Nearly three months after a bombshell draft Supreme Court opinion over abortion rights was leaked to the media, the question of who was responsible remains an ongoing Washington summer mystery.
Chief Justice John Roberts has ordered the Court’s marshal to conduct an internal investigation, but there has been no official update, and no indication whether the probe is ongoing, ended or suspended.
But multiple sources tell Fox News the investigation into the approximately 70 individuals in the court who may have had access to the draft opinion has been narrowed. Sources say much of the initial focus was on the three dozen or so law clerks, who work directly with the justices on their caseload. Fox News had previously reported those law clerks were asked to turn over their cellphones and sign affidavits. It is unclear whether those clerks have all cooperated.
Supreme Court law clerks work on a one-year contract for individual justices, and their term typically ends in mid-July. Most of the law clerks have now presumably moved on to other jobs, and any future cooperation with them into the leak investigation was seen as problematic.
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Fox News has been told court Marshal Gail Curley has also asked several permanent court staff who may have had access to the draft opinion to turn over their cellphones and electronic devices.
But the key question of the leaker’s identity remains unknown, at least publicly. Also unanswered is whether any punishment or discipline will be forthcoming; whether outside federal law enforcement or private law or security firm has been hired to help; and what steps if any will be taken to prevent future such leaks.
The court’s public information officer Patricia McCabe offered a formal “no comment” when asked Friday by Fox News.
A day after the early May leak, Roberts announced the internal probe, which was not given a deadline or any publicly-released mandate.
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” the chief justice said in a rare public statement. “The work of the Court will not be affected in any way.”
It all comes amid ongoing, underlying tensions at the court. The building remains surrounded by high metal fencing, erected shortly after the May 3 leak of the draft obtained by Politico. That draft showed at least five conservative justices prepared at that time to strike down the nearly five-decade Roe v. Wade precedent and end the nationwide constitutional right to abortion. The final opinion issued June 24 did just that, causing enormous political, legal and social ripples, as states and Congress now grapple with revising and crafting legislation on access to the procedure.
The justices and their families are now under round-the-clock protection, and vocal protesters have shown up regularly at the homes of some justices. A California man has been charged with attempting to assassinate Justice Brett Kavanaugh, after being arrested near the justice’s Maryland home, armed with a handgun and after making threats.
Inside the court, the leak and ensuing final opinion in Dobbs v. Jackson Women’s Health Organization intensified the already strained dynamic among the nine justices, where a 6-3 conservative majority in the past two years has moved aggressively on hot-button issues like gun rights, immigration, religious liberty and executive power.
“Look where we are, where now — that trust or that belief is gone forever,” Justice Clarence Thomas said shortly after the leak became public. “When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity that you can explain… but you can’t undo it.”
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Thomas is not exaggerating. But several people close to the justices say the nine members hope the ongoing summer recess serves as a “cooling off” period after tensions in the last weeks and months of the past term made the unique workplace very difficult.
And there is the expectation the newest Justice Ketanji Brown Jackson will bring a fresh perspective and a new dynamic to the court — someone who like her mentor and predecessor Justice Stephen Breyer may be able to reach across the ideological aisle on many issues.
Jackson officially joined the court July 1, and has spent the past few weeks quietly moving into her chambers and hiring her small staff — including the four law clerks who will serve a vital supporting role — a sounding board for the myriad of cases big and small that will come her way.
Her colleagues — and the public at large — will watch to see how quickly the 51-year-old Jackson adjusts to a fractured court, and whether she will be the strong progressive voice President Biden and her supporters have promised.
Like last term, the court’s docket for its next term that begins in October is already filled with its share of divisive cases — affirmative action in college admissions, religious liberty and LGBTQ+ rights, immigration policy, and election redistricting.
For now, the conservative majority seems poised to advance its winning streak.
“I expect that continuation of where they’re going, they’re going to be controlled by a conservative majority,” said Thomas Dupree, a former top Justice Department official and now a leading appellate attorney.
“There’s not going to be a great ideological shift when you’re replacing one liberal vote with another liberal vote,” with the addition of Justice Jackson. “But at the same time, justices over history will tell you that any time you have a single member added to the court, given that it’s a nine-person body, it’s a new court. The interpersonal dynamics are different than negotiations behind the scenes are different, and you can never quite anticipate how that might ultimately play out. But at least for the foreseeable future, I think we’re going to continue to see the conservative majority controlling the outcomes in most of the big ticket cases,” Dupree said.
Justice Elena Kagan has expressed concern for how the public will perceive the court moving forward.
“I’m not talking about any particular decision or even any particular series of decisions, but if over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy,” Kagan said at a judicial conference in Montana last week. “Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kinds of things that do not seem to people political or partisan.”