Disorder in the court

Nearly a year ago, Supreme Court Justice Samuel Alito emailed a draft of the long-anticipated opinion in Dobbs v. Jackson to a slew of law clerks and other personnel. They then forwarded the email to other permanent staffers and printed off several copies. Then, in an unprecedented breach of protocol, the draft found its way to Politico, which published the entirety of the document in May.

The leak revealed the court’s conservative majority was poised to overturn Roe v. Wade, ruling that abortion is not a constitutional right. Protests broke out in front of the court and across the country, including on streets and sidewalks in front of the conservative justices’ home. A California man read the leaked draft and brought a gun to Justice Brett Kavanaugh’s street in early June. At a Heritage Foundation event in October, Alito said the leak made his and his conservative counterparts “targets for assassination” from people who thought they could prevent the ruling by decreasing the number of justices on the bench.

Who bucked more than two centuries of judicial tradition, endangering not only the integrity of the court but also the justices themselves? After nearly a year of investigating the matter, Marshal of the Court Gail Curley released a report last week to admit she doesn’t know and might never find out.

The investigation identified unanswered questions about printed copies of the decision and where they went. Court printers did not store logs of all copies made. Some weren’t even connected to the court’s networks. No court-issued computers or devices showed evidence of improper sending of the document, nor did voluntarily submitted personal devices. The investigators even looked for search histories of someone looking up the ramifications of leaking information. According to the report, there is no evidence that the draft was downloaded to other devices, nor did fingerprint analysis of “an item relevant to the investigation” provide clues.

The probe also revealed that there is “no universal written policy or guidance on the mechanics of handling and safeguarding draft opinions and court-sensitive documents, and practices vary widely throughout the court.” Alexander “Sasha” Volokh, a law professor at Emory University, clerked for former Justice Sandra Day O’Connor and then transitioned to Alito’s team briefly in 2006. While some systems might have changed in the past 17 years, he said even during his time, no one monitored paperwork.

“When draft opinions were circulated, we could just print them and then take them out of the building,” Volokh told WORLD. “No one was searching our bags when we left, and then I could give it to somebody. There would be nothing stopping me. The security relied on the good faith and ethics of everybody involved. But it only takes one person to leak, so it’s not surprising to me that they couldn’t find who did it.”

More than 126 formal interviews of 97 personnel failed to find a culprit, according to the report and sworn affidavits. There does not appear to have been an IT hack of the computer systems, and it is unlikely—though not impossible—that the draft was left out in public. Curley said her team is still processing some electronic data and will pursue any future leads if they arise.

The report includes a statement from former Homeland Security Secretary Michael Chertoff. He independently reviewed Curley’s process and gave his approval, writing that the interviews and procedure were “thorough, specific, and ensured all leads were carefully examined.”

Critics aren’t so sure. Some staff members admitted to telling spouses or family members about the draft opinion and the vote count. The Law Clerk Code of Conduct prohibits this in Canon 2: “All intra- and inter-Chambers communications are confidential. … The temptation to discuss interesting pending or decided cases among friends, spouses, or other family members, for example, must be scrupulously resisted.” Some said they generally tell spouses about work matters and were not aware this was prohibited. None of these spouses or family members were interviewed in the course of the investigation, according to the report.

But confidential is not the same as classified. An honor code has long governed the court rather than specific law. The report called it “a system that was built fundamentally on trust with limited safeguards to regulate and constrain access to very sensitive information.” But now that the honor-bound armor has been cracked, the Supreme Court faces calls to supplement trust with policy.

Curley also did not interview the justices themselves, though she clarified in a subsequent news release that she talked with them, just not under oath. Nor did she interview their spouses. Former federal prosecutor Gregory Wallance wrote in an op-ed that this taints the credibility of the investigation. He acknowledged the dilemma of the court to retain control over its inner sanctum while also running an effective investigation, but he said Chertoff should have conducted the entire affair.

“It tried to have it both ways by using a court employee to do the investigation and an outside lawyer to give it an arms-length blessing,” Wallance wrote for The Hill. “It’s certainly possible that, had an outside lawyer been retained to do the investigation, and followed up on all leads including spouses, the leaker still would not have been identified. But at least there would have been no doubt about the investigation’s independence and credibility.”

Curley’s report includes suggestions for the Supreme Court to beef up security, but they are shrouded in confidentiality. The released report gives vague recommendations for limiting the number of personnel with access to drafts, securing network devices, and establishing an information security policy, but the specifics of these changes are in a document titled Annex A. The justices will review it privately and determine any changes.

“There might be a lot of extra security measures, many of which will not serve much of a purpose other than convincing people that something is being done,” Volokh said. “The broader concern is that it will affect the candidness of the justices in expressing tentative thoughts in earlier drafts or internal memos if they think those might become public.”

Shortly after the leak, Justice Clarence Thomas spoke at a conservative conference that institutional trust took a hit: “When you lose that trust, especially in the institution that I’m in … you begin to look over your shoulder.”

Judicial Crisis Network President Carrie Severino, who formerly clerked for Thomas, says trust in the Supreme Court is in a precarious position since no one can know whether leaks will become the new normal or if what happened in May was specific to the Dobbs case.

“We can only hope that a breach like this never happens again, but I fear that the failed investigation and lack of consequences for the leaker will encourage history to repeat itself,” Severino tweeted.

Volokh said the leak says more about the political moment and the breakdown of ethics than it does about court procedure.

“What is conducive to the respect of the judiciary is the idea that the judiciary considers itself bound by traditionally legal considerations and not purely policy-oriented considerations,” he said. “Leaks have been common in presidential administrations and in Congress, but it’s been surprising that these ethical norms that have long since broken down in other branches have survived for so long in the judicial system. Now the judiciary branch might just become more like the political branches.”