WASHINGTON — The Supreme Court on Thursday announced that it has been unable to identify the person who leaked an unpublished draft of an opinion indicating the court was poised to roll back abortion rights.
In an unsigned statement, the court said that all leads had been followed up and forensic analysis performed, but “the team has to date been unable to identify a person responsible by a preponderance of the evidence.”
But the attached report suggested the court was not watertight, with some employees admitting they had talked to spouses about the draft opinion and how the justices had voted.
Supreme Court Marshal Gail Curley, who is in charge of the investigation, said that 97 court employees were interviewed and all denied being the leaker. She said it was unlikely the court’s information technology systems were compromised.
The report made no mention of whether the nine justices were questioned.
“No one confessed to publicly disclosing the document and none of the available forensic and other evidence provided a basis for identifying any individual as the source of the document,” Curley wrote.
“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,” she added.
The court also consulted Michael Chertoff, who served as Homeland Security secretary during the administration of President George W. Bush. Chertoff wrote in a separate statement that he had recommended several measures the court could take to improve security, including restrictions on the circulation of hard copies of sensitive documents.
Chertoff said he had reviewed the investigation and concluded that it was conducted thoroughly.
“At this time, I cannot identify any additional useful investigative measures,” he added.
Washington was rocked in May of last year when Politico published a draft opinion authored by Justice Samuel Alito that indicated the court, which has a 6-3 conservative majority, was about to overturn Roe v. Wade, the landmark abortion rights ruling.
Traditionally, the court’s internal operations are shrouded in secrecy, and it is highly unusual for any signs of internal deliberations to be leaked before a ruling is issued. A day later, Chief Justice John Roberts confirmed that the draft was genuine and said he was announcing an investigation into the leak.
Thursday’s report said that 82 employees, not including the justices themselves, had access to either a hard copy or electronic version of the draft opinion. Several people admitted in interviews that “they did not treat information relating to the draft opinion consistent with the court’s confidentiality policies,” the report said.
Employees were asked to sign an affidavit affirming that they did not leak the opinion. They would be subject to criminal prosecution if they lied to investigators.
But Curley appeared to concede there were limitations on what information investigators could glean from the interviews.
“Very few of the individuals interviewed were willing to speculate on how the disclosure could have occurred or who might have been involved,” she said.
In relation to online speculation about who the leaker might be, including references to specific law clerks, Curley said that “the investigators found nothing to substantiate any of the social media allegations regarding the disclosure.”
Politico’s report led to abortion rights protests, prompting the court to erect a security fence around the building. In the months following there were protests at the homes of some justices and one man was charged with attempted murder after being arrested near the home of conservative Justice Brett Kavanaugh while in possession of a handgun.
The following month, the court did indeed overturn Roe on a 5-4 vote, but in the months following there has been no official update on the status of the investigation.
The leak, in addition to the backlash to the abortion ruling, has led to increased scrutiny on the inner workings of the court. Liberal justices have suggested that the court risks undermining its legitimacy by abruptly unraveling decades of precedent.