Supreme Court marshal digs in on Roe opinion leak

·6 min read
Jacquelyn Martin/AP Photo

The Supreme Court marshal’s probe into the disclosure of a draft opinion on Roe v. Wade is fully in progress, multiple people familiar with the proceedings told POLITICO, carrying out Chief Justice John Roberts’ order to investigate the leak.

But questions about the investigation’s scope and process — some emanating from inside the court, these people said — reveal internal frustrations that in recent days have burst out into the open.

Roberts ordered the internal investigation three weeks ago, launching a probe into how Justice Samuel Alito’s initial opinion was disclosed in an exclusive POLITICO report. The investigation is likely to confront a host of sensitive issues, including whether to ask or require law clerks, staff and even justices to make formal statements that could be used to bring charges if anyone lies.

It’s unclear if justices will allow their staff to be questioned by the team assembled by Marshal Gail Curley, or even be questioned themselves. Furthermore, the exact process or deadline for a completed review is still unknown.

In recent weeks, conservative-leaning justices have not only publicly deplored the leak, but also signaled an unusual degree of tension behind the scenes at the high court.

“I do think that what happened at the court is tremendously bad,” Justice Clarence Thomas, who gave Alito the pen on the draft opinion, declared during a discussion at a conference for Black conservatives in Dallas earlier this month. “I wonder how long we’re going to have these institutions at the rate we’re undermining them. And then I wonder when they’re gone or destabilized, what we will have as a country? And I don’t think the prospects are good if we continue to lose them.”

Thomas also seemed to criticize Roberts by saying the atmosphere at the court has deteriorated since the decade-plus of stability in the court’s membership which reigned from 1994 to 2005. The end of that period also happens to coincide with Roberts' confirmation as chief.

“This is not the court of that era,” Thomas said, adding: “We actually trusted each other. We may have been a dysfunctional family, but we were a family.”

Alito, also speaking this month, rebuffed a question about whether the justices felt comfortable these days getting a meal together. His sterile, non-committal response also omitted the usual caveats about how the justices manage to get along even if they disagree.

“The court right now, we had our conference this morning, we’re doing our work. We’re taking new cases, we’re headed toward the end of the term, which is always a frenetic time as we get our opinions out,” he said at the Antonin Scalia Law School at George Mason University, according to the Washington Post. “So, that’s where we are.”

Republicans on Capitol Hill are pressing for an aggressive investigation of the disclosure. “My focus is on finding the person who leaked it, making sure they’re investigated, held accountable and had their career, and everything involving [it], done,” Sen. Thom Tillis (R-N.C.) told reporters shortly after the revelation of the draft majority opinion May 2.

Senate Minority Leader Mitch McConnell went even further, calling on the Justice Department to “pursue criminal charges if applicable.”

A Supreme Court spokesperson didn't respond to a request for comment.

Attorney General Merrick Garland has declined to comment on whether his agency plans to get involved in the inquiry about the draft opinion’s disclosure, but the Justice Department has stressed that he has taken steps to safeguard the justices. Last week, Garland took part in a meeting with Supreme Court officials — including Curley — to discuss upgrades to the justices’ security, including 24-hour protection at their homes, a Justice Department statement said.

“The Justice Department will not tolerate violence or threats of violence against judges or any other public servants at work, home, or any other location,” Garland said in the statement.

A central question hanging over the investigation into the disclosure of the draft high court opinion is whether any laws were violated. Government leaks of non-classified information are typically not treated as criminal and would be unlikely to warrant the involvement of the Justice Department. Any decision on that score, however, would likely take time, leaving the initial stages of any investigation within the confines of the court.

Neil Siegel, a Duke University law professor and former clerk to Justice Ruth Bader Ginsburg, said the court is facing a difficult choice about which tactics to endorse in pursuit of the source of the disclosure — and risks further corrosion of the institution depending on how the investigation proceeds.

“There are potential ways to try to get to the truth," Siegel said. "But they’re not costless. It’s an unprecedented, deeply unfortunate, precarious situation.”

Other experts noted that some justices may recoil at having their law clerks questioned and that Roberts’ power to compel cooperation is murky given his position is often described as “first among equals."

“Justice so-and-so may not respond well to the chief upon learning their law clerks will be interrogated,” said Washington & Lee School of Law professor Todd Peppers, who studies the role of clerks at the high court. “They work for individual justices, so things could get a little itchy.”

Roberts, who has called the opinion disclosure a “betrayal” by “one bad apple,” is trying to reestablish faith in the court ahead of one of the most consequential decisions in decades. During a legal conference in Atlanta this month, Roberts denounced the release as “absolutely appalling,” but he also seemed to leave open the possibility that the draft opinion emerged through some means other than an intentional disclosure.

Should Alito’s draft majority opinion hold, the high court will overturn the 1973 Roe case that guaranteed federal constitutional protections of abortion rights and the 1992 Planned Parenthood v. Casey decision which reaffirmed them.

“We hold that Roe and Casey must be overruled,” Alito wrote in the draft majority opinion. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The justices are considering the issue of abortion rights in connection with Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law that would prohibit most abortions after 15 weeks of pregnancy. A federal appeals court blocked the statute for contravening Roe and Casey.

While the usually secretive Supreme Court has endured an increasing series of disclosures in recent years about its inner workings in high-profile cases, before this month no draft opinion had been made public while a case was pending.

Legal analysts and former prosecutors have questioned the court’s expertise to conduct an aggressive leak investigation, but the court has reportedly conducted similar inquiries in past decades, including into Time Magazine’s publication of details from the original Roe v. Wade decision hours before it was officially released and an ABC legal reporter’s advance revelations about the outcome of lower-profile cases in the late 1970s.