Will we ever know the identity of the Supreme Court leaker?

There is growing concern that we may never learn the identity of the person who for the first time in history leaked a draft of a pending decision.  It's been nine and a half weeks since the draft opinion on Dobbs v. Jackson Women's Health was published by Politico on May 2.  Although this is the biggest breach in Supreme Court security in history, we have had no indication that the culprit has been identified.  This is strange, given the very small pool — fewer than 100 clerks, justices, and support staff — of suspects who could have had access to the very secret draft opinion, one that turned out to be very close to the decision finally handed down by the Court.

The agency in charge of Supreme Court leak investigation is the Supreme Court Marshals, which is not an investigative agency, but which provides security for the justices while in Washington, D.C. and handles many administrative functions for the Court, including contracts administration, printing documents, paying salaries, and compensating expenses for maintaining buildings and grounds.  The total number of staff is 260, including the small Supreme Court Police force that provides security at the Supreme Court Building.  It is headed by Col. Gail Curley, a career Army lawyer who has held the title of U.S. attorney.

Given the magnitude of the breach of Court security, threatening the future integrity of its functioning if leaks become commonplace, it is hard to understand why nothing has been revealed yet to the public about apprehending the miscreant or miscreants.  Polygraph tests should have been administered to all who had access to the draft document, the phone records of those with signs of concern should have been subpoenaed, and thorough interrogations conducted of all potential suspects.

Since the Supreme Court Marshals do not have investigative staff experienced in these matters, it is probably necessary to hire outside experts to conduct this work.  As a separate branch of government, the Supreme Court under Chief Justice Roberts may be reluctant to bring in Executive Branch personnel from the FBI (which is now highly politicized) or U.S. Marshals Service.  But there are numerous private security contractors who already perform sensitive work for the federal government, and which could lend staff and expertise to the investigation.

Now, it may be that the wheels are grinding slowly but very fine, and that we will have a conclusive result in the reasonable future.  But I am worried that, with the media not pressing for results, this investigation may go nowhere, and that for years to come, we will not know who leaked the draft.

What if the leaker turns out to be one of the justices?  Would Chief Justice Roberts allow such a finding to be known?  He expresses grave concern over the standing of the Court (and the entire federal Judiciary) with the public.  Would he be willing to ignite a firestorm that would surely follow if a justice were found to be behind the leak?  My guess is that he would not.  Inevitably, there would be calls for impeachment, and depending on the ideological affiliation of the justice, different political factions would be pressing for impeachment and conviction.  The potential for dirty laundry airing is considerable, and Chief Justice Roberts would abhor that.

At a minimum, I would like to see a report from the Supreme Court Marshals on what steps they have taken so far, and what further measures they plan on taking.  The public deserves to know that this is not a cover-up.

Photo credit: Joe RaviCC BY-SA 3.0 license.

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