Last May’s leak of the Supreme Court’s draft decision in Dobbs v. Jackson Women’s Health Organization severely damaged the high court’s ability to perform its essential function: that of debating and deciding — in secret — the most important legal issues our nation faces.
Dobbs, as we need no reminder, was the decision that reversed both the Roe v. Wade and Planned Parenthood v. Casey decisions, which created a right to abortion throughout the nation. Dobbs returned the question of whether states will permit or ban abortions to the states, as should have always been the case.
The need for the court to work in confidence is essential because without that ability, every justice on the court — and every law clerk — would be subjected to the personal threats that several members of the court faced when the draft opinion was leaked. Those threats to self and family were intended to intimidate the justices into changing their opinions before the decision was finalized.
Let’s remember that there were demonstrations outside the homes of Justices Samuel Alito, Amy Coney Barrett, Brett Kavanaugh, and Chief Justice John Roberts. Far worse, an armed man named Nicholas Roske was arrested outside Kavanaugh’s home and charged by the FBI with attempted murder. Roske allegedly spoke of murdering two other justices who were among the majority in the Dobbs decision.
The leak was a more effective insurrection against our constitutional system of government than the Jan. 6, 2021, riot at the Capitol.
As I wrote shortly after the leaked draft was published, the leak is a federal crime that should not go unpunished. Chief Justice Roberts tasked the court’s marshal, retired Army Col. Gail Curley, a West Point graduate and former Army judge advocate, with performing an investigation to identify the person or persons who leaked the draft. The results of her investigation were published by the court on Jan. 19.
The court’s statement says, in part:
All of this we do in the open. Along the way, though, it is essential that we deliberate with one another candidly and in confidence. That phase of the judicial process affords us an opportunity to hone initial thoughts, reconsider views, persuade one another, and work collaboratively to strengthen our collective judgment. It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal deliberations.
It goes on to say:
After months of diligent analysis of forensic evidence and interviews of almost 100 employees, the Marshal’s team determined that no further investigation was warranted with respect to many of the “82 employees [who] had access to electronic or hard copies of the draft opinion.”
The court’s statement says that the marshall consulted former Department of Homeland Security Secretary and federal judge Michael Chertoff who, the court said, reviewed the investigation and told the court that, “[a]t this time, I cannot identify any additional useful investigative measures.”
The marshal’s investigation included interviewing all nine justices and some 80 employees, including the court’s law clerks, who had access to the draft opinion. The court’s employees — not the justices — signed affidavits stating that they did not leak the draft opinion.
With all due respect to Chertoff, he is no expert in leak investigations.
What was needed was not only a review of all electronic communications available to a possible leaker — which was done at least on the clerks’ mobile phones and court computers — but an intensive and intrusive investigation. The justices, clerks, and all others who had access to the draft opinion should have been subjected to polygraphed questioning to try to determine the identity of the leaker.
Such polygraphs are routinely used to qualify people for government and contracting jobs that have access to top-secret information. There was no reason to exempt the justices, clerks, and court employees from such interrogations.
The court’s statement adds, “The Marshal reports that, ‘Investigators continue to review and process some electronic data that has been collected and a few other inquiries remain pending.’”
Does that mean that the justices’, clerks’, and employees’ home computers were subjected to penetrating searches? What investigation was made of their spouses? What computer software was employed in those and other searches? Or does that mean that the investigation has been thwarted and the identity of the leaker (or leakers) will never be discovered?
Sen. John Kennedy (R-LA) said, “Here’s my message to the leaker. Congratulations, butthead. You almost got a member of the United States Supreme Court killed and his family.”
Kennedy added, “I don’t mean any disrespect to the chief justice. I was disappointed in his report. I think this is the chief justice’s way of saying we’re not going to find out who the leaker is. And if we do now, we’re not going to tell you. We will move on. I think that’s a mistake.”
Kennedy is precisely right. The investigation should not be ended as it appears it has been. It should continue and — with due regard to the separation of powers — experts in leak investigations should be employed to ascertain the identity of the leaker or leakers. That means the FBI can’t be brought in, but people such as retired FBI, CIA, and NSA agents and other experts in such investigations should be hired to apply their expertise.
The leaker has created an atmosphere of fear and distrust in the court. No longer can the justices, clerks, and employees trust one another to keep the court’s confidence. In such an atmosphere, the Supreme Court will not be able to properly decide the weighty matters that come before it.
Unless the investigation reveals the leaker or leakers, the court will inevitably shy away from dealing with those matters as it needs to in order to protect our constitutional freedoms.