ACCOUNTABILITY AT SCOTUS—NOT!

         On May 2, 2022, Politico published a draft of the Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, alerting the world that SCOTUS was about to overrule Roe v. Wadeand declare there was no federal constitutional right to abortion.  Immediately, there were illegal and frightening protests at the homes of Supreme Court justices.  A short time later, there was an assassination attempt on Brett Kavanaugh.

         The official opinion was finally released on June 22, 2022, revealing that the Politico draft had been stolen and leaked from somewhere inside the Court.

         Outrage followed.  All the justices (or most of them, anyway), were stunned that such a thing could happen in such a collegial place where everyone respected the traditions and values of the Court.  There would have to be an investigation!

         And did Chief Justice Roberts turn the matter over to the FBI?  Were all the law clerks and administrative people interrogated?  Were all their recent movements and contacts and phone records examined?  Were they given lie-detector tests?

         Uh…not exactly.

         Roberts turned the investigation over to Supreme Court Marshal Gail Curley, whose job it is to supervise security at the court building, make sure the doors are locked and ensure that demonstrators don’t get too unruly.  There is no indication she had ever conducted an investigation before, and certainly not one of this importance.  Nevertheless, the Chief Justice chose Curley.  He would probably have been better off picking Moe or Larry instead. 

         On January 19, 2023, the court issued a statement that “the Marshal’s team determined that no further investigation was warranted” for the 82 employees they had questioned who might have had access to the Dobbs draft.  The Marshal had conducted “formal interviews” with all of them.   They all denied leaking the opinion and they all signed sworn statements attesting they were not the source of the leak. 

         Formal interviews?  Did everyone wear neckties?  Does “formal” mean you weren’t allowed to wear a t-shirt and shorts?  And what about the sworn statements?  Did Curley make them do a pinky-swear or just a regular swear?

         And that was the end of it.  No one was held responsible for breaching the centuries-old tradition of confidentiality at the Supreme Court and nobody ever will be. *

         What is infuriating about this particular dropped ball (one hates to call it a “cover-up” without more evidence), is that everybody who works on legal opinions at the Supreme Court knows who did it.  There are nine justices, each of them have four law clerks, and there are another 35 to 40 people who handle communications with outside lawyers and have some access to information about opinions.  That means this little guild consists of only 80 to 85 people.  They all know each other, they eat lunch with each other, they talk to each other about cases, they play basketball with each other, and they invite each other to their homes for dinner.  Justice Alito said in a 2023 interview with the Wall Street Journal that he “has a pretty good idea” who did it.  Of course he does.  They all do.  But this is Washington and nobody can be held accountable.  It would be rude.  People might talk about the leaker.  He might have trouble getting a multi-million-dollar job in a premier law firm.

         And now, largely because Justice Roberts would not hold anyone‘s feet to the fire for the worst leak in SCOTUS history, it has happened again.   Only now it’s worse.  Since everyone knows that a breach of confidentiality will not be punished, the leakers have multiplied.

         Two days ago, the New York Times published confidential memos the justices had sent to each other in 2016 concerning an Order from SCOTUS summarily halting Barack Obama’s climate change edict near the end of his presidency.  These  memos form the foundation of the arguments about the “Shadow Docket” the Court now uses to quickly reverse extra-legal orders of partisan District Court judges who rule that Trump policies be stopped immediately.  Allowing the orders of these rogue judges to stand would mean many months of delay before the appeal system could operate and a final ruling be issued by SCOTUS.

         It’s a completely partisan matter, of course.  The leftists on the Court knew Obama’s Order would have irrevocably changed US environmental policy before it could be legally overturned as being beyond his authority, and that was fine with them.  They wanted Obama to rule unchecked.  Now, however, they want illegal orders of District Court judges to remain in effect as long as possible and cripple Trump’s power to govern.

         That is why these leaks occurred.  The NYT and the leftists who work at the SCOTUS disapprove of the Shadow Docket and how it is being used to allow a fair hearing for Trump Administration policies, so they have stolen these documents and are trying use them as part of an “exposé” of the Court’s supposed deference to Trump.

         Good luck to them.  The problem of what should be done about illegal edicts by rogue judges or rogue executives will continue to be debated.  My point here is a different one---that the tradition of confidentiality and respect for the legal process has now disappeared because John Roberts didn’t care about it.

         Regarding the confidential memos from 2016, the NYT writes:

         “To better understand what happened next, the Times spoke to 10 people…who were familiar with the deliberations over the pivotal emergency order and who spoke on condition of anonymity because confidentiality was a condition of their employment.” (Emphasis added.)

         Ten people?  They didn’t ask twenty?  It is believed the Dobbs decision was stolen by a single person.  Now apparently, everybody will talk to you, at least if you are the New York Times.  It appears they can call up anybody at the Court and find out what Justice Alito said to Justice Thomas in the men’s room that morning.

         And it’s all because Justice Roberts didn’t bother to investigation the Dobbs leak. 

Copyright2026MichaelKubacki   

         

*I don’t think there is much doubt the leak of the Dobbs opinion was a crime, though that legal question may be arguable.  What is NOT arguable is that lying in the sworn statement denying responsibility IS a crime under 18 U.S.C Section 1001.  (That’s the statute they used to put Martha Stewart away for two years.)