The leaker of a draft opinion in the ruling overturning Roe v. Wade has yet to be identified or punished more than five months after the unprecedented breach and a week before the Supreme Court opens its 2022 session.
Court watchers from both sides of the aisle say the perpetrator has changed the course of the court and likely made trust and confidentiality issues more relevant.
Elliot Mincberg, senior fellow at People for the American Way, said the justices will likely increase their emphasis to staff on the importance of confidentiality.
“Clearly, there will be even more of a premium on confidentiality than there has been before — and most of them will respect that. The question will be: Will there be an exception as there was here?” he said.
“The fact that they weren’t able to immediately and swiftly deal with the leaker has already itself caused a lot of damage to the court,” said Carrie Severino, president of the Judicial Crisis Network and a former clerk to Justice Clarence Thomas. “It just undermines the trust within the court and outside the court.”
If the leaker was a clerk of one of the justices, that person avoided being fired because all clerks left at the end of the last term in June, Ms. Severino said.
If the leaker is an employee of the court, she said, it calls for a more urgent reprimand to avoid further leaks, she said.
“Hopefully, we can tamp that down and get back somehow to just the normal collegial, working situation that the Supreme Court has been able to forge despite the differences across ideological lines,” Ms. Severino said.
No public updates have been issued five months after Chief Justice John G. Roberts Jr. announced an investigation into the leak of the Supreme Court’s draft opinion of the ruling overturning national abortion rights.
Justice Elena Kagan recently suggested a possible update by the end of September, according to reports, but there has been no sign of progress. Retired Justice Stephen G. Breyer told CNN over the weekend that he isn’t aware of any update, signaling that the identity of the leaker still may be unknown.
Chief Justice Roberts tapped Supreme Court Marshal Gail Curley days after the leak to lead the investigation. The former Army lawyer and colonel who oversees the court grounds and security had been in the job less than a year.
Observers say Col. Curley appears to have the right temperament for the unexpected task, and an Associated Press profile described her as “smart, private, apolitical and unlikely to be intimidated.”
Aside from speculation over who leaked the document, legal scholars are debating whether the leak constitutes a crime.
Some have said it could be theft of government property or obstruction of justice if the leaker was trying to affect the outcome of the case. Others have said Supreme Court documents aren’t protected by the confidentiality laws that cover other areas of government.
Still, court watchers were aghast when news broke May 2 that the Supreme Court was poised to overturn the decades-old precedent on abortion rights. It was the first time a full draft opinion had been leaked in the Supreme Court’s 233-year history.
In the draft opinion, published by Politico, Justice Samuel A. Alito Jr. said the question of access to abortion should return to the state legislatures. The news broke weeks before the court issued its official 6-3 ruling.
“The Constitution makes no reference to abortion,” Justice Alito wrote. “Roe was egregiously wrong from the start.”
“It’s time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” read the draft opinion, which was dated in February.
Pro-choice advocates were outraged. They posted the addresses of the conservative justices online and began protesting outside their homes. One activist traveled from California to Justice Brett M. Kavanaugh’s home in Chevy Chase, Maryland, with plans to assassinate him.
Protests at the justices’ homes are continuing, and Ms. Severino said it’s the fault of the leaker.
“That is something that I think we can lay at the feet — at least in the instigation of it — [of] the person who started that leak,” she said.
The leak did not count as disinformation. Justice Alito’s official opinion closely mirrored the leaked draft opinion.
A spokesperson from the high court did not respond to a request for comment about the investigation.
Mr. Mincberg said he doubts the cases in the upcoming session have the significance of Dobbs v. Jackson Women’s Health Organization, which overturned nearly 50 years of precedent under Roe v. Wade protecting national abortion rights.
“Anything can happen, but I think that as high stakes as these current cases have, they are not the same as Roe v. Wade,” he said. “What some might hope is that this was somewhat unique.”
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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