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Supreme Court leak investigation ends without leaker caught

Fence erected around the U.S. Supreme Court. (Army National Guard photo by Capt. Joe Legros)
January 26, 2023

An investigation into the leak of the Supreme Court’s decision overturning the landmark Roe v. Wade legal case concluded last week, but without a suspect being identified.

In June of 2022, the Supreme Court issued a 6-3 decision in the case of Dobbs v. Jackson Women’s Health Organization that effectively overturned Roe v. Wade, and allowed states to determine their own laws on abortions. On May 2, more than a month prior to issuing that decision, Politico obtained and reported on a content of a draft version of the ruling.

Within hours of the leaked ruling being published, protesters had gathered around the Supreme Court. In the weeks that followed, protests also sprung up around the homes of various Supreme Court Justices that had sided with overturning Roe v. Wade in the leaked document.

On May 3, the day after Politico published the leak, Chief Justice John Roberts ordered an investigation of the leak.

Even before the ruling in Dobbs v. Jackson Women’s Health Organization was official, a man was arrested near Justice Brett Kavanaugh’s home. That man confessed to authorities that he planned to kill specific Supreme Court justices.

On Jan. 19, the court published a 23-page report summarizing the conclusions investigators drew after seven and a half months of investigations. Investigators reportedly interviewed nearly 100 employees as part of the investigation, including “82 employees [who] had access to electronic or hard copies of the draft opinion.”

“At this time, based on a preponderance of the evidence standard, it is not possible to determine the identity of any individual who may have disclosed the document or how the draft opinion ended up with Politico,” the final report states. “No one confessed to publicly disclosing the document and none of the available forensic and other evidence provided a basis for identifying any individual as the source of the document.”

The report also raised the possibility that the leak could have been done through a hack or by sheer negligence.

“While investigators and the Court’s IT experts cannot absolutely rule out a hack, the evidence to date reveals no suggestion of improper outside access,” the report ads. “Investigators also cannot eliminate the possibility that the draft opinion was inadvertently or negligently disclosed – for example, by being left in a public space either inside or outside the building.”

In a statement, the Supreme Court itself described the leak as “one of the worst breaches of trust” in its history.

“It is essential that we deliberate with one another candidly and in confidence. That phase of the judicial process affords us an opportunity to hone initial thoughts, reconsider views, persuade one another, and work collaboratively to strengthen our collective judgment,” the court wrote. “It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal deliberations. For these reasons and others, the Court immediately and unanimously agreed that the extraordinary betrayal of trust that took place last May warranted a thorough investigation.”

While the investigation ended without a suspect, former Homeland Security Secretary Michael Chertoff provided some security recommendations as part of the investigation. Chertoff’s recommenations included restricting who has access to various documents and “utilizing information rights management (IRM) tools to better control how sensitive documents are used, edited and shared.”