Supreme Court Simply Can’t Figure Out Who Leaked the Abortion Opinion

Today the embattled institution known as the Supreme Court released a report on its investigation into the leaked draft of the opinion overturning Roe v. Wade. The report “concludes” that the court is “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.”

We used air quotes because this report is far from conclusive, as it appears the investigators did not question the nine justices themselves. Those justices include Sam Alito, who allegedly leaked a birth control opinion in 2014, and Clarence Thomas, whose wife Ginni is a conservative activist who tried to overturn the 2020 election of Joe Biden.

Legal journalist Chris Geidner highlighted that on page 3, the report says: “The investigation focused on Court personnel—temporary (law clerks) and permanent employees—who had or may have had access to the draft opinion during the period from the initial circulation until the publication by Politico.” Law clerks and other employees were even asked to hand over their cell phones, as described on page 13.

But on page 11, the investigators acknowledge that it wasn’t only employees who had access to sensitive documents, emphasis ours: “The investigators determined that in addition to the Justices, 82 employees had access to electronic or hard copies of the draft opinion.”

Jezebel contacted the court’s public information office for comment on whether or not the Justices were questioned during the investigation.

Sarah Lipton-Lubet, president of Take Back the Court, called it a “sham investigation” in a statement. She wrote:

“We should not lose sight of the irony of this probe: that the Court has lamented the violation of its own purported ‘right to privacy’ at the same time it dismantled this very same right for pregnant people across the country in order to rip away their access to abortion.

“At the same time, the question remains: were Justices Thomas and Alito, perhaps the most ethically dubious justices on the bench—who reportedly had extensive contact with outside anti-abortion forces prior to the Dobbs decision—interviewed? The report doesn’t say, and the Court must be asked. Given what we know about Alito and Thomas, if nobody talked to them directly, that seems like an admission by omission.”

In a “statement of the court” preceding the report, the Justices wrote, “It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal deliberations.” I’d argue that this court’s integrity depends on it not stripping rights away from millions of people simply because it now had the votes to do so, but, hey, I’m not a lawyer.