The U.S. Supreme Court announced Thursday that its investigation into the politically strategic leaking of a draft opinion on abortion last May has so far failed to determine who the culprit may be.
“After examining the Court’s computer devices, networks, printers, and available call and text logs, investigators have found no forensic evidence indicating who disclosed the draft opinion,” the report states.
The leak involved a draft of an opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization, the case that ultimately resulted in the Supreme Court overturning the two landmark abortion cases, including Roe v. Wade.
In the draft opinion, which was sent to Politico, Alito wrote, “We hold that Roe and Casey must be overruled.”
The Supreme Court is typically a tight-lipped organization that, despite the weighty topics it rules on, has maintained some semblance of collegiality among its members.
The secrecy of Court deliberations is paramount to insulating the Court from the political pressures that face the legislative and executive branches of government. The Court, because it merely interprets the laws, is not supposed to be influenced by the hew and cry of the public. Never before has a Justice’s legal opinion been leaked to the media, and the event set off a firestorm on both sides of American politics.
On the Right, pro-life conservatives saw yet another case of left-wing activists violating the rules in order to bend policy outcomes in their direction. The leak, in their view, was an obvious attempt to gin up pro-abortion activists, potentially as a way to sway the Court’s thinking, and definitely as a way to impact the upcoming 2022 midterm elections.
On the Left, activists were incensed at the prospect that Roe, which had legalized abortion since 1973, might fall. And the leaked opinion triggered widespread protests, including the violent targeting of pro-life Justices and the vandalism of pro-life pregnancy centers across the country.
The Office of the Marshall of the Supreme Court, which was tasked by Chief Justice John Roberts with investigating the origin of the leak, released a 23-page report this week outlining the investigation. That investigation began on May 5.
According to the report, the Marshall assembled an investigative team consisting of lawyers and trained federal investigators with experience conducting criminal, administrative, and cyber investigations.
The investigation found that it was unlikely an outside agent accessed the Court’s information and technology systems. In other words, this wasn’t the work of an outside hacker or hacktivist.
But after conducting 126 interviews of 97 employees, SCOTUS still can’t say who performed the extraordinary and illegal act.
“The interviews provided very few leads concerning who may have publicly disclosed the document,” the report states. “Very few of the individuals interviewed were willing to speculate on how the disclosure could have occurred or who might have been involved.”
The investigators did conclude, however, that leaking the opinion was likely made much easier by steps the court took in response to the COVID-19 pandemic. Those steps included making it easier to access court materials remotely, a weakening of operation security that it seems someone was keen to exploit.
The investigators determined that 82 court employees had access to the opinion before it was leaked, as did all of the Supreme Court Justices.
“[I]n the course of their interviews, several personnel acknowledged that they did not treat information relating to the draft opinion consistent with the Court’s confidentiality policies,” the report states. “Some personnel handled the Dobbs draft in ways that deviated from their standard process for handling draft opinions.”
The report doesn’t say whether any Justices were interviewed as potential suspects in the leaking of the draft opinion.