U.S. Supreme Court

SCOTUS justices were questioned but not implicated in Dobbs leak probe; some are concerned about double standard

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Investigators questioned U.S. Supreme Court justices as they probed the leak of a draft opinion overturning the right to abortion, but the justices were not required to sign affidavits, the official who oversaw the probe said Friday.

“During the course of the investigation, I spoke with each of the justices, several on multiple occasions,” said Gail A. Curley, the marshal of the Supreme Court, in a statement. “The justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the justices or their spouses. On this basis, I did not believe that it was necessary to ask the justices to sign sworn affidavits.”

The Washington Post and the New York Times covered Curley’s statement, released a day after Curley issued a report that said her investigation team was unable to identify the leaker, despite interviewing 97 employees and analyzing forensic evidence. That report did not say whether the justices were interviewed.

The report indicated that all employees who had access to the draft majority opinion in Dobbs v. Jackson Women’s Health Organization, a challenge to Mississippi’s ban on most abortions after 15 weeks of pregnancy, signed sworn affidavits affirming that they did not disclose the draft and did not know anything about who did.

Some staff members were concerned that the justices were not being questioned as rigorously as court employees, according to the New York Times, which spoke with almost two dozen current and former employees, former law clerks, advisers to last year’s clerkship class and others close to them.

Law clerks didn’t want to seem uncooperative, the New York Times reports. But they were swept up in a broad search in which the questions that they were asked and the affidavits that they signed “were sweeping,” the New York Times said. Some feared that “stray comments about justices or cases” could prove damaging, even if they had nothing to do with the leak investigation.

Some employees sought legal counsel after they were asked to provide personal cellphones.

“It is unclear the degree to which clerks agreed to share the physical devices,” the New York Times reports. “But the report said that employees ‘voluntarily provided call and text detail records and billing statements,’ suggesting that at least some may have reached a compromise: Investigators could view records and numbers but did not have access to other personal material.”

The draft majority opinion in Dobbs was leaked to Politico in May 2022. Justice Samuel Alito wrote the draft and the final opinion, released in June 2022, which overruled the abortion-rights opinions Roe v. Wade and Planned Parenthood v. Casey.

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