The Supreme Court’s marshal on Jan. 20 said she interviewed all nine justices in her investigation into the leak of a draft opinion but opted against making the justices sign sworn affidavits attesting they were not behind the leak.
“During the course of the investigation, I spoke with each of the Justices, several on multiple occasions,” Gail Curley, the marshal, said in a statement.
“The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits,” she added.
Curley was unable to identify the culprit behind the leak, which resulted in the May 2022 publication of a draft opinion in Dobbs v. Jackson Women’s Health Organization, the Supreme Court revealed on Thursday.
The final ruling wasn’t issued until months later. It struck down Roe v. Wade, the previous Supreme Court ruling that had concluded access to abortion was a constitutional right.
Curley said in her report that she and her investigators interviewed 97 court employees, all of whom denied disclosing the opinion. But she had not specified whether any of the justices were interviewed.
“If a Court employee disclosed the draft opinion, that person brazenly violated a system that was built fundamentally on trust with limited safeguards to regulate and constrain access to very sensitive information,” Curley concluded.
Politico, which first published the draft ruling, said it “received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.”
Supreme Court investigators also examined the court’s information technology systems and determined it was “unlikely” that they were “improperly accessed by a person outside the Court.” The probe uncovered “no forensic evidence indicating who disclosed the draft opinion,” Curley said. “Despite these efforts, investigators have been unable to determine at this time, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion … or how the draft opinion was provided to Politico.”
Justices said in a joint statement that they would support Curley and her team as they pursue any new evidence or leads that come to light. They did not talk about being interviewed themselves.
Former Department of Homeland Security Secretary Michael Chertoff, who reviewed the report at the request of Chief Justice John Roberts, said investigators “undertook a thorough investigation within their legal authorities,” and that he reviewed interview transcripts and notes among other evidence. Chertoff described “a broad swath of employees” as being interviewed but did not mention the justices.
Roberts has called the leak a “betrayal” and the justices said that engaging in deliberations in secret was an essential part of how the court operates.
“To meet our obligations as judges, we accept submissions from parties and amici, we engage advocates at oral argument, and we publish explanations of our final decisions. All of this we do in the open. Along the way, though, it is essential that we deliberate with one another candidly and in confidence,” they said. “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. It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal deliberations.”
Curley advised implementing a number of changes, including establishing a universal policy on handling draft opinions.
Chertoff recommended restricting who has access to copies of sensitive documents and limiting access to sensitive information on mobile devices.
Curley said many of the changes are already underway.