In a town not known for keeping secrets, it’s been four full months since the unprecedented leak of the Supreme Court‘s draft opinion overturning national abortion rights and the subsequent probe announced by Chief Justice John G. Roberts Jr. to identify the perpetrator — with no public sign of progress in the manhunt.
Former law clerks at the high court from both sides of the aisle were uniformly stunned when Justice Samuel L. Alito Jr.’s draft dropped online, but they differ broadly on whether the court should identify the culprit and if the leaker needs to be punished to counter future disclosures of controversial cases.
And despite the magnitude of the breach of high court etiquette and procedure, some think the mystery may never be cracked — or at least revealed to outsiders.
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But Mike Davis, president of the Article III Project and a former law clerk to Justice Neil M. Gorsuch, warns that if there’s no accountability, another leak could happen in the future.
And while the motivation of the leaker — to lock in an anti-abortion ruling or to energize supporters of abortion rights before the formal ruling came down — may be unclear, the cast of potential suspects is not large.
“The universe of people who had access to the draft Dobbs decision along with the internal deliberation of the justices is limited to nine Supreme Court justices, each of their four law clerks and very few others. This should not be hard to figure out,” he said.
“The court must get to the bottom of this and it owes the public an explanation as to why it has not,” he added.
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Both Ms. Shapiro and Mr. Davis clerked at the high court years before this past term when the historic leak took place. But they see the fall out from the leak quite differently.
“I don’t think it damaged the integrity [of the court],” said Ms. Shapiro.
Bu Mr. Davis said letting the case remain unsolved would create a troubled precedent
“By not having consequences for this leak, the court makes itself a political target for every controversial decision going forward,” said Mr. Davis.
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