Supreme Court report on leak of draft opinion overturning Roe draws criticism from all sides

John Fritze

WASHINGTON – A 20-page report from the Supreme Court that fails to identify the person responsible for the unprecedented leak of a draft opinion in a major abortion case last year is drawing sharp criticism from both ends of the political spectrum.

The report highlighted, in general terms, outdated security policies for how the high court handles documents but left a number of key questions unresolved – including about the scope of the probe itself. That vacuum of information may be filled by a new House Republican majority, which has already signaled an interest in hearings about the leak.

On Friday, Supreme Court Marshal Gail Curley addressed one of the questions that immediately began to swirl around the document: Whether the justices themselves had been interviewed as part of the monthslong investigation into the leak.

"During the course of the investigation, I spoke with each of the justices, several on multiple occasions," Curley said in a statement. "I followed up on all credible leads, none of which implicated the justices or their spouses."

But Curley said that the justices, unlike court employees who had access to the draft opinion, were not asked to sign affidavits denying they had leaked the draft.

Americans' trust in the Supreme Court has ebbed significantly, polls show. Only 47% of Americans said they had a "great deal" or "fair amount" of trust in the high court, a 20-percentage point drop from 2020, according to a Gallup poll in September. Advocates for increased transparency at the court predicted the report won't help those numbers.

"This, to me, is another missed opportunity for SCOTUS," said Gabe Roth, executive director of Fix the Court, which pushes for tighter ethics rules and greater transparency. "I think the reputation of the court will continue to suffer until they change course."

Supreme Court leak report explained

  • The Supreme Court announced Thursday that its investigation into the unprecedented leak of a draft opinion in the abortion case in May failed to identify who was responsible. Investigators interviewed nearly 100 court employees and made recommendations on how to shore up the handling of sensitive documents. But it's not clear if any of those changes would prevent a future leak. 
  • The report was also vague on some key details, including how much, if at all, the Supreme Court's marshal sought outside help from the Justice Department in the probe. Also unclear, whose laptops and cell phones were collected and reviewed as part of the probe. 
  • And there are big picture questions left unanswered, as well: Will the lack of a conclusive result encourage other leaks? Could Congress step in and launch its own review?

Supreme Court justices questioned about leak 

Throughout the report, Curley highlighted the questioning of law clerks and "permanent employees who had or may have had access to the draft."  What was initially unclear in that language is whether the justices themselves were interviewed.

Curley cleared that question up, in part, a day later, saying that she spoke with each of the justices.

In past Supreme Court leaks, a lot of attention is placed on the 20-something law clerks who cycle through the justices' chambers. But Supreme Court clerks are notoriously cautious and it's not farfetched to think that one of the justices may be responsible.     

In 1979, two Washington Post journalists published a book on the Supreme Court, "The Brethren," that set off a flurry of internal investigations after they revealed the deliberations in major cases, including Roe v. Wade. Years later, reporter Bob Woodward revealed that Associate Justice Potter Stewart was a key source in that effort. 

The Supreme Court on Jan. 19, 2023.

Is that all there is to the leak investigation? 

The Supreme Court's two-page statement on the report notes that investigators would continue to review "electronic data" and that "a few other inquiries remain pending." But given the extent of the release – after months of silence about the status of the probe – it was difficult to read the report as anything other than an attempt at a final word. 

As part of the announcement, the court's statement disclosed that former Homeland Security Secretary Michael Chertoff was asked to review the marshal's investigation. In a one-page statement about that review, Chertoff said he could not identify any additional "useful investigative measures." But if that review was intended to build confidence in the investigation, it's not clear that the effort worked.   

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"This is inexcusable," tweeted Sen. Josh Hawley, a Missouri Republican and member of the Senate Judiciary Committee. "And it means brazen attempts like this one to change the court's decisions – from within – will become more common."

Before the report, House Republicans signaled an interest in holding hearings on the leak. Conservatives have speculated that a liberal clerk, upset about the court's decision on abortion, leaked the draft. Many liberals, meanwhile, believe the leak was a strategic play by a conservative to hold together a majority for overturning Roe.    

Investigation reveals disclosures to spouses; preponderance of evidence standard 

A few more technical questions stuck out from the report.

Court employees were asked to sign an affidavit denying that they had leaked the draft opinion, which they apparently all did. But the report noted "a few" of the court's employees "admitted to telling their spouses about the draft opinion or vote count." The report said those employees "annotated their affidavits" to make note of that disclosure.

The report doesn't indicate if investigators contacted spouses, nor whether employees faced any repercussions for admitting those disclosures.

In her statement Friday, Curley said that the justices were not asked to sign affidavits. Based on her initial discussions with them, she said, "I did not believe that it was necessary to ask the justices to sign sworn affidavits."

Investigators repeatedly said they were unable to identify the leaker using "a preponderance of the evidence standard." That's a legal concept that comes up most often in civil cases that essentially means there's a greater than 50% chance that a claim is true. It's not clear if investigators have theories about the responsible party and evidence to back up those theories to some lesser standard.  

Protesters at the Supreme Court on Jan. 20, 2023.

What happens next at SCOTUS? 

The marshal's report recommended fewer employees be given access to sensitive documents – 82 employees had access to the draft opinion in the abortion case, in addition to the justices. And it said that the court's current method of destroying non-public documents had "vulnerabilities that should be addressed."

But it's not clear whether any of those changes might prevent a future leak.

Roth noted the report cited a code of conduct for law clerks and for other federal judges and suggested the court might consider supporting legislation to explicitly prohibit the disclosure of certain Supreme Court documents. But, he noted, the report couldn't mention a code of conduct for Supreme Court justices – because there isn't one.

"Irony alert," said Roth, who has been pushing for such a code for years. 

"This just leaves more questions than it gives answers," Roth said of the report. "There's so many things that remain unanswered."