Supreme Court Says It Hasn’t Identified Person Who Leaked Draft Abortion Opinion
WASHINGTON — The Supreme Court announced on Thursday that an internal investigation had failed to identify the person who leaked a draft of the opinion overturning Roe v. Wade, the 1973 decision that had established a constitutional right to abortion.
In a 20-page report, the court’s marshal, Gail A. Curley, who oversaw the inquiry, said that investigators had conducted 126 formal interviews of 97 employees, all of whom had denied being the source of the leak. But several employees acknowledged that they had told their spouses or partners about the draft opinion and the vote count in violation of the court’s confidentiality rules, the report said.
The investigation did not determine whether any of those discussions led to a copy of the draft opinion becoming public. Investigators also found no forensic evidence of who may have leaked the opinion in examining the court’s “computer devices, networks, printers and available call and text logs,” the report said.
The leak, published by Politico in May, was an extraordinary breach of the court’s usual secrecy. In a statement soon after, Chief Justice John G. Roberts Jr. confirmed the authenticity of the draft opinion, in the case of Dobbs v. Jackson Women’s Health Organization, but said it did not represent the final version and announced an investigation.
The report said the marshal’s office would investigate any new information that arose, and it made several recommendations for improving security practices. But it conveyed the distinct impression that there were enough holes in the system that the mystery of who leaked the opinion might never be solved.
“If a court employee disclosed the draft opinion, that person brazenly violated a system that was built fundamentally on trust with limited safeguards to regulate and constrain access to very sensitive information,” the report said.
Understand the U.S. Supreme Court’s New Term
A race to the right. After a series of judicial bombshells in June that included eliminating the right to abortion, a Supreme Court dominated by conservatives returns to the bench — and there are few signs that the court’s rightward shift is slowing. Here’s a closer look at the new term:
Legitimacy concerns swirl. The court’s aggressive approach has led its approval ratings to plummet. In a recent Gallup poll, 58 percent of Americans said they disapproved of the job the Supreme Court was doing. Such findings seem to have prompted several justices to discuss whether the court’s legitimacy was in peril in recent public appearances.
Affirmative action. The marquee cases of the new term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedents at risk.
Voting rights. The role race may play in government decision-making also figures in a case that is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters. The case is a major new test of the Voting Rights Act in a court that has gradually limited the law’s reach in other contexts.
Election laws. The court heard arguments in a case that could radically reshape how federal elections are conducted by giving state legislatures independent power, not subject to review by state courts, to set election rules in conflict with state constitutions. In a rare plea, state chief justices urged the court to reject that approach.
Discrimination against gay couples. The justices heard an appeal from a web designer who objects to providing services for same-sex marriages in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling.
Immigration. The Supreme Court will hear arguments on the constitutionality of a 1986 law that makes it a crime to urge unauthorized immigrants to stay in the United States. The justices had already heard arguments on that question three years ago; several of them suggested then that the law violated the First Amendment.
It added: “The pandemic and resulting expansion of the ability to work from home, as well as gaps in the court’s security policies, created an environment where it was too easy to remove sensitive information from the building and the court’s I.T. networks, increasing the risk of both deliberate and accidental disclosures of court-sensitive information.”
Investigators determined that in addition to the nine justices, 82 law clerks and permanent employees of the court had access to electronic or hard copies of the draft opinion, the report said. But in discussing the scrutiny of “employees,” it did not say whether investigators also interviewed and scrutinized the devices of the justices themselves — or their spouses.
At the conclusion of the interviews, the report said, employees signed affidavits “under penalty of perjury” declaring that they did not disclose the draft opinion or information about it to anyone not employed by the court and that they had said everything they knew about the disclosure.
The marshal wrote that investigators had looked for signs of disgruntlement or stress, including anger at the court’s decision. In an apparent nod to speculation that a conservative may have leaked the draft to make it harder for any of the five justices who seemed likely to vote in the majority to change their minds, she also wrote that they had “carefully evaluated whether personnel may have had reason to disclose the court’s draft decision for strategic reasons.”
The report also said that investigators had “especially scrutinized any contacts with anyone associated with Politico” and assessed the public speculation, including on social media, of possible suspects. “Several law clerks were named in various posts,” the report said. “In their inquiries, the investigators found nothing to substantiate any of the social media allegations regarding the disclosure.”
During the inquiry, investigators had collected all court-issued laptops and cellphones from people who had access to the draft opinion, but “found no relevant information from these devices.”
The report also said that the inquiry found nothing relevant in call and text logs and billing records from personal cellphones. While the report said that “all employees who were requested to do so voluntarily provided” such logs, it did not say how extensive those requests were.
More on the U.S. Supreme Court
- New York’s Gun Law: The Supreme Court let stand, for now, a state law that placed strict limits on carrying guns outside the home. The measure was enacted in response to a ruling by the court in June that struck down a restrictive gun control law.
- Donors Meet the Justices: A charity was created to preserve the court’s history. It also became a door to nine of America’s most powerful people.
- Title 42: The court said that the pandemic-era policy that restricted migration at the southern border would remain in place for now, delaying the potential for a huge increase in unlawful crossings.
- Year-End Report: Chief Justice John G. Roberts Jr. devoted his annual report on the federal judiciary to threats to judges’ physical safety. The report shed no light on the leak of the court’s draft Roe opinion or on calls for more rigorous ethics rules for justices.
It cited significant technical limitations. For example, while investigators could examine logs of when the draft was printed out on networked printers, 46 printers in the building turned out to be attached only to local computers and so generated no network logs. In their own local memory, those printers only saved a log of the previous 60 documents they had printed, the report said.
But despite those limitations, the report also said that investigators did not believe that outside hackers were responsible for extracting a copy of the Dobbs opinion from the Supreme Court’s network.
“It is unlikely that the public disclosure was caused by a hack of the court’s I.T. systems,” the report said. “The court’s I.T. department did not find any indications of a hack but continues to monitor and audit the system for any indicators of compromise or intrusion into the court’s I.T. infrastructure.”
The leak frayed relations among the justices. Justice Clarence Thomas likened it to an infidelity. Justice Samuel A. Alito Jr., the author of the opinion, said the disclosure endangered the lives of the justices in the majority.
When the court issued its decision overturning Roe v. Wade in June, the draft opinion was essentially unchanged.
When Chief Justice Roberts assigned Ms. Curley to oversee the investigation, there were questions about whether she had the requisite expertise and resources to handle it. She is a former national security lawyer for the Army whose office of about 260 employees primarily provides physical security for the justices and the court building.
Chief Justice Roberts also asked Michael Chertoff — a former top federal prosecutor, appeals court judge and secretary of the Department of Homeland Security — to independently assess the thoroughness of Ms. Curley’s investigation. The court released a one-page statement from him saying he could not identify any additional steps investigators should have taken.
