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Justice Kagan Expects Supreme Court Leak Investigation Update By End Of Month

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OPINION: This article may contain commentary which reflects the author's opinion.


U.S. Supreme Court Justice Elena Kagan revealed this week that she expects there to be an update by the end of the month on the court’s efforts to track down the leaker.

During a discussion at Temple Emanu-El’s Streicker Center with Judge Alison Nathan, Kagan said she suspected none of her colleagues were privy to the efforts of the leak investigation “except for the chief justice, maybe, about what the investigation has turned up, if anything,” referring to Chief Justice John Roberts.

“Judges create legitimacy problems for themselves … when they instead stray into places where it looks like they’re an extension of the political process or when they’re imposing their own personal preferences,” Kagan said.

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Supreme Court Justice Neil Gorsuch also spoke recently about the investigation into the identity of the person or persons who leaked the ‘Roe’ preliminary draft opinion in May.

Gorsuch gave his views during a discussion with lawyers and judges in Colorado Springs Thursday at the 10th Circuit Judicial Conference. In June, the Supreme Court overturned the 1973 Roe v. Wade decision to legalize abortion in all states.

“The chief justice appointed an internal committee to oversee the investigation,” Gorsuch said. “That committee has been busy, and we’re looking forward to their report, I hope, soon.”

At the time, the nation’s highest court admitted that a “copy of a draft opinion in a pending case” was made public, but added that it did “not represent a decision by the Court or the final position of any member on the issues in the case.”

Nearly four months after the leak, the identity of the leaker is still unknown, however.

“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,” The Washington Times reported.

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“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,” the report added.

“If they haven’t identified the person by now, they aren’t going to make it public. I don’t think the public will find out,” said Carolyn Shapiro, a former clerk for retired Justice Stephen G. Breyer.

One Republican lawmaker recently speculated that the Supreme Court’s liberal-leaning justices are likely aware of who the leaker is.

Rep. Matt Rosendale of Montana said he believed that at least some of the justices know the leaker’s identity.

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“We all could probably agree that the justices that were appointed by Democrat presidents know who the leaker was,” he said. “What bothers me, it’s not only the undermining that it did of the institution and the trust factor that these folks have with each other,” it’s that now that the trust is broken, “it’s very difficult to restore it.”

Rosendale said he believes the person or persons who released the information will be revealed.

“There could be more people involved, and those people could go all the way to the top,” he said. “Don’t eliminate the judges because you know people, so there’s no way that would happen. No way. Think about it. Michael Sussmann is on trial right now for Russiagate. That happened six years ago. We’re only getting answers right now. I hope it doesn’t take another six years to get answers to what happened at the Supreme Court.”

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The draft opinion was leaked to Politico.

“The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right,” the outlet reported.

In the “Opinion of the Court,” Alito wrote: “Roe was egregiously wrong from the start.”

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