Press: Dobbs: It’s about the decision, not the leak

The Supreme Court’s report on its investigation into the leaked Dobbs v. Jackson Women’s Health Organization decision set two records. It was the most anticipated government report since Ken Starr’s prurient musings on former President Clinton and Monica Lewinsky. But it was also the most disappointing report since Robert Mueller failed to drop the hammer on former President Trump.

On May 2, 2022, in what’s been called the worst breach of confidentiality in the history of the court, Politico published the entire draft opinion written by Justice Samuel Alito in the case of Dobbs v. Jackson Women’s Health Organization. The very next day, Chief Justice John Roberts, denouncing what he called “an egregious breach of trust,” ordered Gail Curley, marshal of the court, to find out who leaked the document.

Last week, Curley wrapped up her investigation empty-handed. After eight months and 126 formal interviews of 97 employees, she was forced to admit she still had no idea who leaked the document and probably never would. The investigation was a total waste of time, and the report was a total bust. Which should have come as no surprise.

Curley’s investigation broke every rule in the books. Rule No. 1, government agencies should never be trusted to investigate themselves. There are too many bureaucratic conflicts an inside investigator can’t overcome. Rule No. 2, treat everybody equally. Curley admits she subjected 97 court employees to the third degree: intense, often repeated, interrogations; sworn affidavits; threats of losing their jobs.

The justices themselves, meanwhile, were treated with kid gloves: engaged in “conversation” with investigators, where they could ask as many questions as they were asked, but were not asked to sign sworn affidavits. And, reportedly, there was no interrogation of spouses of justices, even though Martha-Ann Alito was previously accused by former anti-abortion activist Rev. Rob Schenck of leaking the Burwell v. Hobby Lobby decision and Ginni Thomas is a prominent conservative political activist. Is there any doubt that either of them knew ahead of time  that the court would overturn Roe v. Wade?

Rule No. 3 — keep secret documents secret — had already been violated by the court’s internal procedures. A source close to the investigation told me there were 82 printed copies of Alito’s draft decision in circulation for review within the court. At that rate, it’s no surprise Politico got their hands on a copy. It’s surprising not every court reporter in Washington scored one.

No sooner was the report released than the Supreme Court’s own investigation was condemned by both liberal and conservative legal scholars as woefully inadequate. And rightfully so. But, as we say in journalism, that buries the lede.

What’s most wrong about the Dobbs controversy is not the court’s bungled investigation into who leaked the decision in advance — it’s the court’s final opinion.

We may never know who leaked the draft decision, but we know who voted for its final version: Chief Justice Roberts and Justices Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. And we know what that decision does: It overturns 50 years of established law recognizing the constitutional right to abortion. It gives state legislatures, not women themselves, the right to control a woman’s body. And, in so doing, it makes every American woman a second-class citizen.

Chief Justice Roberts launched an investigation of the leak in the Dobbs case to restore the reputation of the court. Ironically, it’s had the opposite effect. The reputation of the nation’s court is now only further tarnished — by the Dobbs leak, yes, but most of all by the Dobbs decision itself.

Press is host of “The Bill Press Pod.” He is the author of “From the Left: A Life in the Crossfire.”