Justice Samuel Alito stated last week that the leak of his draft opinion in Dobbs v. Jackson Women’s Health Organization endangered the justices’ lives: “It gave people a rational reason to think they could prevent that from happening by killing one of us.” A man who was found heavily armed outside the home of Justice Brett Kavanaugh two weeks before the court decided Dobbs has been charged with attempted murder.
The leak constituted “a grave betrayal of trust,” Justice Alito added. So why hasn’t the perpetrator been identified and punished?
One reason is that Chief Justice John Roberts assigned the Supreme Court Marshal’s Office to conduct the investigation. The marshal’s office oversees the Supreme Court police, which provides security for the building and the justices. But it is totally unequipped to conduct an investigation of this magnitude. It has no authority to issue subpoenas or to immunize witnesses to testify. The tools at its disposal are limited to questioning possible witnesses and asking to review telephone and computer records. There is no guarantee that an intensive investigation would find the leaker or leakers, but it is nearly certain that they won’t be found without one. They have a strong incentive not to come forward: No one could trust a lawyer who engineered or collaborated in such a breach.
Why did the chief justice assign the marshal’s office to conduct this investigation? That raises another question: Is the court fully committed to uncovering the truth?