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New Book Reveals What Happened After Supreme Court Leak

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


If the intention of the person who leaked the Supreme Court’s decision to end Roe V Wade was to pressure the Justices into changing their votes then it did not work the way they wanted.

A new book, “Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences,” author Joan Biskupic said that when the decision was leaked the Justices believed that they were locked into their decisions or they risked the credibility of the Court, The Washington Examiner reported.

When the justices heard oral arguments in Dobbs v. Jackson Women’s Health Organization in December 2021, the conservative majority appeared ready to uphold the Mississippi law outlawing abortion after 15 weeks and effectively overturning Roe. Justice Samuel Alito was tasked with writing a draft opinion reflecting the court’s position, which would have been circulated for the justices to assess and determine whether they would sign on or dissent.

While justices can change their position and their vote on a ruling before and after an opinion is circulated, Biskupic reported that once Alito’s draft opinion was leaked last May, the justices who were leaning toward overturning Roe determined they wouldn’t falter.

Biskupic reported the draft opinion was sent to justices in February, but when it was released in May, the debate stopped.

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In February there was another development in the U.S. Supreme Court’s investigation into who might have leaked a draft opinion in the landmark Dobbs v. Jackson case last May. The security of documents at the Supreme Court was minimal and included what are called “burn bags” that were simply left in hallways, CNN reported.

“Long before the leak of a draft opinion reversing Roe v. Wade, some Supreme Court justices often used personal email accounts for sensitive transmissions instead of secure servers set up to guard such information, among other security lapses not made public in the court’s report on the investigation last month,” CNN Supreme Court Reporter Ariane de Vogue said.

“New details revealed to CNN by multiple sources familiar with the court’s operations offer an even more detailed picture of yearslong lax internal procedures that could have endangered security, led to the leak, and hindered an investigation into the culprit,” the reporter said.

“Supreme Court employees also used printers that didn’t produce logs – or were able to print sensitive documents off-site without tracking – and ‘burn bags’ meant to ensure the safe destruction of materials were left open and unattended in hallways,” she said.

“This has been going on for years,” a former employee said.

Another said that the justices were “not masters of information security protocol.”

Last month, Fox News host Stuart Varney questioned the integrity of the Supreme Court after an investigation into who might have leaked a draft opinion in the landmark Dobbs v. Jackson case last May did not reveal any possible names.

During a segment on “Varney & Co.,” he expressed frustration and disbelief at how the Supreme Court investigation into the leaker of the Roe v. Wade draft decision failed to identify a culprit after interviewing over 75 people in the months-long probe. In May 2022, Politico published a leaked draft opinion for Dobbs v. Jackson Women’s Health Organization, which resulted in nationwide protests and threats of violence to conservative justices at their homes.

Varney also noted that the Supreme Court conducted interviews with nearly 100 employees, but reportedly did not speak with any justices themselves. He noted that it seemed odd that none of the justices appear to have been interviewed in an investigation of this magnitude.

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The Supreme Court released its report last month into who might have leaked the draft opinion, which overturned the Court’s controversial precedent in Roe v. Wade on a “constitutional right” to abortion and returned the issue to the states.

The investigation concluded without identifying the source of the leak to Politico last year:

The investigation by the marshal of the Supreme Court included a forensic investigation of laptops and phones but found “no relevant information from these devices.” The marshal’s office determined that 82 employees had access to the opinion and interviewed 97 employees, all of whom denied leaking the opinion.

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Several have pointed out that it seems odd that none of the justices appear to have been interviewed in the investigation:

It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal deliberations.

For these reasons and others, the Court immediately and unanimously agreed that the extraordinary betrayal of trust that took place last May warranted a thorough investigation. The Chief Justice assigned the task to the Marshal of the Supreme Court and her staff. After months of diligent analysis of forensic evidence and interviews of almost 100 employees, the Marshal’s team determined that no further investigation was warranted with respect to many of the “82 employees [who] had access to electronic or hard copies of the draft opinion.” Marshal’s Report of Findings & Recommendations 11 (Jan. 19, 2023). In following up on all available leads, however, the Marshal’s team performed additional forensic analysis and conducted multiple follow-up interviews of certain employees. But the team has to date been unable to identify a person responsible by a preponderance of the evidence. Id., at 17. A public version of the Marshal’s report is attached.

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