The Supreme Court Speaks On The Big Dobbs Leak

My 6 observations about the SCOTUS leak investigation report.

The Supreme Court of the United States, July 2022 (photo by David Lat).

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Yesterday afternoon, the U.S. Supreme Court issued its eagerly awaited report on its investigation into last May’s historic leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and sent abortion back to the states. The bottom line: “investigators have been unable to determine at this time, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion in Dobbs.”

The Court actually provided us with three separate documents:

• a two-page, unsigned “Statement of the Court Concerning the Leak Investigation”;

• a one-page statement evaluating the investigation by Michael Chertoff, the former Third Circuit Judge and Secretary of Homeland Security who now leads The Chertoff Group, “an internationally recognized leader in security and risk management advisory services”; and

• a 20-page “Report of Findings & Recommendations” from the Marshal of the Supreme Court, Colonel Gail Curley, who led the investigation.

I’ve read these documents, more than once, as well as much of the commentary on them, from an ideologically diverse range of pundits. Here are my six key takeaways.

1.     It’s increasingly unlikely that the leaker will ever be uncovered.

The investigation is not yet officially closed. As noted in the report, “[i]nvestigators continue to review and process some electronic data that has been collected and a few other inquiries remain pending,” and “[t]o the extent that additional investigation yields new evidence or leads, the investigators will pursue them.”

But observers across the ideological spectrum, from Professor Melissa Murray of NYU Law to Dan McLaughlin of the National Review, agree that the leak investigation is, for all practical purposes, over—without having produced any real answers. In McLaughlin’s words, the Court “has essentially wrapped up the Dobbs-leak investigation, and… the leaker has gotten away with it.”

If the leaker was going to get caught, they were most likely to be caught in these first eight months since the leak of the draft Dobbs opinion to Politico. As in any investigation, the passage of time will only make things more difficult, as forensic evidence vanishes and memories fade.

I previously suggested that the leaker might come forward to take credit for what they did. And after the Democrats did better than expected in the midterm elections—aided in part by backlash against Dobbs, which the leak helped promote, at an earlier point in time than otherwise would have happened—I wondered whether the leaker might want to take a victory lap.

But now we know a possible reason why no victory lap was taken. According to Marshal Curley’s report, all Court employees who had access to the Dobbs draft signed sworn affidavits stating, in sum and substance, that (1) they didn’t leak the Dobbs draft and (2) they don’t know who did. So now the leaker, who might have escaped prosecution for the leak itself, ”would be subject to prosecution for a false statement in violation of 18 U.S.C. § 1001,” as the report pointedly mentions.

My guess, then, is that the leaker will keep their conduct a secret, for at least the five-year length of the § 1001 statute of limitations (assuming it doesn’t get extended, as advocated by Dan McLaughlin). This means that we might never find out the leaker’s identity, or find it out only decades later, à la Deep Throat of Watergate fame.

2.     The Supreme Court was surprisingly forthcoming and transparent about the leak investigation.

Maybe this is the soft bigotry of low expectations talking, but I was impressed by how much detail the Court gave us about the investigation and its results. I was expecting a statement along these lines:

At this time, Marshal Curley’s investigation has been unable to determine, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion in Dobbs.

If the investigation unearths additional, material information, a public statement will issue. Otherwise, this represents the final comment of the Court on this matter.

Instead, the Court provided us with three separate documents, totaling 23 pages, which contained a surprising amount of information about how the investigation was conducted and what it unearthed.

Now, some might say 23 pages isn’t much; as white-collar lawyers well know, reports on internal investigations can run into the hundreds of pages. But by the historical standards of SCOTUS, we actually got a fair amount. As Professor Orin Kerr put it, the documents released by the Court “describe the investigation in a lot more detail than you normally expect to get.”

It’s of a piece with how Chief Justice John Roberts acknowledged last May that the draft opinion posted by Politico was, in fact, an authentic draft. In an earlier era, maybe under the late Chief Justice William Rehnquist, we probably would have gotten a statement like this in response to the leak, neither confirming nor denying the draft’s authenticity: “The Court speaks through its duly issued opinions, and until it releases its final opinion in Dobbs v. Jackson Women’s Health Organization, the Court will have no comment.”

There are certainly legitimate criticisms that can be leveled against SCOTUS when it comes to transparency and accountability, and there are many things the Court could do to improve on these fronts. See, e.g., the many reform proposals of Fix the Court. But I would submit that the current Court—which livestreams oral arguments, has its members giving speeches left and right, and responds in real time to controversies like the Dobbs leak, “Maskgate,” and a clerk-hiring kerfuffle—is the most transparent and responsive Court in the years that I’ve been following it. (In fact, I’ve heard some argue the justices should quiet down a bit, by giving fewer speeches and writing fewer books, and start asking themselves, “WWSD”—”What Would Souter Do?”)

3.     The investigation appears to have been reasonably thorough.

As outlined in the report, here are some of the steps taken by Colonel Gail Curley, the Marshal of the Supreme Court, and her team of seasoned investigators:

• They “obtained forensic information from the Court’s IT systems,” in order to (a) determine if the leak was the result of a hack into the SCOTUS computer system, and (b) “to identify individuals of interest to the investigation, and to furnish the basis for questioning of employees.” (They found no evidence that the computer system was hacked into, leading them to conclude that the leak was unlikely to have resulted from a hack.)

• They used this forensic information, including event and print logs, to determine which Court employees had access to Dobbs drafts, in which form (hard copy or electronic), and to track how these drafts got disseminated. (Unfortunately, for various technical reasons, the logs were incomplete, which is a big part of why the investigation couldn’t be more conclusive.)

• They “collected Court-issued laptops and mobile devices from all personnel who had access to the draft opinion,” which they reviewed for leads, and they also reviewed the call and text logs for the personal devices of certain employees who voluntarily provided such records.

• They “conducted 126 formal interviews of 97 personnel…. All personnel agreed to be interviewed, and many were interviewed more than once.” They reviewed forensic evidence, including legal-research history, to maximize the effectiveness of these interviews.

• After these interviews, they asked employees to sign sworn affidavits denying that they leaked the Dobbs opinion or that they know who did. All employees completed these affidavits. (This is noteworthy because a few weeks after the leak, there were rumblings of clerk pushback against certain investigative steps, including the possibility of non-cooperation.)

• They “carefully evaluated the statements and conduct of personnel who displayed attributes associated with insider-threat behavior—violation of confidentiality rules, disgruntled attitude, claimed stress[], anger at the Court’s decision, etc.”—and they “also carefully evaluated whether personnel may have had reason to disclose the Court’s draft decision for strategic reasons.”

• They “looked closely into any connections between employees and reporters, especially “any contacts with anyone associated with Politico,” and they “assessed the wide array of public speculation, mostly on social media, about any individual who may have disclosed the document.” (In the end, “the investigators found nothing to substantiate any of the social media allegations.”)

Taken together, these steps strike me as constituting a solid and comprehensive investigation. Or as Orin Kerr put it, “this was a more thorough investigation than I expected, given the limited investigatory tools of the Marshal.”

To be sure, I’m not an expert in data security and internal investigations. But Michael Chertoff, the former Secretary of Homeland Security who now leads The Chertoff Group, is such an expert. In his one-page statement accompanying the Marshal’s report, Secretary Chertoff stated that “the Marshal and her experienced investigators undertook a thorough investigation within their legal authorities,” and “[a]t this time, I cannot identify any additional useful investigative measures.”

4.     The investigators should interview the justices and their household members, including spouses, if they haven’t done so already.

Actually, I can identify a few “additional useful investigative measures”: the nine justices themselves, as well as their spouses and other household members, should be subjected to the same scrutiny that Court employees were. They should be made to sit for the same interviews, sign the same affidavits, and provide the same forensic evidence to investigators—assuming they haven’t already done so.

I include the “assuming they haven’t already done so” qualifier because Marshal Curley’s report does not make clear what investigative steps, if any, were taken vis-a-vis the justices and their family or household members. The New York Times sought clarification on this point, but the Court did not respond. In the absence of clarification, I’m inclined to agree with commentators like Professor Josh Blackman and Chris Geidner that the report’s reference to questioning “permanent employees” does not include The Nine. (Yes, the life-tenured justices might be “permanent,” but they’re not exactly “employees.” Would you like fries with that per curiam?)

Why do I believe the justices and their household members should be investigated? For reasons I have previously explained, I do not believe the Dobbs draft was leaked by a justice, a justice’s spouse, or another household member. But many other commentators, primarily on the left—such as Dahlia Lithwick and Mark Joseph Stern of Slate, and my former colleague Joe Patrice of Above the Law—think it’s possible the opinion was leaked by a conservative justice or at such a justice’s direction.

To put such speculation to rest, I’d make the following recommendation: Colonel Curley and her team should investigate the justices and their household members, if they haven’t done so already. After that process is complete, the Court should release a supplemental statement, clarifying that the justices and their household members were interviewed and stating what, if anything, came of those interviews.

[UPDATE (8:25 p.m.): As I suggested, Marshal Curley released a supplemental statement, clarifying that she did interview the justices: “During the course of the investigation, I spoke with each of the Justices, several on multiple occasions. The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits.”]

An aside: I remain puzzled as to why commentators on the left want to pin this leak on someone from the right. I agree with Dan McLaughlin of the National Review:

The leak had real, foreseeable consequences: It triggered protests at the conservative justices’ homes and even an assassination attempt against Justice Brett Kavanaugh. It gave Michigan Democrats a head start in organizing and getting a proposition on abortion on the November ballot. The leak was roundly condemned by conservatives outside the Court and cheered by many progressives, a number of whom then publicly argued against clerks’ cooperating with the leak investigation. We still do not know who the leaker was, but cui bono? Certainly, everyone on all sides of the political commentariat acted as if they believed that this came from an opponent of the final outcome.¹

As I argued last May, there’s a strong case for folks on the left to view the leak as a good thing, in terms of how it spurred supporters of abortion rights to start preparing earlier for a world without Roe and galvanized Democratic voters ahead of the midterms. Or even if not a good thing, folks on the left can view the leak as “no big deal”—at least not compared to an activist, illegitimate Supreme Court taking a long-recognized constitutional right away from tens of millions of Americans, overturning decades of precedent in the process. In the words of Elie Mystal, over at The Nation:

The conservative justices, their media enablers, and the right-wing conspiracy-making machine worked itself into a tizzy over the leak—not, mind you, over the fact that the Supreme Court was poised to overturn 50 years of settled law and take away a constitutional right for the first time in American history, but over the breach of Supreme Court protocol….

From the start, the leak and the attendant pearl-clutching over it has been a giant distraction from the true level of corruption and bias emanating from the Supreme Court.

In contrast, it’s far more understandable for conservatives to be deeply upset over the leak and to want to blame it on someone on the left. To conservatives, the current Supreme Court and its decision in Dobbs still retain some legitimacy, so an egregious violation of the integrity of SCOTUS proceedings is still a serious offense.

5.     The repeated mentions of the “preponderance of the evidence” standard make me wonder: do the investigators have a hunch about the identity of the leaker, but feel unable to share it because it’s too speculative?

As lawyers well know, the standard under which something is evaluated is critical. A criminal defendant might get acquitted of murder under a “beyond a reasonable doubt” standard, but found liable for wrongful death under a “preponderance of the evidence” standard. A decision might get affirmed on appeal under an “abuse of discretion” standard, but reversed under a “de novo” standard.

So it’s worth noting that the Marshal’s report mentions, on three separate occasions, that it could not determine the identity of the leaker “using a preponderance of the evidence standard.” Enquiring minds want to know: do the investigators have an idea about the leaker’s identity under, say, a “probable cause” standard?

To the extent that the documents released yesterday hint at something, they seem to suggest a lefty as the leaker. Consider the first two sentences of the Court’s statement about the report: “In May 2022, this Court suffered one of the worst breaches of trust in its history: the leak of a draft opinion. The leak was no mere misguided attempt at protest.”

I disagree with other aspects of their analysis, but I agree with Professor Melissa Murray and Mark Joseph Stern that the “misguided attempt at protest” language obliquely fingers the left, by suggesting the leaker wanted to “protest” the Dobbs decision. Considering how pleased most conservatives were by Dobbs, any “protest” would have come from liberals or progressives.

6.     We need ‘Severance’ for SCOTUS clerks.

Have you watched Severance, the sci-fi, psychological-thriller series that came out on Apple TV+ last year? If not, you should; it’s very good, and it has a great premise:

A biotechnology corporation, Lumon Industries, uses a mindwipe medical procedure called “Severance” to separate the consciousness of their employees between their lives at work and outside of it. One severed employee, Mark (Adam Scott), gradually uncovers a web of conspiracy.

Each morning, before he descends into the subterranean offices of Lumon, Mark’s mind gets wiped of his life outside work; once inside, he has no idea of who he is outside the office. Then each evening, when he leaves the office, his mind gets wiped of his life at work; once outside, he has no idea of who he is inside the office, what type of work he performs, or anything else about Lumon.

You know what we need? “Severance” for SCOTUS clerks. Each morning, when they show up at One First Street for work, their minds get wiped of their personal lives. Each evening, when they leave the marble palace, their minds get wiped of everything that happened at the Court. Voilà—no more leaks!

Why would “Severance for SCOTUS Clerks” make sense? As noted in Colonel Curley’s report, even though the Law Clerk Code of Conduct states that the “temptation to discuss interesting pending or decided cases [with spouses] must be scrupulously resisted,” several law clerks “admitted [to investigators] to telling their spouses about the draft opinion or vote count” in Dobbs.

One can understand the difficult position these clerks were in. On the one hand, they were told not to discuss pending cases with their spouses. On the other hand, we’re talking about their spouses—their best friends, their soulmates, who maybe some of them see almost as extensions of themselves. Given human nature and the nature of the marital bond—which the law itself recognizes, in things like the spousal privilege in evidence—is it really realistic or fair to expect clerks not to talk to their spouses at all about what happened at work, for an entire year?

This is where we could use Severance. Given the lifelong benefits of a SCOTUS clerkship, I’m sure law clerks would willingly subject themselves to Severance for one year, as a condition of the clerkship. While Severance in the television series lasted indefinitely, Severance for SCOTUS Clerks would last only for the duration of the clerkship. In other words, at the end of the Term, the clerks would get their workplace or office memories back—because at the end of the Term, all the cases have been decided, and the consequences for a breach of confidentiality are dramatically lower.

If the Supreme Court can somehow invent a Severance procedure, I can imagine one other person besides the clerks who might be willing, or even eager, to undergo it: Chief Justice John Roberts.

His request? “Please remove any and all memories of May 2022.”

1. Yes, I get the “lock in” argument: release the draft to “lock in” any wavering votes. I have three responses.

First, as the oral argument in Dobbs suggested, and as the lack of any real edits to Justice Alito’s draft confirmed, the outcome of the case was never really in doubt. In particular, Justice Brett Kavanaugh, whom some suggested might be open to joining with the Chief to preserve Roe, didn’t sound eager to save Roe at oral argument, based on all his questions about the need sometimes to overturn precedent.

Second, please read my post Cui Bono? post, as well as Tom Goldstein’s SCOTUSblog post, from last May. The “lock in” goal was accomplished by a separate leak to the Wall Street Journal’s conservative editorial page, which preceded the leak of the full Dobbs draft to Politico (and I think it’s quite possible that, say, Ginni Thomas leaked to the Journal). Who had an incentive to leak the full draft? As Goldstein persuasively argued, “The question here is who believed they would benefit from leaking the opinion itself. That document was much more likely to rally liberals than conservatives. It brought home the fact that the court was poised to overrule Roe in much more concrete terms than merely leaking the vote. The opinion is also a full-throated attack on abortion rights and—with important caveats—substantive due process rights more broadly. And as a first draft—without the benefit of later refinement—it does not yet present the critique of Roe in its most persuasive form.”

Third, folks on the left have repeatedly criticized the quality and persuasiveness of Justice Alito’s opinion. If his Dobbs draft was so bad, wouldn’t leaking it be just as likely (or even more likely) to trigger rather than prevent a defection, as the outside world saw how bad it was, and commentators started piling on to criticize it (as many of them did)?

It’s time to whip out Occam's razor and stop overthinking this. The Dobbs draft was most likely leaked for the very obvious reasons I previously set forth back in May.

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