The Supreme Court's sham leak investigation exposes John Roberts as a partisan hack
The Supreme Court still does not deserve our trust
The Supreme Court has released a report on its investigation into the May 2022 leak of the Court’s draft Dobbs opinion — the case that overturned Roe v Wade two months later. On its surface, the report doesn’t reveal much: “the team has to date been unable to identify a person responsible by a preponderance of the evidence,” the Court declared in its cover letter, all but begging us not to look behind the curtain. But pull back that curtain a bit, and two things become clear: The Supreme Court justices themselves were not subjected to the investigation, and Chief Justice John Roberts’ indignant denunciation of the leak — and the investigation itself — was just a partisan stunt.
The Court’s report doesn’t explicitly say the justices were excluded from the investigation, but a close read makes this all but certain. First, there’s no indication that they were included. Second, the Court’s statement indicates that the investigation covered “82 employees [who] had access to electronic or hard copies of the draft opinion,”while the Marshall’s Report of Findings & Recommendations indicates (a dozen pages later) that the 82 number does not include the justices: “The investigators determined that in addition to the Justices, 82 employees had access to electronic or hard copies of the draft opinion.” Put those two references together, and it’s pretty clear the justices were not subject to investigation. It’s also clear that the Court wanted to avoid saying this directly.
The fact that the justices were excluded from the investigation is particularly striking in light of this passage from the report:
At the conclusion of the initial interviews, each employee was asked to sign an affidavit, under penalty of perjury, affirming that he or she did not disclose the Dobbs draft opinion to any person not employed by the Supreme Court, did not disclose to any person not employed by the Supreme Court any information relating to the Dobbs draft opinion not made public through means authorized by the Court, and had provided all of the pertinent information known to him or her relating to the disclosure or publication of the Dobbs draft opinion. Each employee was then asked to swear to the truth of the statements in the affidavit before a Notary Public. Each of these employees signed a sworn affidavit. A few of those interviewed admitted to telling their spouses about the draft opinion or vote count, so they annotated their affidavits to that effect. If investigators later determine any personnel lied to the investigators, those personnel would be subject to prosecution for a false statement in violation of 18 USC § 1001. [Emphasis added]
It would be very interesting to know how, say, Clarence Thomas would’ve responded had he been asked to sign such an affidavit! Unfortunately, it seems clear he was not asked.
In any case, an “investigation” into who leaked the Dobbs draft that excludes the justices themselves simply is not a real investigation.
Now, let’s go back to May 2022. When the Dobbs draft leaked, Chief Justice Roberts denounced it as a “betrayal of the confidences of the Court […] intended to undermine the integrity of our operations” and “a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” adding “I have directed the Marshal of the Court to launch an investigation into the source of the leak.” Justice Thomas later said the leak was “like kind of an infidelity, that you can explain it, but you can’t undo it” and blasted it as an attempt to “bully” the Court.
Roberts’ indignation was quickly echoed throughout the Republican Party. The right-wing Judicial Crisis Network declared that finding the leaker should be Roberts’ “top priority,” insisting the leak “endangered the lives of the justices and their families and undermined the rule of law.” Senator Ted Cruz claimed to be “utterly horrified” by the “incredible threat to our independent judiciary,” baselessly blaming the leak on “the vicious partisan politicking that categorizes today’s Democrat Party” and “some angry left-wing law clerk.” Senator Mitch McConnell baselessly called the leak “yet another escalation in the radical left's ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law” and attacked Democrats for not denouncing it. Senator Mike Lee insisted the leaker “needs to be brought to justice and held to account to what they did,” Sen. Marsha Blackburn declared “the leaker must be immediately removed from their position and exiled from the legal community.” And on and on and on.
The GOP’s reaction to the Dobbs leak was swift and unanimous: The act of the leak, not the fact that the Court was about to overturn a 50-year precedent protecting abortion rights, was the real story. McConnell was explicit, telling reporters “You need, it seems to me — excuse the lecture — to concentrate on what the news is today. … Not a leaked draft, but the fact that the draft was leaked.”
With his swift denunciation of the leak and promise of an investigation, Roberts provided a veneer of credibility for Republican efforts to make the leak the story, and to (baselessly) use it as a cudgel against Democrats.But now that it seems clear the investigation Roberts ordered excluded the justices themselves, his indignation seems insincere and his investigation little more than a cynical attempt to distract from what he knew would be an unpopular opinion.
Ultimately, who leaked the Dobbs draft is far less important than the fact that the Court has shown it cannot be trusted to investigate itself -- just another in a long line of reasons why the Supreme Court does not deserve our trust.
From the Court’s statement: “…the Marshal’s team [which conducted the investigation] 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 an effort to legitimize this sham investigation, the Court asked former Homeland Security Secretary Michael Chertoff to review the investigation. From the Court’s statement: “Recently, this Court consulted Michael Chertoff. Mr. Chertoff is a former Secretary of Homeland Security, Judge of the U. S. Court of Appeals for the Third Circuit, Assistant Attorney General for the Criminal Division of the U. S. Department of Justice, and U. S. Attorney for the Dis- trict of New Jersey. We invited Mr. Chertoff to assess the Marshal’s investigation. He has advised that the Marshal “undertook a thorough investigation” and, “[a]t this time, I cannot identify any additional useful investigative measures” not already undertaken or underway. Statement from Michael Chertoff 1 (2023). A copy of Mr. Chertoff’s statement is attached.” This is hilarious for two reasons: First, in order to legitimize a sham investigation, the Court solicited the endorsement from a man who served as lead counsel on Al D’Amato’s Whitewater fishing expedition in the 1990s. And second, Chertoff’s inability to “identify any additional useful investigative measures” does not exactly inspire confidence in Chertoff himself, given the apparent exclusion of the justices from investigation.
My position at the time was that I didn’t much care who leaked the draft, but that it was probably a conservative, in part because when Republicans denounce something that forcefully, they tend to be secretly doing it.