Chief Justice John Roberts announced an investigation back in May into who exactly leaked an initial draft of the U.S. Supreme Court’s ruling in Dobbs v. Jackson, which ended national forced abortion access.
Still, three months later, the American public has not received any significant update on the progress of that investigation or what has been uncovered thus far.
In his statement announcing the investigation, Roberts condemned the leak, proclaiming that to “the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed.”
Former clerks told CNN that the number of potential suspects for the leak was 75, comprised of both permanent court staff as well as law clerks who cycle through each term before beginning their legal careers.
“We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law,” Roberts continued. “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”
Roberts concluded his statement by putting the Marshal of the Court, Gail Curley, in charge of the investigation. The Marshal serves as head of the U.S. Supreme Court Police, answerable only to the Court itself.
For longtime observers of the high court, Roberts’ decision to keep the investigation wholly housed within his branch of government is no surprise. Roberts has been outspoken about his concern about the Supreme Court’s public perception and threats to its legitimacy as a co-equal branch of the federal government.
According to the Associated Press, which recently reached out to the Court for an update on this investigation, the Court “won’t say whether it’s still investigating, … whether the leaker has been identified or whether anyone has been disciplined, … whether an outside law firm or the FBI has been called in, … whether the court will ever offer an accounting of what transpired, and what steps are in place to prevent a repeat incident.”
Even for an institution well known for its secrecy, the current trajectory of the Dobbs leak investigation has created concern.
“Does the chief justice, so attuned to public opinion about the court, think the probe can be cast as some kind of internal matter to be handled privately, and made to fade into the ether?” wrote Benjamin Weingarten in a recent opinion piece. “Do the findings implicate one or several justices, and as such, is the chief justice unsure how to proceed with the public?”
With the current Supreme Court term having recently ended, only the permanent court staff remain easily in reach of the Marshal for her investigation, assuming it continues. All of the term’s law clerks have moved on.
If history is any indicator, many of these law clerks may end up serving on a federal bench themselves or in other prominent jobs within the federal government that require Senate confirmation someday.
In fact, six of the nine current Supreme Court justices were former law clerks themselves.
And if the American public still does not have the answers they deserve, Mark Sherman of the AP posited, “Sometime in the next few decades, one or more of [these law clerks] might appear for a confirmation hearing for a judgeship or some other high-ranking government job where they might be asked if they leaked the document or know who did.”
Lying during a confirmation hearing is considered perjury and is punishable by law.