My assumption, when I read yesterday’s report on the Dobbs leak investigation, was that the justices themselves had been among the 97 people questioned. They fit all the criteria, the report noted the questioning of 97 people when there were 82 employees plus the justices who had access to the draft opinion, and the report went out of its way to list among the rules precluding disclosure the Code of Conduct for U.S. Judges, which imposes no obligations on anyone else inside the Court besides the justices. It could have been written clearer, but that seemed the likeliest reading of how the report was written. Yet, because the report did not explicitly mention the justices as being questioned and referenced “permanent employees” of the Court (a term typically not used to describe the justices, although they are employed to work at the Court and are as permanent as it gets), a whole lot of people went out on a limb with varying degrees of certainty in claiming that they were not questioned, or at least treating it as likely that they were not. This came disproportionately from progressives who have taken the position all along that, so long as no leaker was caught, they could claim that it was one of the conservative justices (ideally Samuel Alito or Clarence Thomas) or perhaps their wives (especially Ginni Thomas).
Today, however, the marshal sawed that limb off: “During the course of the investigation, I spoke with each of the Justices, several on multiple occasions. The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits.” While it would have been much better practice to have the justices all join the rest of the witnesses in signing affidavits — the chief justice could have led by example — a 24-hour news cycle about the justices and their spouses being entirely exempted from questioning went up in smoke.
Examples:
- Mark Joseph Stern and Dahlia Lithwick: “The Justices Don’t Want to Know Who Leaked Dobbs.” Lithwick: “It appears—former clerks, the justices, and the justices’ spouses were seemingly not meaningfully investigated. . . . Did the investigation investigate the justices themselves at all? How would Gail Curley have even managed to sit down a justice and shine a light in their face in a smoke-filled room, anyhow?” Stern: “I think we can safely say that the investigators did not look into the justices. The report distinguishes ’employees’ (permanent staff plus law clerks) from the justices. For instance, it says that 82 employees had access to the draft ‘in addition to the justices.’ More importantly, there’s absolutely no indication that a single justice was interviewed. On one hand, that makes sense because the justices have absolute power and are subject to zero oversight. Of course they don’t want to put themselves through that ringer. But on the other hand it makes zero sense because conservative justices had the strongest incentive to leak the draft! . . . A conservative justice like Samuel Alito or Clarence Thomas would have had good reason to leak the draft to lock in Kavanaugh’s vote.”
- Chris Geidner: “Documents released by the court on Thursday . . . suggest that part of the problem could be that the justices themselves weren’t investigated for the leak. . . . It appears that the justices exempted themselves from the very investigatory tactics that they felt were justified in going after their ‘personnel.’” Of course, Geidner argued that this should “draw[] more attention to the justices and their interests surrounding the leak,” but was not exactly anti-leak, noting that “I would be fine with there being no leak investigation in this situation.” On Twitter, Geidner was more definitive: “The justices themselves were not asked questions or investigated, per what I gather from the Marshal’s report.”
- Jamison Foser: “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. . . . The fact that the justices were excluded from the investigation is particularly striking. . . . 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.”
- Josh Marshall: “The plain language of the report strongly suggests that the investigation did not investigate or question the justices themselves. It repeatedly refers to investigations of and questioning of Court ‘personnel’ (temporary and permanent) and Court ’employees.’ We can’t say those terms have a definitive legal meaning in this context. But the justices certainly aren’t employees of the Court. They are the Court. ‘Personnel’ also seems to refer to the same class of people: everyone who works at and for the Court, not the justices. . . . It’s not terribly surprising that the investigation didn’t investigate the justices themselves. But it’s worth noting that that is at least the most obvious reading of the wording of the report.”
- Paul Campos, under photos of Thomas and Alito: “See if you can guess who wasn’t investigated.”
- Irin Carmon, in a column that has since been updated without revealing what changed, asked in its subtitle: “Did they talk to Alito?” The report “does not tell you whether investigators actually spoke to the justices themselves. . . . The justices themselves set the terms, and those terms make them untouchable.”
- Joe Patrice: “Confirmed, the report indicates that they only dealt with employees not justices.”
- Allison Gill, a.k.a. Mueller She Wrote: “The SCOTUS leak investigation only questioned the clerks and staff, but not the Justices. Every staffer and clerk signed a sworn affidavit stating they didn’t leak the Dobbs opinion. Guess who that leaves?”
- Luppe Luppen, a.k.a. nycsouthpaw: “There’s just no indication in the report that the investigators talked to or looked at the Justices themselves.”
- Steven Mazie: “Several of us in the SCOTUS press corps have asked the Court if the 97 interviewees in the leak investigation included the Justices. So far, no word. I’d think if the answer was yes, we’d have heard back right away. So it seems the nine justices were not questioned.”
To be fair, it wasn’t only left-wingers who got this wrong. Josh Blackman, a sensible guy and a careful reader, wrote that “I do not think the nine Justices would be included in the category of ‘permanent employees.’ Indeed, it does not seem likely that the Justices were even interviewed.” Joel Pollak at Breitbart wrote that “the investigation . . . appears not to have included Justices themselves in questioning.”
We still don’t know who the leaker is, but I continue to believe, as I have said from the beginning, that it was unlikely that the leak came from a justice on either side of the ideological divide. David Lat agrees and thinks it likely that the investigation did have one or more serious suspects, but just couldn’t prove who did it. It remains a scandal that the leaker has not been found, and some of the fault for that has to lie with how the investigation was run, but not because it is all that likely that the culprit was a justice.