A year later and the illicit Dobbs leak goes unpunished

OPINION:

It was a year ago this week that Politico published a report, based on a leak from an anonymous pro-abortion source within the Supreme Court, about the draft opinion in Dobbs v. Jackson Women’s Health Organization that subsequently overturned the high court’s 1973 Roe v. Wade decision legalizing abortion nationwide.

The report, “Supreme Court has voted to overturn abortion rights, draft opinion shows,” was published on the evening of May 2 and became the lead story everywhere else in the media the next day.

Now, a year later, the leaker still has not been publicly identified — much less prosecuted and punished — for the disclosure. The perpetrator hoped it would generate the kind of public blowback that might give pause to one or two conservative justices inclined to overturn Roe, thereby changing their minds and preserving the misbegotten 50-year-old ruling.

Happily, none of the justices in the 5-4 majority Dobbs ruling — which wasn’t issued until 7½ weeks later, on June 24 — were dissuaded from voting to relegate Roe, along with 1992’s companion Planned Parenthood v. Casey, to the ash heap of bad jurisprudential history.

In so doing, the court held that the Constitution does not confer a right to abortion after all. The latter was a hitherto unknown “right” that was effectively written into our nation’s governing document in 1973 by the 7-2 Roe majority. It was a “right” concocted from whole cloth, one that somehow “emanated” from a “penumbra” from the Bill of Rights, to borrow then-Justice William O. Douglas’ infelicitous phrasing from a right-to-privacy ruling eight years earlier that laid the groundwork for Roe. 

In Dobbs, the court rightly returned to the states the authority to regulate the procedure as the legislatures see fit — as they had before Roe.

Inexplicably and regrettably, the public still doesn’t know the identity of the leaker a year later, despite a supposed effort by Chief Justice John Roberts — who voted with the court’s three liberals to uphold Roe — to get to the bottom of the unauthorized disclosure.

Even the bumbling Inspector Clouseau of “Pink Panther” movie fame surely could have stumbled onto the identity of the leaker by now. That’s how hapless — and apparently halfhearted — the effort has been.

Supreme Court Marshal Gail Curley, who as “the court’s chief security officer” manages about “260 employees, including the Supreme Court Police Force,” was tapped by Justice Roberts to head up the investigation. She concluded in a Jan. 19 report that there was insufficient evidence to ascertain the identity of the leaker.

“Investigators have been unable to determine at this time, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion,” Ms. Curley wrote in her 23-page report.

Given that a full year has now passed, we question whether the court — with all of the federal government’s law enforcement and investigative resources at its disposal — has or ever had any real desire to identify and expose the leaker.

By contrast, independent journalist Will Chamberlain of the Internet Accountability Project and the conservative publication Human Events, with far fewer resources at his disposal, investigated and, within a week of the leak, found strong circumstantial evidence pointing to a likely suspect with direct connections to Politico.

As for the liberal legacy media, they have shown no interest at all over the past 12 months in using the tools of the investigative journalism trade to solve the mystery. That’s because the predominantly pro-abortion mainstream media likely approved of the leaker’s action and would probably fete whoever it is if and when his or her identity is ever publicly revealed.

ProPublica, The Washington Post, and others prefer instead to gin up phony ethics charges against the liberal media’s bete noire on the court, conservative Justice Clarence Thomas, over lavish gifts he and his conservative activist wife received from a billionaire friend, despite the lack of any evidence of a “quid pro quo” in Justice Thomas’ votes on cases before the court.

In an interview with The Wall Street Journal published April 28, Justice Samuel Alito — who authored the Dobbs decision — says he thinks he knows the identity of the leaker but declined to name names.

“I personally have a pretty good idea who is responsible,” Justice Alito told the Journal. (Mr. Chamberlain identified the likely leaker as a female law clerk to since-retired liberal Justice Stephen Breyer with a long history of abortion access advocacy.)

There will apparently be no legal consequences for the leaker, even though the unauthorized disclosure led to illegal pro-abortion demonstrations outside the homes of the conservative justices and threats to their safety and that of their families.

Those demonstrations were likewise illegal under federal law. Still, they too went unpunished by the Justice Department under Attorney General Merrick Garland, who implausibly claimed that he didn’t know that U.S. marshals had been instructed by his own department not to arrest the illegal protesters “unless absolutely necessary.”

If Mr. Garland really is that clueless (or dishonest), we should thank God that a Republican-controlled Senate thwarted his 2016 nomination to the Supreme Court by President Barack Obama.