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Failure to find Supreme Court leaker tests justices' ability to build back trust

Washington Examiner logo Washington Examiner 1/22/2023 Kaelan Deese
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After the Supreme Court failed to unmask the leaker who circulated the draft opinion signaling the overturning of Roe v. Wade, questions linger about whether the public, let alone the justices themselves, can regain trust after the tumultuous 2021-22 term.

When Politico published a May 2, 2022 draft leak signaling the justices were prepared to allow states to create highly restrictive abortion laws, Chief Justice John Roberts ordered an investigation into what he described as an "egregious breach of trust."


Justice Samuel Alito, the author of the 6-3 Dobbs v. Jackson Women's Health opinion, called the leak a "grave betrayal of trust by somebody, and it was a shock" that led to a "changed" atmosphere at the court. Justice Clarence Thomas equated the incident to infidelity.

The 20-page report that took nine months for investigators to compile detailed the extensive efforts that took place to find a leaker, which ultimately failed for now. On Friday, more closure was offered by Supreme Court Marshal Gail A. Curley, who clarified that all nine justices were interviewed on "multiple occasions" about whether they or their closest loved ones contributed to that so-called infidelity.

Curley, who was tapped by Roberts in May to head up the investigation, cleared up part of the question many court watchers had about the justices' role in the investigation. But she was also forthright that none of the nine high court members were subject to signing sworn affidavits about their individual accounts, unlike the 97 court personnel who were required to do so as part of the probe.

Adam Feldman, founder of the widely cited Empirical SCOTUS blog, told the Washington Examiner the fact that justices were treated differently as part of the investigation will likely set "the narrative" that the court "did not do enough in this investigation," adding, "they were probably worried about stepping on people's toes."

"I think we would hold justices to a standard where we expect them to tell the truth. But to not have them sign affidavits seems like it's neglecting treating them as any other person who was being investigated for this," Feldman said.

Polling shows the court is still facing historic lows in public confidence. In addition, the relationship dynamics between the nine justices suggest an "obvious departure from the collegiality of years past," according to Steve Mazie, a Supreme Court correspondent at The Economist who recently wrote an op-ed for the Atlantic reflecting on his last ten years covering high court cases.

Case Western Reserve University law professor Jonathan Entin suggested that part of the decline in collegiality could be due in part to the rapid pace of new justices added to the court in a relatively short amount of time. "When nearly half the Court turns over in a five-year period, there inevitably will be a lot of disruption," Entin told the Washington Examiner, adding "that's true even without the unprecedented leak of the draft Dobbs opinion."

On the issue of the court's security, Feldman said the public perception of the highly cloistered court before the leak was that "things were safe within the court ... kind of held to a sacred ground. And this [report] is showing that that just wasn't the case." That's also due in part to the report referencing some clerks admitting to telling their spouses about the Dobbs opinion and vote count, which violates the clerks' code of conduct.

Additionally, Roberts' role as chief justice and the leader of the court has also been routinely questioned since the leak, as he said back in May that the disclosure would not impact the justices' work and that it "does not represent a decision by the Court or the final position of any member on the issues in the case." Ultimately, the opinion did represent their final say.

But one of the most glaring changes from decades of consistency is the recent dearth of opinions, as the justices have not published one since the end of the 2021-22 term last June. The Supreme Court announced Friday that one or more opinions would finally be posted on Jan. 23, one day after the report over the leak investigation came out.

Feldman said that the present term has marked the slowest-ever release of the first opinion, as the court typically releases at least one opinion each year within 70 days after hearing the first argument. When asked whether the probe into the leak may have caused the delay, Feldman said, "Absolutely, I think it slowed down the process."

Despite public confidence and trust declining to record low levels after the Dobbs release, a Marquette Law School poll in November showed 44% of respondents approved of the court's work, up 4% from a September survey.

Additionally, Feldman noted that while approval in the Supreme may appear low, it is "much higher" than it has been for Congress and the president.

"The public is very trusting of the Supreme Court," Feldman contended, adding that "even if there are these short dips that we haven't ever seen in the history of the polling since the 60s, we haven't seen a dip where there has been longer term ramifications for the court. And this kind of fits within that same narrative."


But in contrast, Entin said the inconclusive nature of the report may only exacerbate the present perception of distrust on the high court.

"Because nobody has been ruled out, everyone remains a suspect — and that has to be corrosive to trust within the Court," Entin said.


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Tags: Supreme Court, Leaks, John Roberts, Dobbs v. Jackson Women's Health Organization, Abortion, Roe v. Wade

Original Author: Kaelan Deese

Original Location: Failure to find Supreme Court leaker tests justices' ability to build back trust


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