The leak last May of a draft opinion on abortion written by Justice Samuel Alito was a serious breach of protocol and professional ethics that may or may not result in the prosecution of the leaker.
But finding that leaker has proved to be beyond the ability of the Supreme Court’s marshal, Gail Curley. Ms. Curley is a lawyer and former Army officer, and she oversees the Supreme Court’s in-house police force of 189. Needless to say, that force is not well-versed in handling a complex investigation like this one, and Congressional Republicans want to know why Congress hasn’t been kept abreast of any developments.
Some members suspect people are sheltering the leaker.
“For some reason, this individual has certainly been sheltered and there is absolute evidence that there are specific people who know who this person is,” Rep. Scott Fitzgerald (R-Wis.) said at a House Judiciary Committee hearing in December.
The investigation by Curley appears amateurish.
Ms. Curley, a lawyer and former Army officer, oversees the Supreme Court’s in-house police force, which has an authorized strength of 189 officers and principal missions of patrolling the court’s property and protecting the justices. With its own police having little experience in complex investigations, the court brought in assistance from outside government investigators, people familiar with the matter said. By early summer, investigators had significantly narrowed the field of suspects, the people said.
The interviews were sometimes short and superficial, a person familiar with the matter said, consisting of a handful of questions such as “Did you do it? Do you know anyone who had a reason to do it?” Investigators relied in part on publicly available information about court employees to develop theories, the person said.
Anyone could have “significantly narrowed the field of suspects” 24 hours after the leak was discovered. There is a very small number of people who would have had access to the draft opinion — many of them on Alito’s staff but others on the staff of dissenting justices who would need the draft opinion to start formulating their dissent. That’s what has led many Republicans to believe that the leaker is being protected.
Related: Alito Says Leaked Abortion Ruling Put Justice’s Lives in Danger
Some Supreme Court clerks sought legal counsel after it was announced their phones would be examined and they would be interviewed. Since then, a cone of silence has descended over the investigation. With no physical evidence to go on, the investigation has centered on motive, means, and opportunity.
There are hints that the leak may have sabotaged an effort underway by Chief Justice John Roberts to find a compromise on abortion.
The leak came amid rumors that Chief Justice Roberts was seeking to persuade some members of the court’s conservative majority to join him in a half-step that would partly curb access to abortion, rather than fully eliminating the right, which women had held since the 1973 Roe decision, to end unwanted pregnancies before fetal viability.
The leak certainly sank that opportunity. One aspect of the inner workings of the Supreme Court is that the absolute secrecy in its deliberations allows justices to change their minds — sometimes more than once — before the final vote. It encourages consensus rather than confrontation.
In this case, it led to threats of violence against some justices that required extra protection for them and their families.
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