The Supreme Court on Thursday said it had failed to solve the mystery of who leaked its draft opinion last May in the pending abortion case that overturned Roe vs. Waten.
The leak of the high-profile decision was one of the biggest breaches in court history.
In a statement, the court said Gail Curley, its marshal, interviewed 97 people who worked at the court who had access to draft opinions, and then re-interviewed several of them. But she couldn’t determine who copied the draft report and passed it on to Politico.
“The Marshal’s team conducted additional forensic analysis and conducted several follow-up interviews with specific employees. But to date, the team has not been able to identify anyone responsible through overwhelming evidence,” the court said.
The leaked draft confirmed what many had suspected at the time. Five conservatives, led by Judge Samuel A. Alito Jr., had agreed to repeal abortion rights introduced in 1973 and allow states to ban some or all of these procedures.
The day after the unprecedented leak, Chief Justice John G. Roberts Jr. confirmed the draft opinion was authentic and said the breach will not affect the handling of the decision.
In late June, the court issued the 5-4 decision in the Mississippi abortion case, and its opinion closely matched the draft.
Judges said they were shocked and surprised by the leak, and they remain angry at what they called an “extraordinary breach of trust” and a “grave attack on the court process” in Thursday’s statement.
Although judges often bicker when hearing cases in court, they insist on strict confidentiality when drafting and revising opinions.
Legal trainees are hired for one year and must undertake to maintain the confidentiality of these internal debates.
The Marshal’s report indicated that she might suspect that one or more people were involved in the leak, but evidence was lacking to prove this. She also said the pandemic may have played a role because staff were working from home.
“When a court clerk disclosed the draft opinion, that person has brazenly violated a system fundamentally built on trust with limited safeguards to regulate and limit access to very sensitive information,” she wrote. “The pandemic and resulting expansion of work-from-home opportunities, as well as gaps in the court’s security policies, created an environment where it was too easy to leak sensitive information from the court’s building and IT networks remove, which increased the risk of both intentional and accidental disclosure of sensitive court information.”
Michael Chertoff, the former Secretary of Homeland Security, said he was asked to independently evaluate the court’s internal investigation, and he called it a “thorough investigation.”
The court said it had not closed the investigation. ‘The Marshal reports that ‘[i]Investigators are still reviewing and processing some electronic data that has been collected and some other inquiries are pending. If additional investigations result in new evidence or clues, the investigators will investigate them.”