02-02-2023
In May 2022, Politico published a draft opinion of the U.S. Supreme Court's decision in Dobbs v. Jackson Women’s Health Organization on its website. It was the first known leak of a Supreme Court opinion. Chief Justice John Roberts vowed to investigate and find the culprits. In January 2023, the court released the results of its investigation: it found nothing. The court marshal's office revealed it had interviewed 97 workers. The report did not indicate whether investigators interviewed any of the justices or their families. Faced with the initial backlash to the lack of equal scrutiny applied to the justices, the court released a second statement asserting the marshal had spoken to the justices, just on vastly different terms than the rest of the employees.
According to the New York Times, the marshal's office "formally interrogated, recorded, and pressed" employees to sign affidavits denying any involvement. They warned these employees to answer the questions fully or lose their jobs. However, with the justices, the marshall engaged in an "iterative process" where the justices asked and answered questions without providing affidavits. Outside individuals with experience in government investigations told the New York Times that failing to scrutinize the justices "just completely undermines the court's credibility" as it "sends a message of superiority that does not exist under the eyes of the law."
Interviews with employees reflected a growing divide between staffers working with conservative and liberal judges. Law clerks work under a written code that requires “complete loyalty” to the justices they individually serve. A rift between a law clerk and their justice “could have immediate and lasting implications” on their relationships with the court and future careers. Investigators asked the law clerks broad questions and requested their personal devices. Some law clerks sought legal counsel and may have handed over limited information from their devices. At this point, with some law clerks termed out and others taking their place, it seems unlikely the court will ever discover who and why someone leaked the decision.