SCOTUS Dobbs Leak Investigation Is A Failure

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SCOTUS Dobbs Leak Investigation Is A Failure

SCOTUS Dobbs Leak Investigation Is A Failure

After the shocking leak of the draft of the Dobbs decision last May, the question of “whodunnit” has been the proverbial elephant in the room.

After all, it’s not like the decision didn’t have massive implications that led to justices having demonstrations staged outside their homes, or an actual assassination attempt on a sitting justice. You would think SCOTUS would take this matter seriously, and want some hard truths, even if it led somewhere they didn’t like.

Apparently, the Marshal of the Court, who was charged with conducting the investigation, didn’t look that hard for the truth. The report released today indicates not just a half-assed job, but that the investigation into who the SCOTUS leaker was, was conducted in such a way as to NOT find out the truth.

“In May 2022, this Court suffered one of the worst breaches of trust in its history: the leak of a draft opinion,” an unsigned statement from the Supreme Court Justices said. “The leak was no mere misguided attempt at protest. It was a grave assault on the judicial process.”

“The Chief Justice assigned the task to the Marshal of the Supreme Court and her staff,” the statement continued. “After months of diligent analysis of forensic evidence and interviews of almost 100 employees, the Marshal’s team determined that no further investigation was warranted with respect to many of the ’82 employees [who] had access to electronic or hard copies of the draft opinion.’”

“In following up on all available leads, however, the Marshal’s team performed additional forensic analysis and conducted multiple follow-up interviews of certain employees,” the statement continued. “But the team has to date been unable to identify a person responsible by a preponderance of the evidence.”

Wait a minute. EIGHTY-TWO employees had access to the draft, NINETY-SEVEN people were interviewed, and the Marshal’s office can’t figure out who did it???

The entirety of the report can be read here, but the internet wasted little time in tearing apart both SCOTUS and the Marshal’s report – mostly because the report is so clearly damning of the entire investigation process. First, aside from the fact that the Marshal had a very limited suspect pool, it seems that everything was done on the honor system. People were asked nicely to turn over documents and phone records, and if they didn’t, then NO BIG DEAL. So long as they signed the affidavit that THEY didn’t do it, the Marshal just moved on.

Second, the Marshal did NOT investigate the SCOTUS justices themselves, only the employees of the court. Does… does anyone else see a problem with this???

Does anyone else find the timing of this report’s release interesting? The March for Life – the first one since the overturning of Roe v. Wade – is tomorrow.

Some SCOTUS justices have been outspoken about the breach in the Court up to this point. What could they possibly say now, after all these months of investigation, that have led precisely to nowhere? Just a shrugging of shoulders and an “oh, well, we tried” from the Marshal?

Law professor Jonathan Turley went on a blistering Tweet thread about how this failure is likely to mean MORE leaks in the future, not less.

The Supreme Court’s report indicates that they cannot isolate the culprit among the over 80 possible suspects for the Dobbs leak. It is an admission that is almost as chilling as the leak itself…”

…It will likely revive concerns over whether the FBI should have been asked to take the lead on the investigation. The Court is only a few blocks from the world’s leading forensic investigatory body…”

…What is clear is that any hope for a deterrent on such unethical conduct has been dramatically reduced. Thus far, the culprit succeeded in not just leaking the opinion but evading detection…”

…The proposed changes in security are unlikely to meaningfully reduce the danger of such leaks. The nature of the Court’s work requires a free flow of drafts and memoranda. That is why we hope to achieve through deterrence what was not achieved through ethics…”

…In this age of rage, this danger will only grow. Someone felt that they had license to leak. Some others may now feel that they have the impunity to do so.”

While Turley puts more faith in the FBI than recent events should allow for, his comments do highlight the hamstrung (be it intentional or not) efforts to find the leaker and hold them to account.

Which means that there is really only one course of action for anyone to take regarding the 82 potential suspects. The legal community should consider them all guilty of this leak. If one of them cannot be found culpable, then hold them all accountable. Every single legal firm, every single future clerking position, every single future job, should note when these 82 people served at the Supreme Court. And it SHOULD affect their ability to get a job in the future. The only court left is the court of public opinion, and we have every right to judge these 82 as problematic employees. Yeah, it’s not fair. Life is not fair.

The SCOTUS justices should not escape scrutiny for this, either. If they want the integrity of the institution to be upheld and respected, then they should want real answers. Will any of them demand some? I won’t hold my breath waiting.

Featured image: MarkThomas via Pixabay, cropped, Pixabay license

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  • Joe R. says:

    Not a TOTAL failure. We now know we have no one to trust there, and the investigators had to be in-on-it.

  • Scott says:

    If it was a Justice, my bet would be on Kagan or the “wise latina”…

  • Kevin says:

    Here’s the important question … what safeguards has the Supreme Court put in place to prevent this from happening again? Given everything is electronically generated nowadays, it’s easy to include “stamps” generated on files or other documents so they can be traced back to their original source. The same things goes for who accessed the brief and who printed it off.

    My suspicion … given how many news stories have come out around Alito and his loose lips (just go back and read stories about the court secrets he’s divulged to his “friends”) … it’s him. We all know conservatives are have one common goal … lying to cover up their criminal behavior.

  • John C. says:

    I have a sneaking suspicion that they know full well who leaked, but consider that releasing the particulars would bring worse consequences than “admitting to failure.”

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