DANIEL VAUGHAN: We still know little about the Supreme Court Dobbs leaker

 January 16, 2023

All is quiet at the Supreme Court, and that's odd for multiple reasons. First, the Supreme Court has yet to issue a single opinion from the current term, which started in October. That's a record. And second, we still know nothing about the person who leaked the Dobbs opinion overturning Roe v. Wade. Put both together, and you get a Supreme Court acting strange.

The first point on quietness is weird. The Court has a full docket of cases, some even over explosive topics. Adam Feldman at Empirical SCOTUS notes, "The Court has yet to release a single slip opinion thus far in the 2022 Term. This in and of itself is a record for the slowest release time in the Court's history."

Greg Stohr at Bloomberg Law adds, "The four-month drought has raised new questions about the court's internal dynamics. The next ruling will be the first since the court closed out a tumultuous term that featured a decision overturning the constitutional right to abortion as well as the unprecedented leak of that opinion."

The drought of opinions and the Dobbs leak.

It's hard to avoid looking at the current drought of opinions and thinking about the Dobbs leak from last term. The leaking of a draft majority opinion of a landmark opinion was unprecedented and breached centuries of protocol at the highest court in the land.

Fortunately, that breach of protocol did not sway the Supreme Court's opinion. Conservatives on the court remained brave and struck down Roe and Casey despite the firestorm. But the question remains: who leaked the draft opinion?

On that point, the Wall Street Journal reports that the investigation is ongoing. "Supreme Court investigators probing the May leak of Justice Samuel Alito's draft opinion overruling Roe v. Wade have narrowed their inquiry to a small number of suspects including law clerks, but officials have yet to conclusively identify the alleged culprit, people familiar with the matter said."

Conservatives leak about the investigation.

This reporting is also a leak from the Supreme Court. It's not as rare, however. We know that Ruth Bader Ginsberg leaked for years about the Court's internal deliberations to CNN and NPR. When it comes to the Supreme Court, the outlet that gets the information tells you which side the leaker is on.

For instance, in the spring of 2022, the Wall Street Journal ran a curious editorial on the abortion case. The Journal wrote, "The Justices first declare their votes on a case during their private conference after oral argument, but they can change their mind. That's what the Chief did in the ObamaCare case in 2012, much to the dismay of the other conservatives. He may be trying to turn another Justice now."

We knew both at the time and now that this was less an editorial piece and more a public shot at Roberts to try and stop saving the abortion right. Roberts was trying to save abortion, and the conservative side of the Court was leaking this to a conservative outlet like the WSJ.

Likewise, the Journal reporting about the ongoing investigation into the draft opinion leaker is likely from the Court's conservative side. If a liberal were trying to get out information about the investigation, we'd see it in a place like CNN, NPR, the New York Times, or the Washington Post. The left has many outlets they'd lean on, whereas conservatives have fewer options.

Law clerks are the likely culprit.

When the leak first emerged, Sen. Ted Cruz opined that he thought one of the law clerks was most likely the culprit. Everyone in the know believes a clerk is the most likely culprit, which is why it's noteworthy that the Journal's reporting says "at least one law clerk is among those suspected of leaking the draft abortion ruling in May."

The Journal suggests that more than one clerk could be involved, but at least one is a suspect. Odds are, everyone, including the law clerks themselves, suspect one specific law clerk. At the time of the leak, Court insiders pointed towards 1-3 options among the clerks.

That's important because the Journal adds, "Investigators relied in part on publicly available information about court employees to develop theories, the person said." That means the conclusions of the Supreme Court's investigation are likely the same as the beliefs among Court watchers.

Without firm evidence, it'd be unwise to single out names in columns or reporting. But from the Journal's reporting, people seem to know who leaked the opinion. The question is whether or not we'll ever see the end of the story.

Supreme Court legitimacy at stake.

The Wall Street Journal adds one more thing: "Speaking at a judicial conference in September, Justice Neil Gorsuch said that Chief Justice Roberts had appointed an internal committee to oversee the investigation and that it was expected to issue a report. The court hasn't said whether the report will be made public."

The only chance we have at learning who leaked the opinion will come from that report. That requires an account to be finalized and get released publically. If it isn't released publically, House Republicans should seek to get their hands on any report done by the Supreme Court. Restoration of faith in the Supreme Court requires learning who leaked the draft opinion.

Whoever did it cannot continue with their life as if nothing happened. That person committed a serious breach of judicial ethics. They deserve to get called on the carpet by the legal profession. John Roberts may want to hide the perpetrator, but our government's health requires sunlight.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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