It’s been almost three months, and there still is no word on the source of the leaked Dobbs draft.
It’s been almost three months, and there still is no word on the source of the leaked Dobbs draft.
O n May 2, Politico published a leaked draft of Justice Samuel Alito’s majority decision in Dobbs v. Jackson Women’s Health Organization, the result of an unprecedented breach at the Supreme Court. NR’s Dan McLaughlin has covered this extensively (here, here, here, here, and here). But in the nearly three months since Chief Justice John Roberts ordered an investigation of the leak — an inquiry apparently overseen by the marshal of the Supreme Court, Colonel Gail A. Curley — there has been no official word on anything related to the probe. Not only is the decision now out, but, more significantly, the Supreme Court law clerks are finished with their term and have moved on with their careers. If the leaker is among them, he or she may have breathed a big sigh of relief upon leaving the Court.
The mystery regarding the identity of the leaker remains. Yet conventional wisdom has held that the leaker was probably someone close to one of the liberal justices at the time — Sonia Sotomayor, Elena Kagan, or Stephen Breyer. Dan examined the case in detail here. Tom Goldstein of SCOTUSblog also has offered a theory. Observing that the Politico story was written by Josh Gerstein and Alexander Ward, a legal-affairs reporter and national-security reporter, respectively, he speculates that the only logical reason for Ward to have a byline on the SCOTUS story is that the leaker went to him. Dan has pointed out that before working for Politico, Ward was a reporter at Vox, a far-left news outlet, perhaps more reason to be comfortable in the assumption that the leak indeed came from the left.
At first, it seemed the investigation was being taken seriously. Supreme Court officials took steps to command law clerks to hand over their cellphones and sign affidavits for the investigation.
Fast-forward to the present, and CNN’s Joan Biskupic is reporting on New Day that “nobody has been caught, and there is just a lot of skepticism inside that despite how aggressive the investigation has gone, that they’re not close to finding out who it is.” Biskupic also pointed out that there might have been more than one person involved in the leak.
The Supreme Court did not respond to National Review’s request for comment.
If Biskupic’s sources are to be believed, little to no progress on learning the identity of the leaker has been made. Back in May, Nicholas Peck and Thomas Feeney at the Hill opined that the marshal of the Court should either make a criminal referral or request the appointment of a special counsel, particularly a U.S. attorney who has experience working for the court. Peck and Feeney wrote:
This investigation requires specialized technical knowledge and access to robust investigative tools that might not be readily available to her [Marshal Curly]. Moreover, it’s unclear whether the Marshal or the Supreme Court Police would even have authority to conduct a criminal investigation of the leak, as federal law appears to authorize them to make arrests only as necessary to protect the Supreme Court building, grounds, and personnel.
It indeed may be time to bring in a special counsel who can harness all the available resources of law enforcement to find the leaker. There needs to be swift and harsh punishment of whoever leaked the draft. Otherwise, this will only happen again when another high-profile case reaches the Court and another law clerk or employee thinks a leak might be a good way to intimidate the justices.
Many in the legacy media have been so consumed by the Dobbs decision and its aftermath that questions regarding the origin of the leak are fading. But while the public pressure might be lifting, the damage from the leak remains. Trust cannot be restored — at an institution expected to be shielded from public opinion and politics — until the culprit is found, and it is made clear that this kind of breach will not be tolerated.