The Supreme Court said Thursday it failed to solve the mystery of who leaked a draft of its opinion last May in the pending abortion case that led to Roe v. Wade being overturned.
The leak of the high-profile decision was one of the largest breaches in the court’s history.
In a statement, the court said its counselor, Gil Curley, interviewed 97 people who had worked on the court and had access to draft opinions, and then re-interviewed many of them. But she could not determine who copied the draft opinion and gave it to Politico.
The Marshals team conducted additional forensic analysis and conducted multiple follow-up interviews with some of the employees. “However, the team has not yet been able to identify the person responsible due to the preponderance of evidence,” the court said.
The leaked draft confirmed what many had suspected at the time. Five conservatives, led by Judge Samuel A. Alito Jr. repeals the right to abortion established in 1973 and allows states to ban some or all of these procedures.
The day after the unprecedented leak, Chief Justice John G. Roberts Jr. confirmed that the draft opinion was valid, and said the breach would not affect the handling of the decision.
In late June, the Court issued a 5-4 decision in the Mississippi abortion case, and its opinion was exactly the same as the draft.
The justices said they were shocked and surprised by the leak, and remain outraged by what they described in Thursday’s statement as an “extraordinary breach of trust” and a “serious assault on the judicial process.”
Although justices often argue back and forth when hearing cases in court, they insist on strict confidentiality when writing and reviewing opinions.
Law clerks are appointed for one year and are required to pledge to keep these internal discussions confidential.
The Marshals report hinted that it might suspect that one or more people were involved in the leak, but it lacked the evidence to prove it. She also said the pandemic may have played a role because employees were working from home.
“If a court employee discloses the draft opinion, that person has brazenly violated a system built on trust with limited safeguards to regulate and restrict access to highly sensitive information,” she wrote. “The pandemic and the resulting expansion of the ability to work from home, as well as loopholes in the Court’s security policies, created an environment in which it was all too easy to remove sensitive information from the premises and the Court’s IT networks, raising the risk of intentional and accidental disclosure of sensitive information to the Court.”
Michael Chertoff, the former Homeland Security secretary, said he was asked to independently evaluate the court’s internal investigation, and declared it a “thorough investigation”.
The court said it did not close the investigation. Marshall says that[i]Investigators continue to review and process some of the electronic data collected and some other inquiries are pending. To the extent that additional investigation yields new evidence or leads, investigators will pursue them.”