SCOTUS and the Dobbs Leak: The Non-investigation Investigation
Did you really think they wanted to find and announce the leaker?
To be clear, I am not expressly calling the investigation into the leaking of the Dobbs decision overturning Roe a sham. Then again … well, I will let you be the judge.
I will lay out some arguments, and you judge whether or not it appears that the investigation was in fact a non-investigation. I’ve already reached my conclusion.
Back when the leak happened, I myself reached a conclusion on the likely leaker. I wrote here on Medium, on May 4, 2022, a piece entitled “A Conservative Clerk Leaked That Supreme Court Opinion.” I stand by it. The only correction I would make is that my gaze has since settled more upon Ginni Thomas or an associate of hers being the most likely source of the leak, though that technically also lays it in the lap of Justice Thomas, too, right? Need I explain why? Someone with a hardcore anti-abortion viewpoint leaked that draft opinion in order to make sure it stayed locked in as drafted — overturning Roe — and did not get watered down. I stand by that view.
On January 19, 2023, SCOTUS issued a report of the findings of their internal investigation into the leak. In summary, they don’t know who leaked it. Or, another way to summarize the report is: golly shucks gee, dunno, oh well.
Ladies and gentlemen of the jury, let me make the case to you of how it is obvious when an investigation is not really an investigation.
It was not led by a professional investigator
Justice John Roberts handed this investigation to the Marshal of the Supreme Court. What is the job of the Marshal of the Court? She is in charge of building security as well as security for the justices. In other words, it would be like a museum having the Mona Lisa stolen and putting the security guard at the door in charge of the investigation as to whodunit. I cast no aspersions upon Gail Curley. However, she has no experience or training in conducting an investigation of this nature, or an investigation of any nature for that matter. She is a glorified police chief. Detectives are in charge of investigations, not police.
This is even worse, though. To extend the metaphor, the security guard investigating the theft of the painting has to interview the museum owner to see if he might be the culprit!
Ms. Curley is an employee of SCOTUS. Can you imagine the conversation? Can you seriously imagine that she went up to Justice Thomas and said, “Um, excuse me, sir. Sorry to bother you. I was just wondering if you violated confidentiality rules and shared the draft opinion with your wife, and did she then share it with Politico? Just asking. I’m really sorry to be taking up your time, sir. I was just wondering. Say, would you sign this affidavit now, sir, that you told me the truth? Under penalty of perjury? Thank you so much. Oh, is that a picture of your wife? She looks so lovely. I love that red dress!”
C’mon, man. All due respect to Ms. Curley, but she was in an impossible position, at least if you concede even the possibility that a wife of a justice leaked the opinion. She would have to investigate her bosses for crying out loud! No wonder the report she issued reads like a big pile of “well, nothing to see here.”
Why didn’t SCOTUS request that the FBI investigate the leak?
We are talking about the mishandling of government documents (heard that phrase before haven’t ya?). That means there is a potential crime here. The report issued by the Marshal says her team consisted of “trained federal investigators” but does not name names. Who exactly? Who did the IT investigation? Who did the forensics? You know, I hear the FBI has quite a stellar collection of professionals for investigating things.
The FBI also has what the Marshal of the Court did not have: subpoena power! The FBI could have subpoenaed phone carriers and internet providers to see who was talking to who at Politico! Yes, it is true on First Amendment grounds that one should really not go after Politico, and Politico has no obligation to cooperate here. However, within SCOTUS, somebody violated confidentiality rules, and that is fair game. The FBI could have done a real, true, and serious investigation, with possible criminal charges at the end of it.
Justice Alito, with great histrionics and melodrama, said that the Dobbs leak put the lives of the conservative justices at risk. He said to the Heritage Foundation that it made them “targets for assassination.” Really? Seriously? It is true that women can and do get very angry sometimes. You know, that whole “Hell hath no fury like …” thing. However, I do not recall seeing militias of left-wing women sporting assault rifles preaching the violent overthrow of the government and using violence when you don’t get the result you want. If I missed coverage of a left-wing pro-choice women’s militia, somebody reading this please direct me to a link showing those dangerous assault-rifle-toting monstrous women who would have taken aim at the Dobbs majority. Just out of curiosity. Myself, I am not so inclined, although I am most definitely, since Dobbs, in the “Hell hath no fury like …” camp.
My point is, though, that if Justice Alito actually did view this leak as a life-or-death matter, surely the first place you would turn would be the FBI? For something that serious?
Or was Alito just being a drama queen? I shrug at that question and will leave you to decide on that.
The big nothing-burger report itself
Although I am a busy person, I took the time to read the actual report issued by the Marshal of the Court.
First, there is a very peculiar (to my eyes) attachment to the report with “The Chertoff Group” letterhead written by Michael Chertoff. It is basically just this guy saying he reviewed the investigational effort and he says it was a thorough investigation. Uh-huh. Excuse me, but who the bleep are you?
The Chertoff Group, by the way, is:
… a global advisory services firm that applies security expertise, technology insights and policy intelligence to help clients build resilient organizations, gain competitive advantage and accelerate growth. Through its investment banking subsidiary Chertoff Capital, the firm provides M&A advisory services in global security markets and assists cyber and tech-enabled security companies raise capital to grow their enterprise.
Uh-huh. Whatever. Maybe I will venture down that rabbit hole some other day.
Anyway, I read the report so you don’t have to. The news media being what they are, and the fact there is nothing juicy or sexy in there, you are not likely to hear a lot of quotes from it. However, there were some things that jumped out at me and I want to quote a couple of them.
“…in the course of their interviews, several personnel acknowledged that they did not treat information relating to the draft opinion consistent with the Court’s confidentiality policies.”
Uh-huh. No kidding. Um, but isn’t that like a big waving red flag? Any leads there? Anything more to add to the report about that? Nope. No more to say about that.
It does say, however:
“Each employee was then asked to swear to the truth of the statements in the affidavit before a Notary Public. Each of these employees signed a sworn affidavit. A few of those interviewed admitted to telling their spouses about the draft opinion or vote count, so they annotated their affidavits to that effect.”
Really? How very interesting. Any follow-up investigation on that? Any more information you want to share with us? Oh well. Nothing to see here, I’m sure.
This paragraph I read twice, blinked, and raised an eyebrow …
“Investigators carefully evaluated the statements and conduct of personnel who displayed attributes associated with insider-threat behavior — violation of confidentiality rules, disgruntled attitude, claimed stressed, anger at the Court’s decision, etc. — and also weighed behavior and evidence that would tend to mitigate any adverse inferences. Investigators also carefully evaluated whether personnel may have had reason to disclose the Court’s draft decision for strategic reasons.”
And? Yes?
Nothing more to say about that.
Wow. The single most interesting thing to read in there, and … well, nothing more to say. Uh-huh.
The report then gives a list of recommendations. You know, a way to justify this nothing-burger waste of time is by making suggestions on how to improve things in the future.
I particularly liked recommendation #6:
“Many personnel appear not to have properly understood the Court’s policies on confidentiality. There should be more emphasis on training so that all personnel fully understand the policies.”
No kidding. Maybe there could be a little special training session for Clarence and Ginni and Alito and Martha.
So, why did SCOTUS not want a real investigation?
Do you really think that SCOTUS wanted a public announcement identifying who leaked the decision? Their approval rating is the lowest it has ever been, and it only has one direction to go and that is lower still. There has also, obviously, been internal damage. Relationships between justices must be fraying. Justice Roberts is Chief Justice in name only, with obviously little ability to influence anything. He couldn’t even convince his fellow conservative justices that overturning a five decades-long precedent in Roe would permanently damage the esteem of the court … not to mention set a bad precedent.
SCOTUS is thoroughly dysfunctional now, thanks in no small part to three Trump appointees. Why would you expect a dysfunctional institution to embark on a functional in-house investigation?
Just how stupid do they think the American public is?
Well, that answer is obvious. A majority of SCOTUS certainly feels that women are too stupid to be trusted with bodily autonomy. Women were stupid to have been confident that SCOTUS would always protect us. The conservative justices live in a bubble of supreme self-confidence. They have confidence in their own genius, their own worthiness, and their supreme wisdom.
As Hannah Gadsby, the Australian comedian, observed about Americans: “Your confidence is what makes you stupid.”
So, in the face of so much stupidity already established, why would anyone be stupid enough to believe the Marshal’s report was even worth the paper it was printed on? It was probably printed on a dot matrix printer. Or actually, maybe it was printed on an antique typewriter. After all, SCOTUS is so very dedicated to turning back the clock.
Rest assured, in future opinions, they will be turning the clock back some more. We don’t need opinions to be leaked to know that in advance.
