If you haven’t been living under a rock, you’re surely aware that Politico released a leaked copy of Supreme Court Justice Samuel Alito’s written opinion in Dobbs v. Jackson Women’s Health Organization last Monday.
If The Supreme Court Doesn’t, The Public Will Move On From The Data Leak Without A Second Thought!!
The leak of Supreme Court Justice Alito’s draught opinion was a terrible betrayal of trust that caused the Court serious harm. The most crucial component of this incident, in the end, will be the final opinion and its implications for Roe v. Wade.
Whatever one thinks of the draught opinion’s merits, the leak jeopardizes the Court’s integrity and public confidence.
After the leak, Justice Roberts correctly described it as a betrayal and an affront to the Court in his statement. He also ordered the Court Marshal to conduct an internal investigation into the source of the leak.
Unfortunately, the Marshal’s office appears to be lacking in knowledge and expertise in this area. Colonel Gail Curley, the new Marshal, is an experienced Army officer and lawyer.
The Marshal serves “as the Court’s chief security officer, facilities administrator, and contracting executive, managing approximately 260 employees, including the Supreme Court Police Force, which provides security for the Justices, Court staff, visitors, the building, and surrounding grounds,” according to a Court press release announcing her appointment last year.
“During argument sessions, [the Marshal] would call the Supreme Court to order, preserving order and decorum.”
The Marshal’s office, on the other hand, does not conduct sensitive leak investigations. Furthermore, the Court appears to lack a cadre of seasoned investigators who often handle difficult inquiries.
While Chief Justice Roberts’ speech did not specify how the investigation will be handled, press reports claim that he has rejected recommendations that he seek investigative assistance from the DOJ or the FBI.
This is why, in a January 2022 op-ed in the Washington Post, I advocated that the federal judiciary required a permanent, experienced, professional internal investigative office—an inspector general.
Other institutions, such as the DOJ and the FBI, first disputed the necessity for an inspector general, as did the federal judiciary, but over time, these organizations came to understand the value of an inspector general to handle sensitive investigations.
The judiciary is no exception. Even the judiciary, with its emphasis on ethics and the rule of law, will undoubtedly meet issues.
Unfortunately, that major issue has arrived earlier than anticipated. And the Court is ill-equipped to deal with it.
Leak investigations, in particular, are notoriously tough to solve. As the acting inspector general of the Department of Defense and the inspector general of the Department of Justice, I oversaw them.
When we first learned of a breach, we were assured that the universe of persons who had access to the disclosed information was quite small—only a few people—and that the material had been carefully guarded. When we dug deeper, the number of persons who had access to the information grew rapidly.
It wasn’t just a few persons in the important meeting or those who had worked directly on the leaked document who made up the actual universe. Rather, a large number of persons have access to the leaked information or document, including extra coworkers, office personnel, computer administration staff, relatives and friends of those involved in the case, and even passers-by.
Furthermore, while we were able to determine how many people had access to a document and also had communication with the reporter in some cases, we were rarely able to prove that a specific contact with the reporter caused the leak.
Sufficient evidence to solve the leak was unlikely in the absence of an admission or a reckless leaker who left telltale indicators or used technology that could be inspected to transfer the document. It wasn’t impossible, but it was out of the ordinary. We’d often come up with speculations and guesses as to who had leaked the material, but no concrete evidence.
The Justice Department is naturally hesitant to issue subpoenas to reporters in order to probe their sources. Any reporter would probably refuse to comply with such a request. Most people would rather go to jail, possibly for a long period, than reveal the reporter’s source.