A Supreme Disgrace at the High Court | Opinion

Last spring, the American system of government suffered a grievous blow when someone leaked the draft Supreme Court opinion that would ultimately prevail in Dobbs v. Jackson Women's Health Organization, overturning the infamous Roe v. Wade abortion precedent.

The brazen act threatened the internal deliberative process on which the Court relies for its day-to-day functioning and spurred illegal protests outside the homes of justices. Those protests attempted to cow the justices into deciding Dobbs the way the pro-abortion mob wanted, culminating in an assassination plot against Justice Brett Kavanaugh. The damage done to the Court as an institution was incalculable, and perhaps irrevocable.

At the time, Chief Justice John Roberts called the leak a "singular and egregious breach" and a "betrayal of the confidences of the Court," and ordered an investigation into its provenance.

As the weeks passed with no update on the Dobbs leaker to speak of, I was highly critical of the Court, dumbfounded by its selection of the Court's marshal to lead the investigation, and skeptical of the probe's thoroughness. If the breach of the Court was as egregious as the the chief justice stated, why wouldn't he put an authority with commensurate experience and capability on the case?

Over eight months after the leak, the verdict is in, and our concerns have been more than vindicated.

The Supreme Court found no leaker, concluding in an unsigned statement that after interviewing almost 100 employees, 82 of whom accessed the opinion, the marshal's team was "unable to identify a person responsible by a preponderance of the evidence."

The marshal's appending report contained some remarkable qualifying language about its effort—for example, noting that "technical limitations in the Court's computer record-keeping at the time made it impossible to rule out...entirely" the possibility that a Court employee could have emailed the opinion to a non-employee.

What's more: "The investigators did not find any logs or IT artifacts indicating that the draft opinion was downloaded to removable media, but it is impossible to rule out."

"Impossible to rule out" is not good enough. Certainly, the American people should not accept it.

The marshal's report also said this: "The pandemic and resulting expansion of the ability to work from home...created an environment where it was too easy to remove sensitive information from the building and the Court's IT networks."

Yet another unacceptable alibi—effectively, "the pandemic ate our homework."

But the most unacceptable part of the marshal's report is that it didn't specify whether the Supreme Court justices themselves were interviewed.

Amid a firestorm over that omission, the marshal hastily issued a separate press release detailing that she had indeed spoken to each justice—some multiple times. She added: "The justices actively cooperated in this iterative process, asking questions and answering mine."

United States Supreme Court justices ought to be treated with all due respect, but what is this oddly deferential "iterative process?" All the justices very clearly had the means, and it is quite possible that one (or more) had the requisite motive, to leak the draft opinion or direct a law clerk or some other staffer to do so on his/her implicit behalf.

Police officers stand in front of the
Police officers stand in front of the U.S. Supreme Court during the 50th annual March for Life rally on January 20, 2023 in Washington, D.C. Anna Moneymaker/Getty Images

We must treat the world as it is, not as we wish it to be. Certainly, an investigator must do so, and particularly on a matter of such national importance.

Yet the marshal concluded that "credible leads" did not "implicate[] the justices or their spouses." She added: "On this basis, I did not believe that it was necessary to ask the justices to sign sworn affidavits."

In other words, the marshal admitted that she pre-judged the outcome of the probe, exculpating the justices and thus undermining the probe's very legitimacy.

Consequently, even liberal columnist and editor Ruth Marcus of The Washington Post couldn't help but raise some glaring questions, such as:

  • Did investigators subject the justices to the same "formal interviews" as the 126 given to some 97 Court employees?
  • Did investigators examine the available legal research history of the justices—as they did for other employees—to assess whether the justices themselves had inquired into the legality of leaking?
  • Did investigators collect the justices' Court-issued laptops and phones, and look into related records to deduce whether they might have been involved with the leak—as investigators did with other Court employees?

The double standard is staggering.

For the cherry on top, the Court got a former Department of Homeland Security secretary who had once intimated that the Hunter Biden laptop was likely Russian disinformation to rubber-stamp the probe.

The system protects its own.

We are left to deal with the reality that no one has paid any price whatsoever for doing incalculable damage to the Court and igniting a firestorm that almost resulted in the assassination of a Supreme Court justice.

The only way for the Court to have restored any semblance of order would have been to deputize federal law enforcement to go to the end of the Earth, using every available means to find the leaker, bring him/her to swift and overwhelming justice, and do so publicly as a deterrent to any such future malfeasance—on top of implementing the strictest protocols and making such leaks illegal, with massive penalties to stop would-be leakers from even thinking about doing so again.

Though perhaps the fix would have been in should such a law enforcement body have been involved in such a case, it is implausible that if the FBI had been assigned the case and pursued it as zealously as it has nonviolent January 6 defendants, we wouldn't know now who the leaker was. Indeed, we likely would have known months ago.

But the Court did not do that here.

In fact, if you were deliberately trying NOT to figure out who the leaker was, while giving off the veneer of caring, what would you do differently than what Chief Justice Roberts did here?

Ironically, the chief justice, who claims to care most about protecting the institution of the Court—a justification for siding with its liberal justices on the most contentious issues no matter how tortured the reasoning, or advocating for unjustifiably narrow and "incremental" rulings when siding at all closely with the Court's conservatives, prioritizing the optics and politics over the legal merits all the while—has now further undermined the institution with this failed probe.

We do not know if this indefensible failure comes from a lack of will or a lack of capability; whether it is rooted in incompetence, corruption, or perhaps both.

Either way, it's a Supreme disgrace.

Ben Weingarten is deputy editor for RealClearInvestigations. He also contributes to The Federalist, the New York Post, The Epoch Times, and other publications. Subscribe to his newsletter at weingarten.substack.com, and follow him on Twitter: @bhweingarten.

The views expressed in this article are the writer's own.