Before the U.S. Supreme Court, on June 24, 2022, officially released its ruling in Dobbs v. Jackson Women’s Health Organization, Politico published a leaked draft opinion by Justice Samuel Alito that outlined the High Court’s reasons for overturning Roe v. Wade. Defenders of abortion rights hoped the Court would somehow change its mind, but that didn’t happen; Roe — and by extension, Planned Parenthood v. Casey — was overturned 5-4. The Court’s final decision in Dobbs confirmed what Politico had reported on May 2.
An investigation followed the leak, and on January 19, 2023 — over eight months after Politico’s bombshell reporting — the High Court finally released the results of that investigation. And the Court still didn’t know who had leaked Alito’s draft opinion in Dobbs to Politico.
The Court announced, “It is not possible to determine the identity of any individual who may have disclosed the document or how the draft opinion ended up with Politico. No one confessed to publicly disclosing the document, and none of the available forensic and other evidence provided a basis for identifying any individual as the source of the document.”
Legal experts and media pundits have had a lot to say about the investigation results. And many of them find it “ridiculous” that the U.S. Supreme Court — after months of complaining about how egregious the leak was — said it couldn’t determine where the leak came from.
Reporting for Above the Law, attorney Kathryn Rubino explains, “Let me cut directly to the chase — it’s basically a giant shrug emoji…. You’ll recall, shortly after the leaked draft decision, getting to the heart of the leak seemed to be the focus for many in the legal industry — even in the face of a curtailment of rights that has had disastrous ramifications across the nation. The report seems to suggest the scope of the investigation was limited to Court employees…. Whether the ‘employees’ who were subjected to the investigation includes the justices themselves remains unclear, and the speculation amongst legal industry commentators is that the nine were not included in the search for the leaker — and it certainly doesn’t include any of their spouses.”
Legal expert Elie Mystal, a frequent guest on MSNBC and writer for The Nation, reacted to the High Court’s report in a scathing January 19 Twitter thread. And he wasn’t shy about expressing his total disdain for the Court’s radical-right majority.
Mystal wrote, “I told everybody, from the very beginning, that if the Dobbs leaker turned out to be a Republican, the Supreme Court would somehow never find who did it. Welp, the report's out and, what do you know, they don't know who did it…. People should really (consider) listening to me when I tell them how brazenly hackish and corrupt the current Supreme Court ruling class is.”
Mystal is not alone is that disdain. Poll after poll is showing that public approval of the U.S. Supreme Court has fallen to historic lows.
There has been plenty of speculation that the leaker might have been one of the Supreme Court justices or a spouse of one of the justices.
Vox’s Ian Millhiser, on January 19, tweeted, “Is this right? Do the justices not count as ‘Court personnel’ or ‘permanent employees?’ Because it's utterly ridiculous to conduct an investigation that excludes nine prime suspects.”
That same day on Twitter, attorney Max Kennerly posted, “The likelihood of the Dobbs leak coming from the Alito/Thomas camp just went from 95% to 99%.”
Kennerly said of Alito and Justice Clarence Thomas, “Both have a long history of ethical improprieties on the court, and they were the only ones with anything to gain from a leak, to lock in any wavering Justices who didn't want such an aggressive approach. It worked, and the final was barely changed from the draft.”
Justice Thomas’ wife, far-right GOP activist and conspiracy theorist Ginni Thomas, has been a strident abortion opponent. Legal experts have been troubled by the fact that Ginni Thomas, who tried to help former President Donald Trump overturn the 2020 election results and falsely claimed that the election was stolen from Trump, is married to a Supreme Court justice. Rep. Alexandria Ocasio-Cortez of New York City has called for Justice Thomas to be impeached.
Rubino wraps up her Above the Law article by lamenting that right-wing media figures are more worried about the Dobbs draft opinion leak to Politico than the widespread misery the overturning of Roe v. Wade has caused.
Rubino says of the High Court’s investigation report, “Unfortunately, this also means the Dobbs leak will continue to be a favorite talking point for the right. It’s easier for them to talk about a boogey man leaker than the rising maternal and infant death rates linked to a dearth of reproductive health choices.”