Supreme Court could not discover who leaked opinion because it failed to ask

The remarkable leak of an initial draft majority opinion overturning Roe v. Wade will remain a mystery, according to the Supreme Court.

Eight months, 126 formal interviews, and a 23-page report later, the Supreme Court has failed to discover who leaked a draft of the court’s opinion overturning abortion rights but judging by what was released concerning the investigation, the justices themselves were not investigated or directly questioned about the leak.

A report released by the court Thursday is the apparent culmination of an investigation ordered by Chief Justice John Roberts one day after Politico first published a copy of the draft opinion in the monumental case, Dobbs v. Jackson Women’s Health Organization, on May 2.

At the time, Roberts called the leak an “egregious breach of trust.”

The leak touched off protests at justices’ homes and raised concerns about their security. And it came more than a month before the final opinion by Justice Samuel Alito was released and the court formally announced it was overturning Roe v. Wade.

Overturning Roe v. Wade was the first time the nation’s top court took away a right that had previously invested more power in the people and used its judicial power to restrict individual freedom to make choices free of government interference.

The leak, and the subsequent landmark decision to roll back abortion rights across the U.S., sent shockwaves across the country, prompting nationwide protests, triggering renewed threats aimed at the justices and upending the midterm elections.

While the court was unable to find the person behind the leak that rocked Washington, social media users questioned whether some of the more conservative justices were investigated in the inquiry. Some speculated that Alito leaked his own opinion, while others suggested that it was disclosed by Justice Clarence Thomas.

“They definitely did not interview the justice that leaked this,” journalist Sydney Bauer tweeted on Thursday.

“The justices themselves were not asked questions or investigated, per what I gather from the Marshal’s report,” said Chris Geidner, a longtime legal reporter, legal editor, and Supreme Court correspondent.

The Supreme Court of the United States has generally kept its secrets and has kept confidential its internal processes and deliberations. But the Court does occasionally leak, and it has leaked before about Roe v. Wade.

Its recorded history of leaks dates back to mid-19th century. Some leaks have commented on a decision after its release. Others have provided accounts of personal relationships/conflicts among the justices.

And, yes, some opinions have leaked before release.

Consider the 1852 case Pennsylvania v. Wheeling and Belmont Bridge Company. Ten days before the Court handed down its decision, the New York Tribune reported the outcome.

Two years later, the bridge case returned to the Court, and again the Tribune scooped the justices before they made their decision public. Later that year, the Tribune published a running account of the deliberations in Dred Scott.

Historians have speculated that these leaks came from Justice John McLean, who authored the first bridge opinion before dissenting in the second one, as well as Dred Scott.

More recently, in 1968, New York Times reporter Fred Graham wrote a story about Justice Fortas’s extrajudicial activities to support the Vietnam War, after a law clerk leaked the details to Graham.

The 1970s brought a wave of leaks. First, Justice Douglas in June 1972 wrote a memo to his colleagues about Roe v. Wade. Somehow, it reached the Washington Post, which published a story about the memo and the Court’s inner deliberations.

Then, Time magazine published a story about Roe v. Wade before the court announced it, reporting the outcome and the vote. Infuriated, Burger demanded a meeting with Time’s editors, chastising them for scooping the court.

The chief justice believed a law clerk was to blame, so he ordered all clerks not to speak to reporters. This resulted in what became known as the “20-second rule”: Any clerk caught talking to a reporter would be fired within 20 seconds.

In 1977, NPR penetrated the justices’ conference by reporting that they had voted 5-3 not to review the convictions of three defendants in the Watergate cover-up cases.