Supreme Court’s Inquiry Into Leak Included Interviews With Justices

WASHINGTON — The Supreme Court’s internal investigation into who leaked a draft of the opinion last year overturning the landmark decision that had established a constitutional right to abortion included talking to all nine justices, the marshal of the court said on Friday.

But the justices — unlike dozens of law clerks and permanent employees of the court — were not made to sign sworn affidavits attesting that they had not been involved in the leak of the draft opinion overruling Roe v. Wade and that they knew nothing about it.

The clarification by the marshal, Gail A. Curley, who oversaw the inquiry, followed widespread speculation over its scope and limitations. In a 20-page report on Thursday, Ms. Curley disclosed that the investigation had not turned up the source of the leak while leaving ambiguous whether it had extended to interviewing the justices themselves.

“During the course of the investigation, I spoke with each of the justices, several on multiple occasions,” Ms. Curley said on Friday. “The justices actively cooperated in this iterative process, asking questions and answering mine.”

She added: “I followed up on all credible leads, none of which implicated the justices or their spouses. On this basis, I did not believe that it was necessary to ask the justices to sign sworn affidavits.”

Understand the U.S. Supreme Court’s New Term

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A race to the right. After a series of judicial bombshells in June that included eliminating the right to abortion, a Supreme Court dominated by conservatives returns to the bench — and there are few signs that the court’s rightward shift is slowing. Here’s a closer look at the new term:

Affirmative action. The marquee cases of the new term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedents at risk.

Voting rights. The role race may play in government decision-making also figures in a case that is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters. The case is a major new test of the Voting Rights Act in a court that has gradually limited the law’s reach in other contexts.

Online speech. In a few upcoming cases, the Supreme Court is poised to reconsider two key tenets under which social networks have long operated: that the platforms have the power to decide what content to keep online and what to take down, and that the websites cannot be held legally responsible for most of what their users post online.

Discrimination against gay couples. The justices heard an appeal from a web designer who objects to providing services for same-sex marriages in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling.

Immigration. The Supreme Court will hear arguments on the constitutionality of a 1986 law that makes it a crime to urge unauthorized immigrants to stay in the United States. The justices had already heard arguments on that question three years ago; several of them suggested then that the law violated the First Amendment.

Ms. Curley did not indicate whether she searched the justices’ court-issued electronic devices and asked them to turn over personal devices and cellphone records, as she did with other personnel. She also did not address whether she had interviewed any of the justices’ spouses, another question that arose after her report was made public.

In releasing the report on Thursday, the court also issued a statement from Michael Chertoff, a former prosecutor, judge and secretary of homeland security, who said he had reviewed the investigation and found it comprehensive.

Mr. Chertoff said that Ms. Curley and her team had undertaken “a thorough investigation,” and that he could not “identify any additional useful investigative measures.” Mr. Chertoff declined to comment on Thursday and again on Friday, referring questions to the court’s press office.

In May, Politico published the draft opinion in the case, Dobbs v. Jackson Women’s Health Organization, in an extraordinary breach of the court’s secrecy. The final opinion, which the court issued in late June, was essentially unchanged.

Soon after the leak, Chief Justice John G. Roberts Jr. confirmed its authenticity and called the disclosure “a singular and egregious breach,” ordering an investigation. Justice Clarence Thomas likened it to infidelity, and Justice Samuel A. Alito Jr., the author of the opinion, said the disclosure endangered the lives of the justices in the majority.

More on the U.S. Supreme Court

  • Leaked Draft Opinion: The Supreme Court announced that an internal investigation had failed to identify who leaked a draft of the opinion that overturned Roe.
  • New York’s Gun Law: The Supreme Court rejected a request from firearms dealers to block parts of recent state laws, days after it turned down a request to block other provisions of one of the laws at issue.
  • Donors Meet the Justices: A charity was created to preserve the court’s history. It also became a door to nine of America’s most powerful people.
  • Title 42: The court said that the pandemic-era policy that restricted migration at the southern border would remain in place for now, delaying the potential for a huge increase in unlawful crossings.

The leak also prompted wildly divergent theories. Some insisted that a liberal justice or clerk, angered by the coming decision, was the culprit. Others wondered whether a conservative leaked the draft opinion to lock in the five justices who had tentatively voted in the majority. Doing so could ensure that any wavering justice would be less inclined to change his or her mind.

In her report, Ms. Curley suggested that the investigation had pursued both possibilities, including scrutinizing clerks who had been the subject of online speculation. But the report indicated that no evidence supported those suspicions.

While the report also cited technical limitations in the court’s electronic communications, it said investigators did not believe that outside hackers were behind the unauthorized disclosure.

“It is unlikely that the public disclosure was caused by a hack of the court’s I.T. systems,” the report said. “The court’s I.T. department did not find any indications of a hack but continues to monitor and audit the system for any indicators of compromise or intrusion into the court’s I.T. infrastructure.”

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