Where’s that Supreme Court leaker? Or are we just gonna nevermind that one?

August 3, 2022 6:00 am

Chief Justice John Roberts, pictured here presiding over the impeachment trial of President Donald Trump, said he was determined to find the leaker of the Dobbs decision. It’s unclear if it’s really happening. Photo by Getty Images.

To paraphrase an old saying: You can’t teach an old court new tricks.

The modified aphorism refers to the U. S. Supreme Court and its search for the culprit(s) who leaked a draft of the tribunal’s anti-abortion opinion six weeks before it was officially promulgated.

The justices responded with verbal aggression and extraordinary bellicosity in response to the May 2 leak in the case of Dobbs v. Jackson’s Women’s Health Organization, which accurately foretold the extinction of the constitutional right to abortion.

Chief Justice John Roberts, a partial dissenter in the case, lashed out at what he termed the most “singular and egregious breach of trust” in the court’s 233-year history and an “affront” to the justices and staff. Justice Clarence Thomas, the most senior justice and a de facto spokesman after decades of reticence, equated it to “infidelity” causing an irreparable diminution of trust.

The court’s apoplectic reaction raised concerns from a few observers, including in this publication, that the jurists were overreacting and hypocritical, more solicitous of their own privacy than that of American women, whose rights were eviscerated by their decision. They also seemed more concerned with their internal trust than the public’s growing distrust of the institution, as measured by public opinion polls. 

The unease extended to the uber-secrecy the court attaches to its deliberations, concealing as it does the decision-making process with a heavy cloak. The absence of transparency is inimical to accountability and extends well beyond the concealment often engaged in by the other branches of government.

Roberts followed up by directing an unprecedented internal investigation — replete with intimations of lie detector examinations — into the source(s) of the leak, presumed to be one of the 36 law clerks (four per justice) comprising about half of the tribunal’s 70-person support staff. Conventional wisdom was that the leak came either from an opponent of the ruling seeking to create pressure to modify it, or from a supporter of the draft wanting to publicize it to fend off potentially wavering justices from changing their minds.     

Now that nearly three months have passed, there are more questions than answers as to whether the inquiry is being doggedly pursued. Meanwhile, the court has retreated to its customary cloak of opacity.

When asked the other day about the status of the investigation; whether the FBI or other investigative agencies have been deployed; if any determinations have been made or any discipline imposed; the investigation timetable and other issues, the tribunal’s response to the Associated Press: “The Court has no comment.”

Thank you for your silent service!

Sphinx stinks

This Sphinx-like response is contrary to the public interest. Because such a high-profile fuss was made about the matter, the tribunal owes it to the public to disclose what is taking place. That public funds — taxpayer dollars — are being used for whatever inquiry is supposedly occurring adds — to borrow a word from Justice Sonia Sotomayor’s dissent in the Dobbs case — judicial “stench” from this entire episode.

Having had its veil of secrecy lifted, the high court is now having another clandestine curtain descend on public oversight.

It may well be that the investigation is a non-starter, diverted when some of the suspect clerks obtained lawyers. And now many have departed, replaced by a new crop of one-year judicial aides. 

Roberts and his cohorts may hope that the contretemps blow over, rather than engage an exacting inquiry that may force the court to expose more private matters about the institution and possibly force personnel to tell the truth or lie.

Let sleeping dogs lie — another aphorism — might be the tribunal’s ultimate response, given the public’s limited attention span equivalent to the life of a moth or shelf life of a carton of milk.

It’s unfortunate, but hardly surprising, that when it comes to its own accountability, the high court’s bark seems a lot worse than its bite.

 Or, as former President Bill Clinton might describe the tribunal’s purported investigation: “That dog won’t hunt.”

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.