Judicial Notice (05.07.22): Cui Bono?

My speculation on Leakgate—and other legal news from the week that was.

Justice Samuel A. Alito Jr., testifying before the House Appropriations Committee in 2019 (photo by Chip Somodevilla via Getty Images).

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I spent this week the same way many of you did: reading practically everything out there about Monday night’s shocking leak of the initial draft majority opinion in Dobbs v. Jackson Women’s Health Organization, the legal challenge to a Mississippi statute prohibiting most abortions after the fifteenth week of pregnancy. The draft opinion by Justice Samuel Alito would overrule Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), sending the issue of abortion back to the states.

As emphasized by the Supreme Court in its Tuesday morning statement about the leak and by both pro-choice and pro-life groups on Twitter, the draft opinion does not represent the decision of the Court or even the final position of any justice. We simply don’t know what SCOTUS will decide in Dobbs, and we won’t know until the Court releases its final decision. This is why, despite the obvious importance of the issues in Dobbs, I have decided to focus more on discussing the leak than on the “decision”—because a draft opinion from February, surely superseded by later drafts and possibly no longer the majority opinion, is no decision at all.

Like every other legal commentator, I have some speculation about Leakgate. If speculation is not your cup of tea and you’d rather wait for actual facts, then you should skip this part of this week’s Judicial Notice.

Lawyer of the Week: Col. Gail A. Curley.

Oyez, oyez, oyez! All persons who are not familiar with the Marshal of the United States Supreme Court are admonished to draw near and give their attention!

Until this week, the role of Marshal was rather obscure. As provided for by 28 U.S.C. § 672, the Marshal handles administrative duties at the Court such as paying the salaries of the justices and SCOTUS employees, dealing with outside contractors, and overseeing the Supreme Court Police. Opening each session of the Court with the customary cry of “oyez, oyez, oyez” was the Marshal’s most well-known responsibility.

Until now. As Chief Justice John Roberts announced on Tuesday, he has asked the current Marshal, Colonel Gail Curley, “to launch an investigation into the source of the leak.” Since then, Colonel Curley—the 11th Marshal of the Court and the second woman to hold the position, after her predecessor, Pamela Talkin—has been the subject of extensive media coverage.

What to make of the Chief giving this assignment to Colonel Curley? As I said to C. Ryan Barber of Insider, it suggests that the Court is “treating [the leak] like an ethical and employment issue” and an “internal matter,” as opposed to the subject of a criminal investigation. And this makes sense.

First, the Chief jealously guards the independence of the judiciary, as reflected in his opposition to efforts to make the judiciary more susceptible to supervision from other branches on issues like workplace misconduct and financial disclosures. As noted by Barbara McQuade, the former U.S. attorney turned MSNBC columnist, he surely doesn’t relish the possibility of FBI agents and Justice Department prosecutors rooting through SCOTUS computers and interrogating clerks—and even justices—under penalty of perjury.

Second, despite many calls for the leak to be investigated as a crime, legal experts harbor doubts about how the conduct might be criminal, assuming the leaker had legitimate access to the document (e.g., didn’t hack anyone’s computer—and right now we have no indication of hacking).¹ This explains why, per Pete Williams of NBC News, “Administration officials said the Justice Department’s view, at this early stage, is that the leak did not constitute a federal crime.”

Colonel Curley, a West Point graduate with a law degree from the University of Illinois College of Law and two master’s degrees on top of that, has impressive credentials. Before joining the Court, she supervised a team of Army judges and lawyers in the Office of the Judge Advocate General for the U.S. Army, and she also served as the staff judge advocate for the Army in Germany from 2016 to 2019. Although Colonel Curley is not normally tasked with conducting investigations, I think there’s a decent chance that she can figure out the identity of the leaker, especially if she can access forensic tools and other resources from outside the Court as needed.

What might her investigation unearth? Here’s my speculation—which I emphasize, once again, is mere speculation.

As Tom Goldstein reminded us in this excellent SCOTUSblog post, there were actually multiple leaks: a leak to the Wall Street Journal editorial board, which Goldstein believes came from a conservative, and two leaks to Politico, which he believes came from a liberal. He reached his conclusions on the ideological orientations of the leakers based on analyzing “cui bono” or “who benefits”—and I agree with both his conclusions and reasoning, which I urge you to read in full.

On the first leak, my guess is that it was done by a conservative to keep a majority or “hold five,” in SCOTUS parlance—maybe because a justice actually defected or was thinking of defecting, or maybe because the Chief just circulated a more moderate concurrence, one that wouldn’t overrule Roe and Casey outright, and conservatives feared a defection.

As noted by Professor Josh Blackman of the Volokh Conspiracy, there were eerily similar leaks to conservative outlets in NFIB v. Sebelius (2012) and Bostock v. Clayton County (2020). Given how these leaks to the right have spanned multiple Terms, my guess is that responsibility lies with a “repeat player,” as opposed to clerks passing through for a year. (One possible suspect: Justice Clarence Thomas’s wife, Ginni Thomas—who is very conservative, very well-connected in high-level, right-wing circles, and not as worried as many others about the consequences of leaking.)

On the second leak, I agree with Goldstein that it was likely a liberal, possibly acting in response to the WSJ leak. I part ways with Goldstein only in thinking that the leaker might be connected to Alexander Ward, the national security reporter who shared the byline on the Politico piece with legal-affairs reporter Josh Gerstein. Goldstein argues that there was no reason for Ward to be on the story “other than that the leaker communicated through him”; my theory is that Ward, who works with many leakers on the national-security beat, could have helped out Gerstein by advising on how to protect the leaker’s identity. So I still think it’s quite possible that the leaker has personal ties to Gerstein rather than Ward.

Of course, this is all guesswork, and whether Colonel Curley will succeed in her mission is uncertain. But as the lawyer tasked with this investigation of great importance and sensitivity, she’s an obvious pick for Lawyer of the Week.

In memoriam: