News that an initial majority draft opinion revealing the Supreme Court’s preliminary ruling to overturn two abortion landmark cases had been leaked in early May stunned politicians, journalists and ordinary Americans across the political spectrum.
The draft, authored by Supreme Court Associate Justice Samuel Alito and reported by Politico, stated the court would finally do away with Roe v. Wade and Planned Parenthood v. Casey, the two decisions that established and maintained a regime of legal abortion in the United States for almost 50 years.
“We hold that Roe and Casey must be overruled,” the draft opinion declared.
As breathtaking as the ramifications of Alito’s words were, in a way, it was almost more astonishing that a Supreme Court insider would leak the document in the first place.
Immediately following this unprecedented breach of trust, Chief Justice John Roberts ordered the court’s marshal, Gail Curley, to conduct a thorough investigation to find the culprit.
He issued a defiant statement: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.”
That was nearly three months ago and, so far, no leaker has been named, but the investigation continues, Fox reported Friday.
Supreme Court Justice John Roberts confirmed the document that was leaked on Monday evening is “authentic” and ordered the marshal of the court to begin an investigation into the leak’s source.
Check back here for the latest updates.https://t.co/FeLXjVT06I
— Washington Examiner (@dcexaminer) May 3, 2022
On Friday, Fox News reported speaking to multiple sources who said investigators have narrowed down the number of possible suspects from the roughly 70 individuals “who may have had access to the draft opinion.”
Supreme Court law clerks are assigned to work for a specific justice for a one-year term which, according to Fox, usually ends in mid-July.
This means that most of the clerks serving at the time of the leak have recently left the court which calls their “future cooperation” with investigators into question.
These individuals were asked to turn over their cellphones and other electronic devices prior to their departure, the report stated. However, it is not publicly known whether they did so.
The sources told Fox that several permanent court staffers have been asked to do so as well.
The court has remained characteristically tight-lipped about the investigation into the leaker, Fox reported, leaving it not publicly known what, if any, “punishment or discipline will be forthcoming; whether outside federal law enforcement or private law or security firm has been hired to help; and what steps if any will be taken to prevent future such leaks.”
Given the gravity of the offense, it’s especially egregious to hear that there’s even a question about whether the leaker, once identified, will be punished.
If this individual gets off scot-free, it will only open the door to future leaks, which will undermine the integrity, and ultimately, the legitimacy and the authority of the court.
Fox requested a comment from the court on Friday and received a formal “no comment” from public information officer Patricia McCabe.
This is a tricky situation for investigators. They may have narrowed down the suspect list, but they are still dealing with people who are intimately familiar with the law and know exactly what they have the right to refuse. The leaker is included in this as well, and will likely use the knowledge to his or her own benefit.
This leak has inflicted lasting damage on the court, which has not been touched by such a breach of trust in the modern era.
Speaking at an event in Dallas shortly after the leak, Justice Clarence Thomas told his audience, “Look where we are, where now — that trust or that belief is gone forever. When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity that you can explain… but you can’t undo it.”
Following the leak and the final ruling in Dobbs v. Jackson Women’s Health Organization issued on June 24, the once collegial dynamic among the nine justices has become “strained,” Fox reported, citing sources close to the situation. The justices are hoping the summer recess will serve as a “cooling off period.”
Strained as relations between the justices may be, the leak has created even bigger problems for the country.
This breach deserves the full attention of the law.
Sadly, it’s doubtful that Attorney General Merrick Garland has any appetite to find the leaker, let alone to bring him or her to justice.
Unfortunately, until a Republican occupies the White House and a new attorney general is confirmed, that’s not likely to change.
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