Did the Supreme Court's Dobbs leak investigation ignore the justices? It sure looks like it.

Update: The marshal "spoke" with the justices, but it's not clear that really changes much, given that they weren't required to sign sworn affidavits like everyone else questioned.

From the Supreme Court’s Jan. 19, 2023 statement

The Supreme Court says it has been unable to figure out who leaked the draft Supreme Court opinion overturning Roe v. Wade.

Documents released by the court on Thursday, however, suggest that part of the problem could be that the justices themselves weren’t investigated for the leak.

[Update at 5:30 p.m. Jan. 20: The marshal of the Supreme Court released a statement on Friday that she “spoke with each of the Justices” and that no “credible leads … implicated the Justices or their spouses.” Because of this, the marshal stated, she did not seek sworn affidavits from the justices, as was required from all other interviewed employees.]

Justice Samuel Alito’s Dobbs v. Jackson Women’s Health Organization opinion draft, which was published by Politico last May, foretold the end of Roe. It was the beginning of the upheaval that has followed, as states have begun enforcing draconian restrictions on women and other pregnant people — and activists and lawmakers on the right look to go even further. The moment has also led to pushback, as abortion rights supporters have been able to show results at the ballot box and the court has faced declining support following its decision to overturn a nearly 50-year-old precedent.

The leak itself, though, also led to an intrusive leak investigation at the Supreme Court — for everyone at the court, it appears, except the justices themselves.

People who work at the court turned over their cell phones to investigators, investigators reviewed legal search history information, and fingerprints were taken from “an item” of interest. None of that turned up anything relevant to the investigation, we learned on Thursday.

“[T]he team has to date been unable to identify a person responsible by a preponderance of the evidence,” a statement from the Supreme Court concluded.

Although the court, in its unsigned two-page statement, claimed that “the extraordinary betrayal of trust that took place last May warranted a thorough investigation,” it appears that the justices exempted themselves from the very investigatory tactics that they felt were justified in going after their “personnel.”

To be clear, and before we go any further, I would be fine with there being no leak investigation in this situation. But, if there is, I think it’s absolutely essential to ask whether the justices have exempted themselves from the same scrutiny their employees have faced.

That said, the longer report from Supreme Court Marshal Gail Curley, who oversaw the investigation, went into significantly more detail than the “Statement of the Court.” While the report did not directly state that the justices were exempted from the formal interviews and other investigatory tactics, the report appears to have said as much indirectly. (Additionally, as Luppe Luppen noted, if the justices were interviewed, why would the report hide that fact?)

If the justices themselves were not investigated, the report released Thursday and the statement from the Supreme Court mean little — other than drawing more attention to the justices and their interests surrounding the leak.

[Update at 5:30 p.m. Jan. 20: It appears from the marshal’s Friday statement that the justices were not subject to the same investigation as clerks and other court employees. Here is the marshal’s statement:

This is an after-the-fact attempt at clean up.

Either the marshal did not include speaking with the justices in her report because it was irrelevant to the investigation due to the informal nature of the discussions — the report included a paragraph on “an item” being fingerprinted, recall! — or it was intentionally excluded because to include it would have required the report to acknowledge that no sworn affidavits were required of the justices.

Either way, this attempt at a clean up really does no such thing.]

The marshal’s report indirectly excluded the justices from the investigation in three places.

First, it stated, “The investigation focused on Court personnel – temporary (law clerks) and permanent employees – who had or may have had access to the draft opinion during the period from the initial circulation until the publication by Politico.”

It is almost unfathomable that the court’s marshal would consider the justices to be “permanent employees” of the court.

If there were a question about that, however, the second reference helped clear that up:

From the Supreme Court Marshal’s Report

Not “82 other employees,” but “82 employees.” There are “Justices,” and there are “employees.” They’re different groups.

The next two paragraphs of the report — on page 11 — detail how they determined these 82 employees had access.

Finally, the report detailed the total number of “personnel” interviewed.

“The investigators to date have conducted 126 formal interviews of 97 personnel,” the report stated. Again, it’s hard to believe the marshal would consider the justices to be “personnel” of the court, but, even if that were possible, the next sentence renders that virtually impossible:

At the initial interviews, the investigators informed all witnesses that they had a duty to answer questions about their conduct as employees; that disciplinary action including dismissal could be undertaken if they refused to answer or failed to answer fully and truthfully; that the answers provided and any resulting information or evidence could be used in the course of civil or administrative proceedings; and that such information or evidence could not be used against them in any criminal proceedings unless they knowingly and willfully provided false statements.

Those first two clauses of that sentence simply could not apply to the justices.

It seems likely that the 97 people referenced are the 82 discussed above, along with 15 other people who work at the court but did not have access to either the electronic or hard copies of Alito’s Dobbs draft opinion.

Because this his been taken so seriously by the court and because employees have faced such intrusive measures, I reached out to the court’s public information office to make sure I wasn’t wrong. (Other journalists who cover the Supreme Court have also said they sought clarification on this issue.)

I asked:

Were any or all of the Justices among the "97 personnel" interviewed as part of the Marshal's leak investigation, as referenced on page 13 at the start of the "Interviews" section? 

I have not received an answer.

---

According to the Supreme Court’s statement, Michael Chertoff, the former secretary of the Department of Homeland Security, was asked to “assess” the investigation.

In a statement provided by the court, Chertoff wrote that Chief Justice John Roberts asked him to “independently review and assess the thoroughness of the investigation,” as well as “identify any additional useful investigative measures.”

After his review, Chertoff wrote, “At this time, I cannot identify any additional useful investigative measures.”

If the justices themselves were not included in the investigation, as it appears, it’s not clear to me the value of Chertoff’s assessment given his inability to identify any additional useful investigative measures like … investigating the justices.