The Dobbs leak is a big deal. Here’s what a real Supreme Court investigation would look like.
The Dobbs leak is a big deal. Here’s what a real Supreme Court investigation would look like.
I f the Supreme Court overturns Roe v. Wade, that would be a tectonic event in American constitutional law and American politics. It hasn’t happened yet, but the leaked draft opinion of Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization, circulated in February for what appears to be a five-justice majority, seems to put us closer than we have ever been. The importance of the decision is precisely why I warned in December that there would be a real threat of someone shattering precedent by leaking the outcome, at least if the Court was going to overturn Roe. You read it here first.
But, as important as the ultimate fate of Roe is, the leak itself presents a grave and unprecedented threat to the Court that must be dealt with swiftly and sternly. Chief Justice John Roberts, after confirming the authenticity of the draft, has announced an internal investigation. That investigation will be headed by the marshal of the Supreme Court, Colonel Gail Curley, who has held the job for just a year but previously served as a U.S. Army lawyer, most recently as chief of the national-security-law division in the Office of the Judge Advocate General. What Colonel Curley may lack in time served inside the Court, she makes up for in a background that likely includes some prior familiarity with leaks of sensitive information.
The leak probe should be pursued with the utmost seriousness and determination, and the leaker must be exposed without fear or favor — the same sense of impartial justice that is supposed to animate everything the Court does, but married to a powerful mood of urgency. Consider what an investigation will entail if Roberts is serious about finding the leaker in order to protect the Court’s institutional legitimacy and independence and the security of its people.
The Suspects
Let us start with what we know about the leak, and what an investigator could reasonably assume. The draft opinion appears to be a printout that was handed over in hard copy to Politico; it even has a staple and folding marks in the upper left-hand corner. Josh Blackman observes:
There are a few clues that can be derived from the document itself. First, at the top of the first page is the phrase “1st Draft.” And it is highlighted in yellow. The rectangle around the phrase is perfectly angled. This was done with a digital highlight feature, and not a real highlighter. I can reasonably infer this document was printed on a color laser printer. Most people would simply print a 98 page document on a traditional black-and-white printer. Most high-quality color printers leave a watermark (tracking dots) on every page. Even though this document was scanned by Politico, the authorities can probably trace it.
Second, in the upper right-hand corner of the document is a distribution list. The document is from Justice Alito. It was circulated on February 10, 2022. Above Alito’s name are the names of the other eight Justices. But none of those names are checked or highlighted in any way. It isn’t clear to me that this specific document was ever actually distributed to the other chambers.
Experts note that investigations typically begin by tracing the provenance of a particular copy of a document. Systems analysts can often trace what was printed to which printer, and by whom. The apparent use of a color printer makes that task easier. A number of the clerks, and perhaps at least some of the justices, have only black-and-white printers in their offices at the Court. If the document was printed at home — a distinct possibility, given the prevalence of work-from-home in the spring of 2022 — that will also narrow the field of suspects to people who have a color printer at home.
Josh Kovensky of Talking Points Memo adds:
Politico appears to have obtained and published a copy of the document that was at one time printed out. That suggested that it was “a physical copy,” not just an electronic one, according to Travis Crum, a Washington University in St. Louis law professor who clerked for Justices Kennedy and Stevens in 2014 and 2015. . . . Also important, some of the former clerks noted, was that the draft opinion included a stamp in the upper right hand corner. The stamp is added “when you have a draft to circulate — they print it out, and then stamp it,” another former law clerk told TPM.
At first glance, the use of a formal header makes the document look like an official product of the Court’s printing office, but with modern technology, all of that can be done electronically with a macro. The stamp showing circulation is also now done electronically. Drafts are then circulated over a secure internal email system to a list that includes the justices, the clerks, and at least some of the justices’ secretaries and assistants. That is a universe of perhaps five dozen people. Because the opinions are circulated electronically, it is not necessary that the stamp check off which justice the draft was delivered to, as it might have done in years past when drafts were handled by inter-office messengers.
Kovensky dismisses the possibility of an electronic hack, given not only that the leak is a printout but that Court protocols demand that draft opinions be created on computers that are not linked to the Internet. But that is a bit misleading: Opinions are drafted and emailed through a secure electronic system on computers that don’t have regular Web browsers and the like, but they are linked to each other, and with justices working from home, they would have access to that system outside the building. The level of security involved is thus a step down from the sort of thing you might associate with, say, a military or intelligence facility handling classified documents.
Kovensky also says that “there are four categories of Supreme Court staff that would have access to a physical copy of a draft opinion of the kind obtained by Politico” and names the justices themselves, their law clerks, the legal secretaries in chambers, and chambers aides (basically, internal messengers) who handle the physical delivery of documents between chambers. But with the electronic circulation of opinions, the fourth group would not necessarily have routine access to drafts.
There is a second and longer list of people who might have run across the opinion. For example, a justice or clerk could have brought the draft home or printed it at home — both possibilities that swiftly expand the universe of leakers to anyone in their household. Any diligent investigator should probe everyone with authorized access to find out if they took or printed drafts outside of the building or misplaced a copy internally. All sorts of people inside the Court’s building might also be able to pick up a copy left carelessly lying around — the cleaning and cafeteria staff, the printing and press offices, the marshals, etc. But that brings us to the next piece of the puzzle.
There are good reasons to believe that the leak had to come from someone with access to the draft opinion and access to enough of the deliberations of the justices to say how the vote was shaping up — in which case Blackman’s assumption of a leak by someone who found the document “floating around” would be off base. The Politico report by Josh Gerstein and Alexander Ward states:
A person familiar with the court’s deliberations said that four of the other Republican-appointed justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week. The three Democratic-appointed justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan — are working on one or more dissents, according to the person. How Chief Justice John Roberts will ultimately vote, and whether he will join an already written opinion or draft his own, is unclear.
This was followed by a CNN report by Tierney Sneed, Ariane de Vogue, and Joan Biskupic, which added:
It appears that five justices would be voting to overturn Roe. Chief Justice John Roberts did not want to completely overturn Roe v. Wade, meaning he would have dissented from part of Alito’s draft opinion, sources tell CNN, likely with the court’s three liberals. . . . Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned.
These reports cannot have come just from reading the draft opinion itself. The draft reflects that it is written by Alito and styled as “the opinion of the Court,” meaning that at least four other justices had to sign on. If you followed the oral argument and the records of the justices, you could easily guess that the likeliest four were Thomas, Gorsuch, Kavanaugh, and Barrett, you could be certain that the three liberals would never sign this, and you could take an educated guess that Roberts would be on the fence and looking for a way to uphold the Mississippi law without taking the dramatic step of overturning Roe.
But in order for Politico and CNN to report what they did, one of three things must be true: (1) one or both outlets have a common source, or separate sources, who are familiar with the justices’ deliberations; (2) one or both outlets have a common source, or separate sources, who are misleading the press by claiming to have that access and familiarity; or (3) one or both outlets are just making stuff up by taking educated guesses from the draft and pretending to have a real source.
All three of these are plausible options, but the first is the most plausible. True, we have a recent example in the Sotomayor-Gorsuch mask story that now seems to have been a bogus hit job: NPR ran with an inside-the-Court story, which was then denied on the record by all the participants. But even press cynics should understand that to be the exception, not the rule. Gerstein has a reputation as a pretty serious journalist, and Ward, as a national-security writer, has no reason to be on the byline except for his experience handling sensitive leaks (Tom Goldstein of SCOTUSBlog speculates for this reason that Ward was the likelier go-between). Biskupic is well plugged in with sources around the Court: Roberts sat for 20 hours of interviews for Biskupic’s biography of the chief justice. Both reports have multiple named journalists putting their reputations on the byline. Even the most biased and corner-cutting news outlets would be nervous about running this story without confidence that the nose count of justices was coming from someone in a position to know. Any attempt to identify the leaker should, therefore, begin with the logical assumption that it is probably someone with access to deliberations.
That, again, puts the justices themselves, their law clerks, and the secretaries who work in chambers in the bull’s-eye, expanding out from there to the possibility that it was leaked by a spouse or romantic partner of a justice, clerk, or secretary. That said, it remains a common-sense inference that a case as big as Dobbs is bound to be discussed within the building, and if gossip was overheard, that again extends the less-likely-but-possible list of suspects to anybody who works within the Court.
As a caution, however, it is not necessarily the case that the leaks about the deliberations came from the same source as the draft. Goldstein notes that the leak “was presumably — but not certainly — by the same person,” but also that it followed an April 26 Wall Street Journal editorial that appeared as if its timing and tone may have been the result of a leak from someone concerned that Roberts “may be trying to turn another Justice now” from overturning Roe to some middle-ground opinion.
The Journal editorial did not identify a source, and it is also possible that it was based on loose-lipped gossip or speculation from one justice’s camp. Justice Stephen Breyer, for example, recently accidentally let slip the outcome of one unreleased opinion during oral argument. There was nothing malicious there, just an octogenarian momentarily forgetting which decisions had already been handed down. Nobody would make quite that mistake with Dobbs, but people do sometimes let on things they didn’t mean to publicize. That is quite different from an explicit leak of the whole play-by-play of who is voting how, much less a leak of a whole opinion.
The Motive
Access is the first step, but as we can see, the list of people with possible access to the opinion is just long and nebulous enough that a process of elimination could be difficult if not impossible. The second step, which can be helpful in nailing down the whodunit, is understanding the thinking behind the leak: who stands to benefit, what risks are being run, and what type of person would do this.
On the “who benefits” question, it is always possible that a leak happens because somebody badly needed money and got paid for handing over documents and information, or just leaked out of “I got a secret to share” ego or favor-currying with reporters. But with passions running as high as they do over abortion, the far more logical presumption is that the leak came from someone who either leaked strategically in order to affect the outcome, or leaked emotionally out of rage at where the Court was headed.
In either event, the simplest explanation is that the leak came from someone highly committed to one outcome who thought his or her side was losing: either a progressive or liberal who was furious at the prospect of Roe being overturned and decided to make a last-gasp effort to summon political pressure, angry mobs, or worse against such a decision, or a conservative who feared or saw the five-justice majority slipping away and wanted to lock in the original majority by exposing what they had agreed to. Either theory has surface plausibility, but as Goldstein notes, the theory makes more sense in explaining the leak of the full Alito opinion if it comes from the Left:
Which ideological side would think it benefits from leaking the opinion? It seems to me, that is the left. I can see conservatives believing that they would gain from leaking the fact that Kavanaugh had originally voted to strike down Roe. They might believe it would tend to lock him into that position. But that was accomplished by leaking that fact to both The Wall Street Journal and Politico.
The question here is who believed they would benefit from leaking the opinion itself. That document was much more likely to rally liberals than conservatives. It brought home the fact that the court was poised to overrule Roe in much more concrete terms than merely leaking the vote. The opinion is also a full-throated attack on abortion rights and — with important caveats — substantive due process rights more broadly. And as a first draft — without the benefit of later refinement — it does not yet present the critique of Roe in its most persuasive form.
Of course, a leak from the Left could backfire spectacularly — but then, so could a “locking in” leak. In either event, one advantage that Colonel Curley has over the rest of us speculating from the outside is that she can quickly find out where the winds are blowing and who would know where they stand right now. If there has been no sign of Alito’s majority cracking, there would be very little motive to take extreme measures in order to stiffen spines. By contrast, if Alito’s opinion no longer commands a majority, there would be no point in someone on the left leaking it.
The least likely culprit is Roberts. He is famously obsessed with the institutional credibility of the Court. He has to understand that it reflects poorly on him, personally, for this to happen on his watch as the chief. He has no motive to try to harden anyone’s resistance to defecting from the majority to join his own separate position, and if his entire basis for opposing the overturning of Roe is to avoid public damage to the Court, the only worse outcome is to release an opinion where a majority was ready to do that, then have the majority fall apart under a public-pressure campaign. That said, it is much more plausible that Roberts saw the leak, was horrified by it, and immediately called Biskupic to counter-leak the fact that he is still undecided — news that Politico didn’t have, and which he might be able to rationalize as damage control.
I would also be very, very surprised if this came from Justice Clarence Thomas or his wife. One, both Thomases clearly have a strong dislike for the left-leaning Beltway media. Even if motivated to stiffen the spine of a colleague of Justice Thomas, the absolute last thing I could picture is Clarence or Ginni Thomas deciding to give a scoop like this to, of all outlets, Politico, whose founding editor is married to a former NARAL executive — let alone talk to CNN. Also, given the recent controversies around Ginni Thomas, it seems doubtful that she or her husband would trust any mainstream media outlet to keep their identity as a source confidential.
Justice Brett Kavanaugh also seems a highly unlikely suspect. Kavanaugh is presumed to be the justice most likely, one way or another, to decide the fate of the majority. He has no motive to try to pressure anybody. He also has had very bad experiences with the Beltway press and with angry mobs. Then there is Justice Amy Coney Barrett, who has multiple school-age children and is thus the justice most likely to be burdened by the additional security precautions triggered by the leak.
The second question is the risk taken by the leaker. Most anyone in position to leak had to understand that this would trigger an investigation with a significant chance of getting caught. The law clerks have the most to lose. A Supreme Court clerkship is a ticket to a long, prestigious, and/or lucrative legal career. A clerk who is found out could easily end up fired, disbarred for breaching confidences, and maybe prosecuted. The justices may feel that they could get away with this — they can be removed only by impeachment — but it would doubtless poison some of their relationships in a very small workplace. It would be sheer insanity for one of the Court’s conservatives to do this to get back at another conservative justice whose support will be needed again to make majorities many times in the near future. The career civil servants — secretaries, Court staff — have good jobs and must know they would lose them for doing this, no matter what civil-service or union protections they may have. The people with the least to lose are spouses, roommates, or other people a step removed from the Court itself.
The third line of inquiry is what type of person would do this. It is, by any assessment, an extreme step. Nothing like the leaking of a full draft opinion has happened on the modern Court. The leaker knows the risks, and knows the damage it would do to the institution. The leak instantly summoned up protests, some of which may descend on the justices’ homes. So long as the case remains undecided, the risk of an assassination attempt on one of the conservative justices is very real.
Who would do this? Most of the justices are institutionalist, rule-following personalities, and with life tenure, they all have a very big stake in the prestige of the Court. I will frankly be quite surprised if it turns out that it was any of the justices. The civil-service staffers are typically loyal to the institution first. Law clerks in general tend to be rule-following types as well, but they are also young and often politically committed (especially on abortion). It only takes one.
The sorts of people who have come out of law school in recent years as progressives seem the most obvious type. The kinds of popular-mob pressures placed on Kavanaugh during his confirmation hearings have no parallel on the right: Even when the “Stop the Steal” hysteria was at its height and the Court was turning away 2020 election cases, the mob went to the Capitol, not to the Supreme Court. The “burn it down” types cheering the leak have, so far as I can tell, all been on the left side of the political spectrum.
NBC News talked to law professors Brian Fitzpatrick and Carolyn Shapiro (former Scalia and Breyer clerks, respectively), both of whom thought that a clerk would be the likeliest leaker, and Fitzpatrick noted the campus climate: “I see it every day — young people at elite schools are very radicalized. . . . I think they embrace the ‘by any means necessary’ thinking that people did not embrace previously.” Bari Weiss quoted a law professor: “Many of the people we’ve been graduating from schools like Yale are the kind of people who would do such a thing.”
Some people on right-leaning Twitter have identified particular current clerks for the liberal justices as the possible leaker; some of those clerks have ties to Gerstein. Trying to pin this on particular, named individuals is irresponsible without evidence, but certainly, some of the biographies and track records of these clerks line up with the sort of person who might embrace that ethos.
But that is all just informed speculation: where the investigation should start. We don’t know what it will actually find at the end.
Leadership and Investigation
I do know this much: John Roberts’s Court is at stake here. If decisions can be leaked in draft form with impunity in order to influence their outcomes, this will become a regular feature of high-profile cases, placing the Court under even worse pressures and threats than already exist. I agree with Ed Whelan that the Court now needs to accelerate the timeline of the release of Dobbs as much as possible, in order to get out from under this. But it is also vitally important to take the investigation and consequences for the leaker very, very seriously. Roberts himself described this as a “betrayal of the confidences of the Court” that could “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.”
What I would have done, in Roberts’s position, after taking the first steps to beef up the Court’s security: Get all of the justices on board quickly with how the investigation is to run, then get everybody into a room at once and say: “We’re going to talk to the investigator, and we’re going to do it under oath. I’m walking in there first myself. The other justices are going in after me. And when that is done, all of you are following us. Anybody who won’t talk is fired.” The investigators can come back a second time once they have followed the forensic trail, but locking everybody in to deny the leak with the menace of federal criminal liability sharply in the air is an excellent way to accelerate the process, and a leader puts himself on the record first.
Let us hope he is taking this that seriously. This can never happen again.