Pearl River This is one of those crimes without criminals. US Supreme Court Justice Samuel Alito’s draft decision gutting the fifty-year precedent Roe v. Wade allowing women’s right to choose to have an abortion was leaked. Oh my, oh my! In a tither, the Chief Justice, the media, a legion of pundits expresses outrage and speculate on the motives, all unite in arguing that the veil of secrecy around the court has been pierced potentially permanently damaging the credibility of the court as the arbiter of the law. What poppycock!
Chief Justice John Roberts pronounces that no stone will be left unturned to uncover the identity of the leaker and make sure they are brought to justice and proper punishment. The investigation is delegated to the court’s own marshal, rather than an outsider, although the former head of Homeland Security is brought in to review her efforts before a report is released. Months go by. The Dobbs’ 6-3 decision written of course by Alito tracks the draft and overturns Roe, creating an ongoing political firestorm. Now, months later, the 20-page report is out. Anyone whose hands had touched the draft was interrogated and had their phones, computers, and emails searched, and had to sign an affidavit with potential criminal liability testifying to their veracity. No leaker was found.
` All the justices had conversations with the chief investigator, their own employee, and all claimed their innocence, but for them, it was pattycake. No affidavits with potential legal penalties were signed. No tech and correspondence reviewed. No spouses interviewed.
Where do the fingers point? At the justices themselves, of course. Is this really a mystery? Is anyone really surprised? Is this even a new thing? No, according to a what one former clerk and current law professor writes:
…justices have a long history of being the ultimate source of leaks. Justice William O. Douglas was notorious for talking to the press; the historian Douglas Brinkley described leaking as Douglas’s “modus operandi.” A remarkable five Supreme Court justices aided “in the breach of court secrecy” that made possible Bob Woodward and Scott Armstrong’s bombshell book on the inner workings of the Burger court, “The Brethren.” And more than a century earlier, Justice John Catron repeatedly leaked information about the Dred Scott case. If history is our guide (a claim that this court is increasingly prone to argue), the justices should have been among the first targets of the investigation.
In fact, only a couple of months ago, Justice Alito was linked to an earlier leak on the Citizens’ decision a few years ago that unleashed a tidal wave of donor money into politics. The leak was of course to donors and conservative advocates.
When it comes to donors, the court and the justices are down and dodgy. There’s no code of ethics whatsoever. Justices regularly travel, lodge, and eat at the largess of donors and even companies that have cases before the court. They recuse themselves from cases before them based on their wishes and whims of the moment, including Justice Clarence Thomas’ refusal to recuse on any January 6th case, despite his own wife’s exhaustively reported participation. The Supreme Court Historical Society is a charity run by the Justices, but also serves as a forum for donors to interact with them and exert their influence through their contributions.
Add to this that the Court and the Justices are fully ensconced in Washington, D. C. and its political culture, where leaking is more common and frequent than the cherry blossoms in spring. Of course, the leak came from them. The “why” and “how” are less important than acknowledging that is just common practice, and they are part of it.
As for the hue and cry about this particular leak damaging the credibility of the court, I can only say, given the preponderance of evidence presented here and in countless decisions now driven by the hyper-conservative ideology-infected super majority: Who are you kidding, what credibility?