The Supreme Court has just released a statement and report on the remarkable—though not entirely unprecedented—leak of Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women’s Health Organization eviscerating Roe v. Wade and federal abortion protections last May. It will surprise exactly nobody to learn that the court's investigators were unable to pin down a culprit.
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In a statement, justices again fumed that the pre-ruling leak of Alito's draft, which turned out to be nearly identical to the court's final released version, represented an "extraordinary betrayal of trust." Chief Justice John Roberts tasked the Marshal of the Supreme Court, which is an actual position, with conducting a thorough review to find the leaker.
The Marshal now reports that after interviewing 97 court employees, combing through data records, and making everyone sign affidavits swearing that they weren't responsible for the leak, investigators have come up dry. It also doesn't sound like they expect the remaining threads of the investigation to lead anywhere.
From the beginning, it was clear that the court's investigation was going to be focused not on any of the justices themselves, but on law clerks and other court employees who had access to the draft. The report, of course, makes no mention of the popular public theory that one of the conservative justices leaked the draft themselves, through friends or family, perhaps as an early celebration of the Roe v. Wade strikedown that conservative judicial activists had been pressing for decades. It instead focuses on employees who had electronic access to the draft or had printed it out.
The main conclusion of the court's report? Internal Supreme Court security measures are so terrible that the investigative team didn't have a prayer of pinning down a culprit.
They found that certain employees emailed the draft document to other employees, with approval. There was no evidence discovered that anyone emailed the draft opinion to anyone else, although technical limitations in the Court’s computer recordkeeping at the time made it impossible to rule out this possibility entirely.
The investigators were not able to readily search and analyze all event logs because at the time the system lacked substantial logging and search functions.
In addition to the justices themselves, investigators determined that 82 employees had access to the opinion before its release. At least 34 people printed out hard copies, but there's no way to know for sure because, as the report notes, print logs for some court printers were never tracked anyway.
Notably, ahem, the report notes that "a few of those interviewed admitted to telling their spouses about the draft opinion or vote count" before its public release, a violation of court policies. Whether any of these employees were dressed in black robes and had to sit through Senate confirmations is notably left unsaid, and there's likely not a chance in Hades we'll be hearing another word about that.
So that, for now, is the functional end of the investigation. Since the court's investigation focused almost exclusively on clerks and other personnel, rather than the justices who wrote and were currently debating the draft opinion among themselves, the report largely ignores the theories that the leak resulted from an intentional delivery of the draft opinion from a sitting justice to an invested outside party or from, for example, the draft opinion being brought home to a justice's home office where it would be shared with an arch-conservative gadfly spouse who sells consulting services based on her personal, up-close access to the court.
It sure seems like we shouldn't discount the clear financial incentive a leaker might have if they were able to prove they had inside access to the court by providing, to a movement ally or possible client, the gritty details of an upcoming conservative triumph.
Or you could just look for "disgruntled" people, that works too.
Investigators carefully evaluated the statements and conduct of personnel who displayed attributes associated with insider-threat behavior – violation of confidentiality rules, disgruntled attitude, claimed stressed, anger at the Court’s decision, etc. – and also weighed behavior and evidence that would tend to mitigate any adverse inferences. Investigators also carefully evaluated whether personnel may have had reason to disclose the Court’s draft decision for strategic reasons.
This one will have to remain mysterious. It sounds like the next steps might be to retool "outdated" court information security systems so that future leakers have a better chance of getting caught.
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