The SCOTUS leak investigation: Did they hire Inspector Clouseau?

February 3, 2023 7:00 am

Chief Justice John Roberts at the U.S. Capitol. Photo by Win McNamee/Getty Images

So, it ends “not with a bang but a whimper.”         

The memorable phrase of poet T. S. Eliot in “The Hollow Men” aptly describes the denouement of the much-ballyhooed investigation of the leak of the draft of the Supreme Court’s Dobbs decision.

The leak proved prescient because the final version, authored by Justice Samuel Alito seven weeks later, tracked the initial version almost verbatim, overruling the 49-year old precedent of Roe v. Wade and eliminating the constitutional right to abortion.

That resulted in a variety of legal and political developments making their way into the fall election cycle. Some of the reverberations and backlash are still being felt here in Minnesota, where the DFL-controlled Legislature is headed towards repeal of nearly all impediments of reproductive rights, while a number of restrictive states are adding to their proscriptions. 

Proclamations of perfidy accompanying the leak precipitated the investigation initiated by Chief Justice John Roberts. It was assigned to Marshal of the Supreme Court Gail Curly. Roberts led the charge in his lamentation of the “appalling” unauthorized dissemination of the Alito missive. Other justices, mainly in the conservative wing, weighed in with similar terminology, some even harsher, like Justice Clarence Thomas moaning about the “infidelity” of the leak, while some politicians urged severe professional and criminal sanctions against whomever was responsible.

Whodunnit? Who cares?

The investigation of nearly nine months — an unusually long gestation period — was stillborn. Inquiry concluded recently with issuance of a 20-page report by the marshal that they could not identify the malefactor, or group of them, by “a preponderance of the evidence” — a legal euphemism for “we don’t know whodunnit.” 

But they probably don’t care, either. 

It seemed like a product of an Inspector Clouseau inquiry; the court is the seller, hoping that the public will buy it.      

Despite the expressed apoplexy about the leak, Roberts did not truly seem intent on getting to the bottom of it. After all, a really intensive inquiry by trained, outside sleuths might have exposed some of the internal operations of the tribunal, which prides itself on opacity. 

The inquiry seemed to focus on the 36 law clerks, four each per justice.

But apart from asking for the cell phones of the law clerks, obtaining sworn denials of leakage by them and checking out their fingerprint tracks, the inquiry shied away from bolder steps such as lie detector tests and other aggressive tactics hinted at earlier but left on the table by the investigators. 

Even less vigorous steps apparently were eschewed, like interviewing the justices under oath or their spouses or partners or doing a deep dive into the technological devices of court personnel.

The rather lame undertaking resulted, not surprisingly, in an unsatisfying outcome. That may be what Roberts hoped for or expected, allowing them to put the troublesome matter behind them. 

But the inquiry offered some hypotheses of the source of the leak. In addition to casting shade on the coterie of clerks, the report speculated that it could have been due to the Dobbs draft being carelessly left in a spot of easy access for others, a speculative cop out by the court’s top cop. It also left open the possibility that the culprit(s) may still be uncovered at a future date if new evidence is developed. 

Don’t hold your breath. Waiting for that is like turning on the landing lights for Amelia Earhart.

The media, for its part, exhibited an equal lack of vigor. After breathless coverage of the leak, the mainstream media paid scant attention to the aftermath, reverting to lazily awaiting the insider’s report to do their job for them. That disinterest is not surprising given that leaks are a vital resource for journalists.

Meanwhile, some more perceptive commentators with less elevated podiums (including in these very pages) have pointed out that the leak was not as bad as portrayed. In fact, questions were raised whether the outrage over the leak masked a need for greater transparency on the part of the high court, noting that a number of courts actually issue draft opinions before they become final to allow the litigants and their lawyers to weigh-in on their preliminary views. Doing so can be beneficial, allowing greater scrutiny of the highly-secretive judicial process, enabling more input into the decision-making process. 

Even as Roberts shielded the leak investigation from public purview or inquiry, a credible claim emerged last fall that a prior anti-reproductive rights opinion in 2014 known as the Hobby Lobby case — Burwell v. Hobby Lobby Stores, Inc., — had been prematurely leaked, too. By none other than Alito.

The court, with alacrity, jumped on that matter; its investigation apparently consisted of  a letter from Alito’s lawyer denying the charge. Case closed!

It may well be that the high court really has no appetite for investigating itself, following the principle of “Don’t ask for something you don’t want — you might get it.” The justices, especially Roberts, may have figured that the matter would recede from public attention and — with a distractible media — they probably are right.

Shortly before the curtain descended on the inconclusive inquiry, an unsubstantiated rumor was floated attributing the the leak to an unnamed law clerk. 

That came as a leak.

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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.