Supreme Court investigation of Dobbs leak concludes without identifying leaker

 January 21, 2023

Following the unprecedented leak of a Supreme Court draft opinion in May 2022 -- the Dobbs decision that overturned Roe v. Wade -- Chief Justice John Roberts ordered the Marshal of the Court to conduct an investigation into how that draft ruling had been obtained by Politico.

A final report on that probe has finally been released, though it only revealed that the investigation was inconclusive and the Marshal was unable to positively identify who was responsible for the leaked opinion, the Tampa Free Press reported.

That is both disappointing and concerning, as the leak of the Dobbs draft, in addition to being an unprecedented breach of the court's important confidentiality, also spurred abortion rights supporters to perpetrate an assassination attempt against Justice Brett Kavanaugh, conduct unlawful protests outside the private homes of justices, and engage in vandalism and violence against pro-life individuals and organizations.

"Unable to identify a person responsible"

The public report included an opening statement from the Supreme Court that described the leak as "one of the worst breaches of trust in its history" and said it was "no mere misguided attempt at protest. It was a grave assault on the judicial process."

The statement further noted that Marshal Gail Curley's team of investigators had interviewed around 100 court employees and narrowed its search to around 82 individuals who had access to the draft opinion, but that "the team has to date been unable to identify a person responsible by a preponderance of the evidence."

However, the team would continue to review the gathered data, and "a few other inquiries remain pending," per the statement, and, "To the extent that additional investigation yields new evidence or leads, the investigators will pursue them."

Recommendations but no conclusions

The 20-page report itself from Marshal Curley began with a summary that largely ruled out an outside hack of the Supreme Court's IT system as the origin of the leak, though it acknowledged the possibility, and noted that all 97 employees interviewed had denied responsibility and even signed sworn affidavits under penalty of perjury to that effect.

The Marshal did, however, appear to fault the court's relaxed processes for handling sensitive materials due to the pandemic as having "created an environment" where it became "too easy" for such sensitive materials to be removed and increased the risk of "both deliberate and accidental disclosures of Court-sensitive information."

The report went on to highlight the numerous court rules and employee Code of Conduct provisions, as well as several applicable federal statutes, that clearly prohibited the leak of a draft opinion prior to public release.

In the end, though the Marshal was unable to identify the leaker, she did make a number of recommendations for the court to follow to help reduce the risks of a similar breach occurring in the future.

Justices were interviewed but didn't have to sign affidavits

Throughout this entire ordeal, there has been rampant speculation on the left and right that the Dobbs leaker isn't a clerk or court employee but rather is one of the nine sitting justices. Speculators on the left have suggested a conservative justice leaked the draft to firm up the support of the moderate jurists, while speculators on the right have pointed to a liberal justice being the leaker to rile up the Democratic Party's base and pressure the moderates into supporting abortion rights.

Perhaps in response to such speculation and complaints from some that the public report made no mention of the nine justices in relation to the investigation, Marshal Curley released a separate statement Friday to try and address those concerns.

"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," Curley said. "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."

Unfortunately, neither the inconclusive report nor the separate statement about the justices will do much to quell the rampant speculation and rumors about who the Dobbs leaker might be, and perhaps even more unfortunate is the likelihood that such a breach may occur again as the initial culprit's evasion of accountability could convince others that they can leak confidential court information with impunity.

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