SCOTUS Leaker Search Moves At Snail’s Pace
SCOTUS Leaker Search Moves At Snail’s Pace
Will we ever know who leaked the Dobbs draft decision that Justice Alito wrote? It has been almost three months since the leak, and despite lots of speculation, there has been no answer as to whodunnit.
And there was a LOT of speculation. The right assumed that it was a leftist clerk who was trying to attempt to pressure the justices into not voting for the Alito decision. The left countered that it must have been a right-leaning clerk who wanted to pressure the justices into NOT changing their minds. Twitter coughed up some names, but as time passed and no confirmation appeared, plus the Dobbs decision itself was released (and read very similarly to the draft) the speculation has faded. Mostly. David Lat has been following the saga on his Substack, and has some ongoing theories.
So I adhere to my original theory about the SCOTUS leaker (hereinafter “The Leaker”). First, The Leaker was a law clerk, not a justice and not a permanent staffer. Second, The Leaker was—in the words of the AP article, summarizing the dueling theories—“someone who was so upset by the prospect of overturning Roe that informing the public at the earliest possible moment was of paramount importance.”
But here’s where I was wrong. I speculated that The Leaker, possessing the courage of their convictions, would come forward to take credit for their actions, maybe in an op-ed for a major newspaper. That hasn’t happened yet—and should have happened already if it was going to happen at all.”
Instead, The Leaker continues to hide in the shadows. This leaves everyone who was at the Court in May 2022 under a cloud of suspicion…”
So here’s my updated theory on whether and when we’ll learn the identity of the SCOTUS leaker. I’m now of the view that The Leaker (1) does not want to be discovered; (2) took elaborate measures to protect their anonymity; and (3) is unknown even to the Politico reporters, Josh Gerstein and Alexander Ward, who published the Dobbs draft and original exposé. As a result, we might never find out The Leaker’s identity, or we might not find out until decades later, a la Deep Throat.”
Lat’s assumption that the Leaker would out themselves via an op-ed wasn’t an unreasonable one – remember “Anonymous,” who got a New York Times op-ed and a book deal, before revealing himself to be low-level flunky Miles Taylor? – but given the reaction of the SCOTUS justices to their opinions being leaked, what would the up side be to outing oneself as the Leaker? SCOTUS is a tight-knit group, where some justices have reunions with former law clerks for years. When Ruth Bader Ginsburg passed away, her former law clerks came to stand vigil. Being exposed as the leaker would, in reality, ruin a law clerk’s reputation in a myriad of ways, professionally and socially.
Despite the investigation that was ordered by Chief Justice Roberts and is under the purview of Marshal of the U.S. Supreme Court Gail Curley, nothing much seems to have happened – at least not in public view. The Court is making no comments to the media at all. But Shannon Bream of Fox News, who covers SCOTUS for the network, is seeing some movement.
— Shannon Bream (@ShannonBream) July 30, 2022
But multiple sources tell Fox News the investigation into the approximately 70 individuals in the court who may have had access to the draft opinion has been narrowed. Sources say much of the initial focus was on the three dozen or so law clerks, who work directly with the justices on their caseload. Fox News had previously reported those law clerks were asked to turn over their cellphones and sign affidavits. It is unclear whether those clerks have all cooperated.”
Supreme Court law clerks work on a one-year contract for individual justices, and their term typically ends in mid-July. Most of the law clerks have now presumably moved on to other jobs, and any future cooperation with them into the leak investigation was seen as problematic.”
Fox News has been told court Marshal Gail Curley has also asked several permanent court staff who may have had access to the draft opinion to turn over their cellphones and electronic devices.”
But the key question of the leaker’s identity remains unknown, at least publicly. Also unanswered is whether any punishment or discipline will be forthcoming; whether outside federal law enforcement or private law or security firm has been hired to help; and what steps if any will be taken to prevent future such leaks.”
The court’s public information officer Patricia McCabe offered a formal “no comment” when asked Friday by Fox News.”
Movement at a snail’s pace, but still some movement. The problem is that SCOTUS doesn’t seem particularly motivated to find out who the Leaker was, and then publicly excoriate that person. There wasn’t – and still isn’t – any sense of urgency in getting to the bottom of this. Maybe the Marshal feels like they can’t prove this as a crime, maybe there are too many suspects to accurately determine who this Leaker was, maybe Roberts has changed his mind about the whole thing. The problem is that there are too many “maybes” and not enough answers for the public. If, as the justices said, this was such a huge breach of trust that it could undermine the Court, then We the People deserve to know who wrecked that trust.
SCOTUS had better not drop this investigation, or let it drag on forever. The new term starts on the first Monday in October. It would be smart of the Marshal and SCOTUS have this investigation wrapped up and publicly released well before that day.