The Supreme Court said Thursday it has failed to solve the mystery of who leaked its draft opinion last May in the pending abortion case that resulted in overturning Roe vs. Wade.
The leak of the high-profile decision is one of the biggest breaches in court history.
In a statement, the court said Gail Curley, its marshal, interviewed 97 people who worked at the court and had access to draft opinions, and then re-interviewed several of them. But she could not determine who copied the draft opinion and gave it to Politico.
“The Marshal’s team performed additional forensic analysis and conducted multiple follow-up interviews of certain employees. But the team has to date been unable to identify a person responsible by a preponderance of the evidence,” the court said.
The leaked draft confirmed what many had already suspected at the time. Five conservatives led by Justice Samuel A. Alito Jr. had agreed to overturn the right to abortion established in 1973 and allow states to prohibit some or all such procedures.
The day after the unprecedented leak, Chief Justice John G. Roberts Jr. confirmed the draft opinion was authentic, and he said the breach would not affect the handling of the decision.
In late June, the court issued the 5-4 decision in the Mississippi abortion case, and its opinion closely matched the draft.
The justices said they were shocked and surprised by the leak, and they remain angry over what they described in Thursday’s statement as “an extraordinary betrayal of trust” and a “grave assault on the judicial process.”
Although the justices often argue back and forth when cases are heard in the court, they insist on strict confidentiality when they are writing and revising opinions.
Law clerks are hired for one year and are required to promise they will maintain the confidentiality of these internal debates.
The marshal’s report hinted that she may suspect one or more people were involved in the leak, but lacked evidence to prove that. She also said the COVID-19 pandemic may have played a role because employees were working from home.
“If a court employee disclosed the draft opinion, that person brazenly violated a system that was built fundamentally on trust with limited safeguards to regulate and constrain access to very sensitive information,” she wrote. “The pandemic and resulting expansion of the ability to work from home, as well as gaps in the court’s security policies, created an environment where it was too easy to remove sensitive information from the building and the court’s IT networks, increasing the risk of both deliberate and accidental disclosures of court sensitive information.”
Former Homeland Security Secretary Michael Chertoff said he had been asked to independently evaluate the court’s internal inquiry, and he pronounced it a “thorough investigation.”
The court said it has not closed the investigation. “The Marshal reports that ‘[i]nvestigators continue to review and process some electronic data that has been collected and a few other inquiries remain pending. To the extent that additional investigation yields new evidence or leads, the investigators will pursue them.”
