As Spencer covered on Thursday, the U.S. Supreme Court issued an update about the leaked Dobbs v. Jackson decision. While the draft was leaked on May 2, the decision was not officially handed down until June 24. Thursday's update, however, didn't bear much fruit, as we still don't know who leaked the decision.
Curt Levey, a constitutional law attorney and the president of the Committee for Justice, noted in a statement that the "failure of the Supreme Court’s report to shed any light on the identity of the leaker is the worst possible outcome of the Court’s investigation," warning that the absence of any punishment or even consequences for the leaker makes it more likely that this 'grave assault on the judicial process'—as the Justices’ statement calls it—will be repeated, further damaging the Court's integrity and cohesion."
Not surprisingly, people jumped to their own conclusions about who the leaker could be, with some unhinged folks claiming it was a conservative.
"It is unfortunate that many voices on the Left have seized upon the failure to identify the leaker as an opportunity to push a theory that the Court is trying to cover up the supposed fact that the leaker was a conservative clerk or justice. These critics cite no evidence and ignore both that yesterday’s statement came from the entire Court and the common sense observation that the leaker was likely angry about the draft Dobbs opinion overturning Roe v. Wade," pointed out about such a theory.
"Alito" was even trending on Twitter as a result, thanks to suggestions that Justice Samuel Alito leaked the draft opinion he himself wrote. Levey described people claiming it was Alito as those "pushing this baseless theory as ventur[ing] even deeper into fantasy" and added that "while it’s very unlikely that any of the justices were behind the leak, it is particularly absurd to point the finger at Justice Alito."
Some of the more particularly outrageous offenders doubled down on their tweets, including attorney Tristan Snell who also is been a commentator at CNN and MSNBC.
“And I would’ve gotten away with it too…” pic.twitter.com/DUMCAbKH2y— Tristan Snell (@TristanSnell) January 20, 2023
So, Justice Alito WROTE the Dobbs opinion, but no one investigated whether HE was the one who leaked it?— Tristan Snell (@TristanSnell) January 19, 2023
That's like investigating a case of vandalism and ignoring the kid holding a can of spray paint.
Dear SCOTUS -- I think I can solve the puzzle: pic.twitter.com/KbzONsY8d3— Tristan Snell (@TristanSnell) January 19, 2023
An account known as Mrs. Betty Bowers did the same as well.
Republicans seem surprisingly angry that the Supreme Court is covering up for Justice Samuel Alito and/or Ginni Thomas.— Mrs. Betty Bowers (@BettyBowers) January 19, 2023
SCOTUS didn't say it has "no evidence" who leaked the Dobbs draft. It says they can't prove it with a "preponderance of the evidence." And it wasn't hacking.— Mrs. Betty Bowers (@BettyBowers) January 19, 2023
That means two things: It was an inside job; and they have evidence who did it (i.e., Alito). https://t.co/CJWQntp6Qr
And how can we forget Vox's Ian Millhiser? He's the one who bizarrely shared last August he had pre-written obituaries for Justice Alito and had applauded the moves of the leaker when the news broke. Both tweets have since been deleted. While he made clear he didn't know who leaked the decision, he still discussed it at length.
I am sincere when I say that I do not know if Samuel Alito is the leaker. But I see all the Alito jokes that everyone is making and I applaud them.— Ian Millhiser (@imillhiser) January 20, 2023
The Supreme Court is a wicked institution that has served the United States very poorly for nearly all of its history. I am happy that the Court was humiliated by the Dobbs leak because the Court is objectively bad.https://t.co/YGgchveBrI— Ian Millhiser (@imillhiser) January 19, 2023
Hopefully whoever leaked the Dobbs opinion will get tenure in a few years, and write a tell-all book once the Court can no longer sabotage their entire career.— Ian Millhiser (@imillhiser) January 19, 2023
(This, of course, assumes that the leaker is not Alito.)
"As the author of the draft opinion, the leak put his life in danger even more so than those of his conservative colleagues," Levey reminded about Alito.
It can't be stressed enough that Alito, and other conservative justices, were targeted in completely inexcusable ways for an opinion that hadn't even been handed down yet. Illegal protests occurred outside the homes of these justices, which forced Alito to leave his home and appear for events remotely. Even Chief Justice John Roberts was targeted, despite how he didn't even sign onto the majority opinion; he merely concurred. Someone wanted to assassinate Justice Brett Kavanaugh, and it's since come out that the suspect, 26-year-old Nicholas Roske, wanted to potentially target other justices.
When it comes to protesting the justices, a group known as Ruth Sent Us published their addresses as well as urged people to protest Justice Amy Coney Barrett where she went to church and where her children attended school. Twitter suspended their account, months after the fact.
There were also groups who paid people to harass justices while out in public, with Justice Kavanaugh having to use the back door to leave a restaurant he was dining at last July.
Throughout all of this, the White House and Democrats could hardly have been more dismissive. Jen Psaki, then the White House Press Secretary, made clear they cared more about Roe being overturned than they did about the leak, as did other Democrats. Further, Psaki also said that they "encourage" the protests. These protests by the way, were something that Senate Majority Leader Chuck Schumer (D-NY) even laughed about. Psaki's successor, Karine Jean-Pierre, similarly failed to condemn the harassment facing justices when out in public.
Then Speaker of the House Nancy Pelosi (D-CA) also didn't seem too worried about the safety of the justices given her dismissive remarks when it came to delays with a bill to provide further protection to the justices. While that bill ultimately passed the House last June, it did so after drama and delays, with 27 Democrats voting against it. Meanwhile, it had passed with unanimous consent in the Senate over a month prior.
It's not only conservative justices who have been targeted, but numerous pro-life organizations, including pregnancy centers and churches. The FBI just on Thursday released a press release asking for help investigating the attacks and offering a reward for more information.
So it doesn't seem likely that Alito, or any other conservative justice, would put him or herself and their colleagues through that.
This is not the first time that Alito has been targeted with claims about leaks. Rep. Hank Johnson (D-GA) and Sen. Sheldon Whitehouse (D-RI) had threatened an investigation of the Court over claims from a former pro-lifer turned liberal activist, Rev. Rob Schenck, that Justice Alito had allegedly leaked the 2014 Burwell v. Hobby Lobby case.
Ethan V. Torrey, legal counsel for the Supreme Court, quickly sent a letter though pushing back against any claims of impropriety, calling the charges of a leak "uncorroborated." Rep. Jim Jordan (R-OH), as Spencer subsequently covered, went on to discredit Schenck when he appeared before the House Judiciary Committee.
Granted, some claimed it was Justice Sonia Sotomayor, one of the liberal justices who was nominated by then President Barack Obama, causing "Sotomayor" to trend. That's bogus too. But the reasoning behind Justice Alito being the leaker, especially with all that he went through just for writing the majority opinion, is truly unsound.
There is still cause for speculation, however, with Levey pointing to how the Court said it was unable to identify the leaker "by a preponderance of the evidence," which he said, seems to suggest that there are possible suspects, as does the disclosure that investigators 'conducted multiple follow-up interviews of certain employees.''"
Given what we do know, all of these months later, Levey believes "that further investigation should be conducted outside the Court," warning about "the dangerous consequences of allowing this mystery to go unsolved, and the apparent winding down of this investigation." He is, however, "pleased" to hear that the House Judiciary Committee, now under the chairmanship of Rep. Jim Jordan (R-OH) will investigate the link, and believes "the FBI or other federal law enforcement" should also do so.