Why the Dobbs leak report will 'likely add to public distrust' of the Supreme Court: judicial analyst

20 January 2023

On Thursday, January 19, the U.S. Supreme Court released its 20-page report on the investigation of a leak in its Dobbs v. Jackson Women’s Health Organization ruling. The final Dobbs decision wasn’t announced until June 24, 2022, but Americans pretty much knew what the outcome would be when Politico, on May 2, published a leaked draft opinion by Justice Samuel Alito. In that draft, Alito laid out the High Court’s reasons for overturning Roe v. Wade. And when the final decision came down on June 24, the Court did, in fact, overturn Roe 5-4.

The Roberts Court’s right-wing justices and right-wing media apologists spent months railing against the person who leaked Alito’s draft opinion to Politico. But when the 20-page report on the Court’s investigation was released on January 19, the Court announced that it had come up empty. The Court had been unable to find out who was behind the leak.

In a biting article published by CNN’s website on January 20, judicial analyst Joan Biskupic describes the report as yet another embarrassment for the Roberts Court — which has faced a ton of criticism since the Dobbs ruling.

“The Supreme Court’s stunning report Thursday on its failure to discover who leaked a draft decision reversing abortion rights last year laid bare shortfalls at the nation’s highest court, in its technology, protocols for confidentiality and overall institutional safeguards,” Biskupic explains. “Further, the lack of success in discovering who was responsible raises the possibility of a security breach in the future. It already appears likely to add to the public’s distrust of the justices and accelerate the partisan rancor surrounding the Court.”

Biskupic continues, “The justices’ two-page statement and 20-page report from Supreme Court Marshal Gail Curley appear intended to demonstrate the thoroughness of the investigation, with numbers of people interviewed — 126 formal interviews of 97 employees — and various forensic measures taken. Yet each page rings with limitations and dead ends. It also suggests certain boundaries on who was investigated, referring only to employee scrutiny. There was no mention of possible interviews with the nine individual justices or their spouses. Moreover, it is paradoxical that an institution that cloaks itself in secrecy and casts itself above other Washington institutions would be exposed as such a sieve.”

Some legal analysts, following the report, have been speculating that one of the justices or a spouse of one of the justices may have been responsible for the leak. There is no proof of that, but many critics of the Supreme Court’s report on the Dobbs leak have complained that the justices themselves, along with their spouses, should have been investigated.

Biskupic notes that the report “did little to ease” the political “tensions” that surrounded the Dobbs decision and has “instead spurred questions about how seriously the Court sought out those responsible for the leak.”

“In the days immediately after Politico published the draft, some conservative activists had accused liberal clerks of the disclosure,” Biskupic recalls. “Liberal advocates, meanwhile, targeted the Court’s conservatives who might have been trying cement the 5-4 split to overturn Roe v. Wade. The partisan acrimony only increased once the decision upending reproductive rights nationwide was issued.”

Although Democrats have won the popular vote in seven of the United States’ last eight presidential elections, that isn’t reflected by the makeup of the U.S. Supreme Court — where six of the nine justices are appointees of Republican presidents. Former President Donald Trump didn’t win the popular vote in either 2016 or 2020, yet one-third of the High Courts consists of Trump-appointment justices: Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett, all of whom voted to overturn Roe.

However, Chief Justice John Roberts, a conservative George W. Bush appointee, didn’t vote to overturn Roe. Roberts reportedly tried to persuade Kavanaugh to vote in favor of keeping Roe but was unsuccessful in the end.

“The final opinion, issued on June 24, differed little from the draft opinion reversing Roe v. Wade, a 1973 decision that first gave woman a constitutional right to end a pregnancy,” Biskupic notes. “Justice Samuel Alito, who wrote the new opinion, was joined by four fellow conservatives. Even after the leak, CNN had learned, Roberts tried to persuade one of the five justices in the majority to break away and prevent the reversal of nearly a half century of abortion rights. The chief justice voted to uphold a disputed Mississippi law that banned abortion at 15 weeks of pregnancy, but he did not want to use the case to obliterate abortion rights at earlier stages of pregnancy.”

Biskupic adds, “None of the five on the right might ever have wavered in their votes, but CNN learned through sources at the time that the leaked decision made Roberts’ negotiating efforts all the more difficult. Determining how the leak changed the course of history may be impossible. But Thursday’s report, revealing the loose handling of confidential documents, suggests the leak itself need not have been inevitable.”

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