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Supreme Court Could Not Identify Source Of Abortion Opinion Leak

Updated: Jan 20, 2023

An investigation by the Supreme Court has been unable to determine who disclosed to Politico a draft opinion overturning the constitutional right to abortion, the court said Thursday. The internal probe focused on 82 employees who had access to electronic or hard copies of the draft majority opinion overturning Roe v. Wade, but “was unable to identify a person responsible by a preponderance of the evidence,” the court said, Politico reports. “The leak was no mere misguided attempt at protest. It was a grave assault on the judicial process,” the court said, calling the disclosure an “extraordinary betrayal of trust.” The court also released a report of the investigation Supreme Court Marshal Gail Curley. “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 said. “All personnel who had access to the draft opinion signed sworn affidavits affirming they did not disclose the draft opinion nor know anything about who did.”

Curley said that some people "admitted to investigators that they told their spouse or partner about the draft Dobbs opinion and the vote count, in violation of the Court’s confidentiality rules. Several personnel told investigators they had shared confidential details about their work more generally with their spouses and some indicated they thought it permissible to provide such information to their spouses." Curley’s investigation found no indication that the early disclosure of the opinion was the result of a hack or electronic intrusion, but added that “investigators cannot rule out the possibility” that the draft emerged because it was left in a public place inside or outside the court. Former Secretary of Homeland Security Michael Chertoff, a former appeals court judge, was retained to review Curley’s work. "The court has already taken steps to increase security and tighten controls regarding the handling of sensitive documents,” Chertoff wrote. “More significantly, the Chief Justice has also directed a comprehensive review of the Court’s information and document security protocols to mitigate the risk of future incidents....I cannot identify any additional useful investigative measures.” Curley suggested the possibility of making it a crime to disclose internal court documents. "I don’t think the court wants us to know who did it," said veteran court reporter Dahlia Lithwick on Slate.


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