It was a horrendous day for the Supreme Court. It was not the decision that was appalling — it was the leak, and no one could figure out who did it. Meanwhile, Reality Winner was arrested by federal agents for spilling national security secrets to the media. She worked within the intelligence community, which has a staff a million times the size of SCOTUS clerks. Who leaked the Dobbs decision in 2022?
It was a moment that shattered collegiality and trust among the jurists, an institution that prides itself on not being swayed by public opinion because that’s not what it’s designed to do. The Supreme Court is never meant to know the national mood — that’s for legislatures to deal with. Fortunately, that breach was not lost on the Trump Justice Department, which is pursuing a criminal investigation into who leaked the landmark ruling. Justice Samuel Alito sparked new interest in the mole hunt when he said he thought he knew who did it, but didn't go any further, citing a lack of solid evidence (via NYT):
The Justice Department is pursuing a criminal investigation into who leaked the Supreme Court’s 2022 decision overturning the right to abortion, examining the inner workings of an institution that has long operated in secrecy and resisted oversight from the other branches of government.
At issue is who provided the draft decision to Politico two months before it was formally released by the court, a seismic breach of confidentiality that led to intense partisan accusations about the motivations of the leaker.
Despite an internal inquiry by the court, no leaker has ever been publicly identified. An F.B.I. official said last year that the Justice Department was exploring the issue.
But prosecutors are now pursuing a criminal case, which has not previously been reported. The investigation has ramped up in recent weeks as prosecutors have sent grand jury subpoenas for testimony and sought information from people who worked at the court at the time of the leaks, according to people familiar with the inquiry.
From the beginning, the question of how to deal with the leak has been complicated by what charge could be brought even if the leaker were identified, as well as by concerns about the constitutional issue of separation of powers between the executive branch and the court.
The U.S. attorney in Washington, Jeanine Pirro, a Trump ally, is overseeing the investigation. Along with several career prosecutors, Ms. Pirro has assigned one of her top lieutenants to the investigation. That prosecutor, Carlton Davis, has led efforts to investigate local fraud and violence and also oversaw a failed effort to indict six Democratic lawmakers for reminding troops they could refuse illegal orders.
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Many liberals, meanwhile, theorized that a conservative did it to lock in the abortion decision. The Times has reported that at the time of the leak, some of the justices were pursuing compromise efforts that might have preserved some federal right to abortion, efforts that ended with the publication of the leaked draft.
First, abortion was never banned nationally. Second, the Roe decision created a right to abortion that was shoddy at best; even liberal legal scholars would admit that, which is why Supreme Court nominations were seen as existential crises for these people. Third, the Dobbs decision left this matter where it belongs: with the states, where a consensus was forming before 1973 blew it all up.
Some states, like Ohio, have codified a right to abortion in their state constitutions. Kansas rejected a right-to-life amendment. The consensus position isn’t shocking: abortion is legal but will have restrictions. It won’t be taxpayer-funded. Now, blue states might not have restrictions, which is heinous but again not shocking.
I’m not convinced conservatives leaked the opinion. Roe being retconned, alone, is a win, so I doubt an opinion that was going to reset the debate and return it to its proper sphere, regardless of the purported compromise behind the scenes, is worth leaking. Conservatives also don’t go outside the institution's norms, which have been a double-edged sword. It’s something liberals use to placate and lead us along as they plot to nuke it from within in due time. Much like how Republicans view the Senate legislative filibuster: that deference led to the Save America Act being killed forever. Granted, those are two totally separate issues and branches, but someone on the Court committed an egregious offense and should be held accountable.