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Supreme Court Leak Probe Leaves Mystery: Were Justices Queried?

Jan. 20, 2023, 3:08 PM

The US Supreme Court’s inconclusive report on the source of last year’s leaked draft opinion showed the limits of its ability to investigate itself and doesn’t squarely address a critical question: Were the justices ever questioned?

The court won’t say, spurring a fresh round of doubt about the institution’s chances of rebuilding record low public trust.

The investigation, led by the court marshal, failed to find not only who was responsible for the unprecedented leak of an imminent ruling overturning abortion rights, but also how the document made its way from the courthouse to Politico, which broke the story. In some respects, the probe raises more questions than it answers.

“If it turns out the court didn’t investigate one of the likeliest groups of suspects, that would be a bad look,” said Daniel Epps, professor of law at Washington University in St. Louis, who clerked for former Justice Anthony Kennedy.

Supreme Court Marshal Gail Curley’s 20-page report describes a monthslong investigation that reviewed the court’s computers and printer logs and included interviews with 97 court “personnel.” But in addition to the central question about the justices it doesn’t say why the probe was kept in-house, why the nation’s top court used “out of date” technology and how many employees violated secrecy rules.

Interview Subjects

The report stated that the investigation “focused” on law clerks and “permanent employees” without specifying if it also encompassed the justices. Another section seemed to draw a distinction between “employees” who had access to the draft opinion and the justices.

The court declined to clarify whether justices were subject to other aspects of the investigation, which included being asked to sign an affidavit that carried the risk of criminal prosecution for lying and having court-issued phones and computers searched.

Mark Zaid, a Washington-based attorney who represents government whistleblowers, said the fact that the court announced that it couldn’t find evidence conclusively tying anyone it interviewed to the leak made it that much more important to know if the justices were part of that process.

If the justices were exempt, Zaid said, “how do you not then conclude that a finger is pointing at a justice or a justice’s family member?”

Public Trust

Court-watchers across the political spectrum expressed disappointment, albeit for different reasons. Carrie Severino, president of the conservative Judicial Crisis Network and a former clerk for Justice Clarence Thomas, said it was a “huge blow for the court” that whoever leaked the draft appeared to have gotten away with it.

For those devastated by the court’s overturning of abortion rights, focus on the leak doesn’t rebuild confidence, said Sarah Lipton-Lubet, executive director of Take Back the Court, a group that has pushed to increase the number of justices.

She questioned why the court hadn’t taken a similar level of action regarding recent reports raising ethics concerns about some justices – such as connections between the court’s conservatives and anti-abortion advocates and the political work of Thomas’s wife, Ginni.

“It’s frankly just embarrassing, I think, for the court to really be focused in all the wrong places,” Lipton-Lubet said.

A September poll by Pew Research Center showed the partisan divide on the court was wider than at any point in more than three decades, with favorable views by only 28% of Democrats or liberal-leaning independents compared with 73% of Republicans and conservative-leaning independents.

“If you’re looking for examples of the court being above politics, and you’re looking for visible examples of the court pushing back on the increasingly loud charges that it’s simply another front of partisan political power, this ain’t it,” said Steve Vladeck, a professor at the University of Texas School of Law who has studied the Supreme Court.

Court Transparency

Chief Justice John Roberts never explained why he put Curley in charge instead of seeking help from an investigative agency, such as the Justice Department or the FBI. Curley, a former national security lawyer for the Army, was appointed in 2021 as the court’s chief security officer, overseeing about 260 employees, including the police that provide security for the justices.

Melissa Murray, a professor at New York University School of Law, said there should have been an independent, outside investigation into what was thought to be an internal leak. “It doesn’t seem like they were trying very hard to get to the bottom of this,” she said.

Not so says Michael Chertoff, a former US appeals court judge and George W. Bush-era Homeland Security secretary who “assessed the investigation” at the request of the court. He concluded that it was “thorough” and could not suggest any additional investigatory steps that they hadn’t taken, the report said.

Secrecy Violations

Curley found that too many court employees had access to sensitive material and that the court should take more steps to limit exposure and tighten control over how those documents move around. She also reported that some employees admitted to telling their spouses or partners about the draft opinion or vote count, in violation of the court’s strict confidentiality rules.

“The temptation to discuss interesting pending or decided cases among friends, spouses, or other family members, for example, must be scrupulously resisted,” the Law Clerk’s Code of Conduct states.

The report’s findings reveal “a work environment that was perhaps a little disrupted and loosey goosey because of the pandemic,” Murray said, calling it “a system that operated on norms of trust rather than rules and regulations that were firmly in place.”

Aging Technology

The report does point some blame at the court’s aging computer systems, noting that “the existing platform for case-related documents appears to be out of date and in need of an overhaul.” Investigators also were unable to glean much from examining courthouse printers because they have limited tracking capabilities and several were not even connected to the court’s networks.

“If it was a court employee,” the report says, “that person was able to act with impunity because of inadequate security with respect to the movement of hard copy documents from the court to home, the absence of mechanisms to track print jobs on court printers and copiers, and other gaps in security or policies.”

Zaid noted that the report showed the Supreme Court didn’t have the same type of printer tracking technology used by US intelligence agencies that made it easier to identify who had hands on a particular document.

No Closure

Vladeck questioned the court’s ability to prevent future leaks when it couldn’t nail down the facts of how this one happened.

“It’s hard to close a door when you don’t know which door it was,” he said.

Carter Phillips, a veteran Supreme Court litigator and former clerk to the late Chief Justice Warren Burger, said it would be disappointing if the fallout from the leak was that communication and movement around the courthouse was more restricted and court personnel no longer felt they could trust one another.

“To the extent that changes, I think it’s kind of unfortunate, the ability to go down the hall and talk to people and pop into chambers without triggering some anxiety about whether your purpose is just to talk to a fellow clerk about a case or a problem or an issue, or sort of sneaking around trying to find out something else,” Phillips said.

To contact the reporters on this story:
Zoe Tillman in Washington at ztillman2@bloomberg.net;
Sabrina Willmer in Washington at swillmer2@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Peter Jeffrey

© 2023 Bloomberg L.P. All rights reserved. Used with permission.