Investigators were unable to identify the culprit historical leak last year Draft Supreme Court decision to repeal abortion rights across the country, a bailiff said Thursday, although the hunt continues.
A report The U.S. Supreme Court Marshal's Office released details Thursday of how they conducted 126 interviews with 97 employees and reviewed computer and printer records to try to pinpoint who leaked Justice Samuel Alito's draft opinion to Dobbs v. Jackson Women's Health in Politico. News site published a document May 3, 2023 – more than six weeks before the court issued its final decision overturning Roe v. Wade.
“The leak was not simply a misguided attempt at protest. It was a serious attack on the judicial process,” the Supreme Court said in a statement Thursday, released along with the report. The judges stressed the need for secrecy during their deliberations, calling the leak an “extraordinary betrayal of trust.”
Immediately after the leak, Chief Justice John Roberts ordered the marshal's office, which is usually only charged with ensuring the safety of the judges and investigating the case, but ultimately the team returned empty-handed.
“At this time, given the preponderance of the standard of evidence, it is impossible to determine the identity of any person who may have disclosed the document or how the draft report came to Politico,” the report said. “No one has admitted to publicly disclosing the document, and none of the available forensic or other evidence has led to the identification of any individual as the source of the document.”
Investigators said their digital analysis led them to believe it was unlikely that the court's systems had been hacked by an outsider. “Investigators also cannot rule out the possibility that the draft report was accidentally or negligently disclosed—for example, left in a public place inside or outside a building,” the report added.
In addition to the court's nine judges, 82 employees had access to electronic or paper copies of the draft decision, the marshal said.
Marshall said the “investigation is focused on court employees – temporary (clerks) and permanent employees – who had or may have had access to the draft opinion.” Court officials did not immediately respond to questions about whether the judges themselves were among those “staff employees” or were removed from the investigation.
Thursday's report said the marshal's team “determined that further investigation into many” of those 82 employees was not necessary.
Any employees asked to hand over their personal cell phones for inspection did so so investigators could review call logs, text messages and bank statements, but nothing incriminating was found.
Court officials were also asked to sign affidavits swearing under penalty of perjury that they were not behind the leak. “Several of those interviewed admitted that they had told their spouses about the draft report or vote count, so they annotated their written statements with appropriate comments,” the report said.
Some electronic data still needs to be reviewed and some lines of investigation remain open, but for now the court appears more concerned with trying to prevent similar leaks from happening again.
To achieve this, the marshal made a number of proposals for security reform, including strictly limiting the number of employees with access to confidential documents.
In November The New York Times reported that former anti-abortion leader Reverend Rob Schenk written to the chief judge say he was told about the favorable outcome of the 2014 case on contraception and religious rights before its announcement.
The case also included a majority opinion written by Justice Alito, who the Times reported had lunch with Schenck's friends, one of whom then emailed him a day later to say she had learned “some interesting news” and to call her rather than email her to find out more.
Alito denied disclosing the 2014 opinion.
