Remember this? It almost seems like history now after the full release of the Dobbs decision, and perhaps some would prefer it remain that way. Five months after the unprecedented leak of the draft opinion in the case that overturned Roe, we still don’t know who leaked it.
That will change, Justice Neil Gorsuch hopes. The investigation by the “internal committee” appointed by Chief Justice John Roberts continues, and may report its findings soon:
Justice Neil Gorsuch said Thursday that the Supreme Court’s investigation of the May leak of the draft opinion overruling Roe v. Wade was continuing, and that a report on the incident is coming.
“The chief justice appointed an internal committee to oversee the investigation,” Justice Gorsuch told the 10th Circuit Bench and Bar Conference here at the Broadmoor resort. “That committee has been busy and we’re looking forward to their report, I hope soon.”
But will the report be made public? Gorsuch wouldn’t comment on that, and reporters at the conference were not allowed to ask questions of the judges who spoke. It’s still the first public reference to the investigation in quite a while, which has led to the impression that the probe had either stalled or wasn’t being seriously pursued in the first place.
It’s really the first development since the end of the term, the WSJ notes:
Chief Justice John Roberts announced in May that the Supreme Court marshal would lead an investigation to find the source of the leak. But since then the court has been closelipped about the inquiry, providing no public updates. Little has emerged, apart from a demand from court investigators that justices’ law clerks sit for interviews and surrender their cellphones, a June development that prompted several of the clerks to seek legal counsel.
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It’s possible that we may never know who leaked the draft to Politico. The court may decide to keep that quiet even if it can specifically identify the leaker beyond a doubt. That would be unfair to the other clerks and employees of the Supreme Court in this term, leaving the leak as an ethical Sword of Damocles dangling over their heads in a profession where discretion is vital. They certainly have played it close to the vest so far.
However, we all know the why, don’t we? Generally speaking, anyway? Gorsuch certainly does:
Like other justices, Justice Gorsuch condemned the leak of the draft opinion, and suggested it had been intended to affect the outcome of the abortion case.
“Improper efforts to influence judicial decision making, from whatever side, are a threat” to the judicial process, he said. “They inhibit our capacity to communicate with one another,” reducing the candor between jurists of different persuasions that “improves our final products,” he said. “I very much hope we get to the bottom of this sooner or later.”
The leak was obviously designed to influence the final decision. In which way, though? That would depend on the identity of the leaker, and one can make a viable argument in either direction — a leaker who wanted to lock in a majority for overturning Roe or gin up enough public anger to intimidate the majority into avoiding such a move.
Let’s hope that the court opts for full transparency when this report is complete. If it ever is, of course.
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