial report didn’t mention if justices or their spouses had been interviewed.
A day later, after criticism from the left and the right over this omission, Marshal Gail A. Curley said the justices and their spouses were interviewed but unlike their 87 subordinates, they didn’t have to sign sworn affidavits. “During the course of the investigation, I spoke with each of the Justices, several on multiple occasions,” Curley said in a statement. “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.”
In other words, 82 employees who could have lost their jobs for leaking the draft opinion have been exonerated. Who else is left to consider than the justices, who serve with the benefit of lifetime appointments, and their spouses? Why are they not put under oath?
And how does this glaring hole in the investigation affect the functioning of the court, let alone the public perception of an institution that should be free of political considerations?
Again, we don’t support the investigation of leaks. But we do question investigations that are so incomplete they erode public trust in an institution that serves the public.
Failure to question justices, spouses under oath hurts court’s credibility