New Supreme Court report fails to identify leaker of Roe v. Wade draft opinion

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The Supreme Court released a report stating that, after a months-long internal investigation, the leaker of a draft opinion overturning Roe v. Wade last year couldn’t be identified.

The leak shattered the image of the Supreme Court, which has long prided itself on maintaining proper decorum and on keeping as confidential the deliberations of the justices in cases argued before the court.

The day after the leak, Chief Justice John Roberts said there would be an investigation.

“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” he said at the time. “The work of the Court will not be affected in any way.”

But despite his assurances, the unprecedented leak reportedly caused internal disruptions at the court and changed the atmosphere behind-the-scenes while giving rise to rampant speculation about the motives of the leaker or leakers.

Some said the leak was intended to generate a public backlash that would intimidate the conservative justices into leaving Roe intact, while others speculated that it was calculated to pressure the conservative justices, who had already signaled a willingness to reverse Roe, to stay the course and actually do it.

Supreme Court justices, including Justice Samuel Alito, who wrote both the draft and published versions of the opinion, previously described the leak of the document as a “grave betrayal.” In recent months, various justices said an update on the progress of the investigation was coming, but no updates followed until the formal release of the report.

The leak was followed by months of raucous protests at the homes of the conservative justices in Maryland and Virginia, targeted harassment of justices in public by left-wing activists, and angry words in Congress. One man was arrested and charged with plotting to kill Justice Brett Kavanaugh.

The report (pdf) on Supreme Court Marshal Gail Curley’s investigation was issued midday on Jan. 19.

The Supreme Court ruled on June 24, 2022, in Dobbs v. Jackson Women’s Health Organization that there’s no constitutional right to abortion, overturning Roe v. Wade, the 1973 precedent that legalized abortion nationwide. The Dobbs ruling returned the regulation of abortion to the states.

Five conservative justices voted to reverse Roe. Roberts, also considered a conservative, voted to uphold the restrictive Mississippi abortion law in question but wrote that he wouldn’t have overturned Roe. Three liberal justices issued a strongly worded joint dissent.

Somehow, an early version of the draft majority opinion in Dobbs made its way to the media, a first-of-its-kind leak of a full high court opinion. Politico published the draft document, dated Feb. 10, 2022, on May 2, 2022, without disclosing its source. In the end, the draft document wasn’t much different than the official published opinion.

“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 Supreme Court said in a statement, citing the report.

“In following up on all available leads, however, the Marshal’s team performed additional forensic analysis and conducted multiple follow-up interviews of certain employees. But the team has to-date been unable to identify a person responsible by a preponderance of the evidence.”

The report states that the court’s computers didn’t appear to have been hacked. It’s “unlikely” that the court’s information technology systems “were improperly accessed outside the Court.”

The investigation itself is continuing, according to the report.

“Investigators continue to review and process some electronic data that has been collected and a few other inquiries remain pending. To the extent that additional investigation yields new evidence of leads the investigators will pursue them,” it reads.

Former Homeland Security Secretary Michael Chertoff, who was asked to assist the court, said that “the Marshal and her experienced investigators undertook a thorough investigation within their legal authorities, and while there is not sufficient evidence at present for prosecution or other legal action, there were important insights gleaned from the investigation that can be acted upon to avoid future incidents.”

In a statement accompanying the report, Chertoff recommended that, in the future, the distribution of hard copy and email versions of sensitive documents, along with access to sensitive information on mobile devices, be restricted.

Lawmakers and others quickly reacted to the release of the long-awaited report.

Veteran court watcher Curt Levey, president of the Committee for Justice, said he was “disappointed.”

“If you want to deter future repeats of this kind of thing, which certainly is very important for the legitimacy of the court, then you would have wanted to identify a specific individual, hold them responsible, perhaps punish them,” he told The Epoch Times in an interview.

“The fact that nobody got caught makes it more likely that this will happen again. Even once was a blow to the legitimacy of the court, to the cohesion of the court. And God forbid it happens again.”

Rep. Mike Johnson (R-La.) said the failure to identify a culprit in the leak is “dangerous and inexcusable,” noting that it would “jeopardize the future operations of our nation’s highest court.”

Rep. Lauren Boebert (R-Colo.) wrote on Twitter that not fingering a leaker is “totally unacceptable and a serious threat to one of our three branches of government. Very disappointing.”

U.S. Department of Justice officials didn’t respond by press time to a request by The Epoch Times for comment.

Zachary Stieber contributed to this article.

This article by Matthew Vadum appeared Jan. 19, 2023, in The Epoch Times.