Supreme Court says it can’t identify who leaked draft abortion ruling

WASHINGTON — The Supreme Court announced Thursday that after a long investigation has been unable to conclusively identify the person who leaked an unpublished draft of an opinion indicating that the court was about to reverse abortion rights.

In an unsigned statement, the court said all leads had been followed up and forensic analysis had been carried out, but “to date, the team has been unable to identify a person responsible due to a preponderance of the evidence.”

The accompanying report suggested that the court was not waterproof, with some employees admitting that they had spoken with their spouses about the draft opinion and how the judges had voted. The investigation by Supreme Court bailiff Gail Curley was largely limited to the court building itself and the people who work there, meaning that any actions taken by people at home or elsewhere using Personal devices were mostly not within their reach.

The report also stated that the judges were not vetted as part of the investigation, focusing on permanent employees and paralegals who work for each judge for one year.

Curley said 97 court employees were interviewed and all denied being the informants. She said it was unlikely that the court’s information technology systems were compromised.

“No one has confessed to publicly disclosing the document and none of the available forensic and other evidence provided a basis for identifying any individual as the source of the document,” Curley wrote.

“If a court employee released the draft opinion, that person was in flagrant breach of a system that was fundamentally built on trust with limited safeguards to regulate and restrict access to highly sensitive information,” it added.

The court also consulted with Michael Chertoff, who served as Secretary of Homeland Security during the administration of President George W. Bush. Chertoff wrote in a separate statement that he had recommended several steps the court could take to improve security, including restrictions on the circulation of hard copies of confidential documents.

Chertoff said he had reviewed the investigation and concluded that it was thoroughly conducted.

“At this time, I am unable to identify any additional useful investigative measures,” he added.

Washington was rocked in May when Politico released a draft opinion written by Justice Samuel Alito indicating that the court, which has a 6-3 conservative majority, was on the verge of overturning Roe v. Wade, the landmark ruling on the right to abortion.

Traditionally, the internal operations of the court are shrouded in secrecy, and it is highly unusual for signs of internal deliberations to leak out before a ruling is issued. A day later, Chief Justice John Roberts confirmed the draft was genuine, saying it heralded an investigation into the leak.

Thursday’s report said 82 employees, not including judges, had access to either a hard copy or an electronic version of the draft opinion. Several people admitted in interviews that they “did not treat information related to the draft opinion in a manner consistent with the court’s confidentiality policies,” the report says.

The employees were asked to sign an affidavit stating that they did not leak the opinion. They would be subject to criminal prosecution if they lied to investigators.

But Curley seemed to admit that there were limitations to the information the researchers could glean from the interviews.

“Very few of the people interviewed were willing to speculate on how the disclosure might have occurred or who might have been involved,” he said.

Commenting on online speculation about who the leaker might be, including references to specific paralegals, Curley said that “investigators found nothing to substantiate any of the social media allegations regarding disclosure.”

University of Notre Dame School of Law professor Richard Garnett, a former clerk to the late conservative Chief Justice William Rehnquist, expressed disappointment that the leaker was not identified due to the impact he could have both inside and outside the court.

“I am concerned that the failure to identify the leaker contributes not only to various partisan speculation but also to a reduction in collegiality among judges and court staff,” he said in an email.

Republican lawmakers and conservative activists, some of whom claimed without evidence that the leak came from a liberal court clerk who tried to pressure judges not to throw out Roe, complained that the culprit was not identified.

“The leaker must be brought to justice!” Republican Senator Ted Cruz tweeted.

The inconclusive findings also led some liberals to double down on their speculation that the leak likely came from the court’s conservative wing out of concern that most were uninsured before the official ruling was issued.

“I still think the best guess is that a Conservative judge or clerk leaked the draft opinion to prevent someone in the Conservative majority from changing their tentative vote.” tweeted Jessica Levinson, a professor at Loyola Law School in Los Angeles.

The Politico report sparked abortion rights protests, prompting the court to erect a security fence around the building. In the months that followed, there were protests at the homes of some judges, and a man was charged with attempted murder after he was arrested near the home of conservative judge Brett Kavanaugh while he was in possession of a gun.

In June, the court struck out Roe in a 5-4 vote, but there was no official update on the status of the leak investigation until Thursday.

The leak, in addition to the backlash to the abortion ruling, has led to increased scrutiny over the inner workings of the court. Liberal justices have suggested that the court risks undermining its legitimacy by abruptly unraveling decades of precedent.

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