Fingers point this way and that as the Supreme Court flounders over abortion draft leak

After a lengthy investigation, no one is fessing up to leaking early information on last summer's Roe reversal

By Kelly McClure

Nights & Weekends Editor

Published January 19, 2023 6:18PM (EST)

US Supreme Court Associate Justices Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, Samuel Alito and Clarence Thomas. (Photo illustration by Salon/Erin Schaff-Pool/Getty Images)
US Supreme Court Associate Justices Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, Samuel Alito and Clarence Thomas. (Photo illustration by Salon/Erin Schaff-Pool/Getty Images)

In May of 2022, a draft of the Supreme Court decision in Dobbs v. Jackson Women's Health Organization leaked, letting the public know that abortion rights as they were previously known were about to be a thing of the past. 

As made clear in that draft, written by Justice Alito, it was specified that they'd determined it was "time to heed the Constitution and return the issue of abortion to the people's elected representatives," effectively overturning Roe v. Wade. Split debates over the pending ruling broke out in the news cycle after the leaked document was published by Politico, quickly followed by finger pointing over who could have been responsible for leaking it. After a lengthy investigation, the Supreme Court still doesn't know. 

In a report published on Thursday stating that "the leak was no mere misguided attempt at protest," Michael Chertoff, former Secretary of Homeland Security, Judge of the U. S. Court of Appeals for the Third Circuit, Assistant Attorney General for the Criminal Division of the U. S. Department of Justice, and U. S. Attorney for the District of New Jersey provided a statement on his aiding in the investigation saying the following:

"My review assessed that the Marshal and her experienced investigators undertook a thorough investigation within their legal authorities, and while there is not sufficient evidence at present for prosecution or other legal action, there were important insights gleaned from the investigation that can be acted upon to avoid future incidents." 

From here, Chertoff details an action plan that would include "restricting the distribution of hard copy versions of sensitive documents," and "limiting the access of sensitive information on outside mobile devices." But the varied responses to this report seem to agree that plans for the future don't do much to erase errors of the past.

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Supreme Court Marshal Gail Curley, head of the investigation, revealed information we've obtained from NBC on Thursday highlighting that "97 court employees were interviewed and all denied being the leaker."

"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 added.

Responding to the investigation's dead end, Trump weighed in via Truth Social with an action plan of his own saying "The Supreme Court has just announced it is not able to find out, even with the help of our "crack" FBI, who the leaker was on the R v Wade scandal. They'll never find out, & it's important that they do. So, go to the reporter & ask him/her who it was. If not given the answer, put whoever in jail until the answer is given. You might add the publisher and editor to the list. Stop playing games, this leaking cannot be allowed to happen. It won't take long before the name of this slime is revealed!"

In the hours following the Supreme Court's update on the investigation, others like Elie Mystal, Justice Correspondent for The Nation, added their own views on the matter.

"I told everybody, from the very beginning, that if the Dobbs leaker turned out to be a Republican, the Supreme Court would somehow never find who did it," Mystal said on Twitter. "Welp, the report's out and, what do you know, they don't know who did it."

"The Supreme Court is supremely broken," NY Congressman Ritchie Torres said via his own social account. "SCOTUS cannot find the source of the leak in the Dobbs case. Clarence Thomas refuses to recuse himself from cases implicating Ginni Thomas. Brett Kavanaugh parties with George Santos + Matt Schlapp. SCOTUS has no code of ethics."

By Kelly McClure

Kelly McClure is Salon's Nights and Weekends Editor covering daily news, politics and culture. Her work has been featured in Vulture, The A.V. Club, Vanity Fair, Cosmopolitan, Nylon, Vice, and elsewhere. She is the author of Something is Always Happening Somewhere.

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Abortion Aggregate Roe V. Wade Supreme Court