U.S. Supreme Court Justice Neil Gorsuch said Thursday that the investigation into the leak of the draft opinion in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, is still continuing and that investigators will issue a report of those findings, but he made no promises that the results will be made public.
Speaking at the 10th Circuit Bench and Bar Conference in Colorado Springs, Gorsuch said that the “internal committee to oversee the investigation” appointed by Chief Justice John Roberts “has been busy, and we’re looking forward to their report, I hope soon.” How soon he would not say, nor would he say if that report would be seen by anyone outside of the Court. The conference organizers barred reporters from questioning Gorsuch or other judges participating.
Gorsuch continued, saying, “Improper efforts to influence judicial decision-making, from whatever side, are a threat.” Yes, from whatever side. “They inhibit our capacity to communicate with one another,” he said, chilling the communication between opposing justices, which “improves our final products,” he said. “I very much hope we get to the bottom of this sooner or later.”
Justice Samuel Alito’s anachronistic screed against abortion was leaked in early May of this year, weeks ahead of the final opinion. It showed precious little input from any dissenting justice, and was virtually identical to the final opinion. It’s not out of the realm of possibility that in the weeks between the leak and the decision, there might have been alterations inspired by one of the three liberals. In another universe, with another set of extremist justices and someone who is not Alito.
Given all we’ve seen from the Court’s extremist, Trump-packed majority, it seems likelier than not that if the investigation determines the leak came from their camp, that report will never see the light of day. That’s how they like to do things, after all. Look at all the radical and democracy-breaking decisions they issued from the shadow docket, without holding any hearings, with no transparency, and in unsigned decisions consisting of one or two sentences.
But if the leak came from the minority—a clerk, a justice—or from support staff—a janitor—we’re a lot more likely to hear about it.
All we know about the investigation is that it heightened already existing tensions in the Court, according to long-time court reporter Nina Totenberg at NPR. Terrified clerks considered getting lawyers, after the court asked them to sign affidavits and open up their cellphones to the investigators. They were in a no-win situation. Assert their right to get a lawyer and not turn over their phone, and they would immediately be under suspicion, a potentially career-ending situation.
On the other hand, the justices themselves are basically untouchable. No one can demand of them that they turn over cellphones or even cooperate with investigators. If one of the justices was responsible for the leak, we will probably never know.
There’s no code of ethics governing the Supreme Court, and the only remedy for dealing with a rogue justice is impeachment. Impeachment, or court reform and expansion. It’s long past time that Congress applied the same code of conduct to the Supreme Court as to every other federal judge.
It’s also time to impose other reforms, including court expansion, to make correct the horrific imbalance Trump and Mitch McConnell created with their court packing.