WASHINGTON — The Supreme Court announced on Thursday that an internal investigation had failed to identify who leaked a draft of the opinion overturning Roe v. Wade, the 1973 decision that had established a constitutional right to abortion.
In a 20-page report, the court’s marshal, Gail A. Curley, who oversaw the inquiry, said that investigators had conducted 126 formal interviews of 97 employees, all of whom had denied being the source of the leak. But several employees acknowledged that they had told their spouses or partners about the draft opinion and the vote count in violation of the court’s confidentiality rules, the report said.
The investigation did not determine that any of those discussions led to a copy of the draft opinion becoming public, however. Investigators also found no forensic evidence of who may have leaked the opinion in examining the court’s “computer devices, networks, printers and available call and text logs,” the report said.
The findings raised the possibility that no one will be held to account for one of the most stunning breaches of secrecy in the Supreme Court’s history. The leak left the court in a state of mutual suspicion about whether a clerk or even a justice betrayed its code of silence about rulings before they are announced.
The inconclusive report comes as opinion polls have shown weakened trust that the court is motivated by the law rather than by politics, with a conservative supermajority that has steadily moved to the right in the most consequential cases.
In a statement in May hours after Politico published the draft opinion in the case of Dobbs v. Jackson Women’s Health Organization, Chief Justice John G. Roberts Jr. confirmed its authenticity but said it did not represent the final version. Calling the leak “a singular and egregious breach,” he ordered a thorough investigation. When the court issued its decision overturning Roe v. Wade in June, the opinion was essentially unchanged.
Understand the U.S. Supreme Court’s New Term
The report said the marshal’s office would investigate any new information that arose, and it made several recommendations for improving security practices. But it conveyed the distinct impression that given the select measures in place and the number of people with access to the opinion, the mystery of who leaked the opinion might never be solved.
“If a court employee disclosed the draft opinion, that person brazenly violated a system that was built fundamentally on trust with limited safeguards to regulate and constrain access to very sensitive information,” the report said.
It added: “The pandemic and resulting expansion of the ability to work from home, as well as gaps in the court’s security policies, created an environment where it was too easy to remove sensitive information from the building and the court’s I.T. networks, increasing the risk of both deliberate and accidental disclosures of court-sensitive information.”
Investigators determined that in addition to the nine justices, 82 law clerks and permanent employees of the court had access to electronic or hard copies of the draft opinion, the report said.
But in describing the scrutiny of the court, the report left ambiguous whether that included the justices themselves. The report was also silent about whether the justices’ spouses had been questioned or whether their devices and communications logs had been examined.
Notably, the report said that all witnesses were initially told that they had a duty to answer questions about their conduct as employees and that they could be dismissed if they refused. But Supreme Court justices cannot simply be dismissed from their jobs.
Chief Justice Roberts also asked Michael Chertoff, a former secretary of the Department of Homeland Security, to independently assess the investigation. In a one-page statement that accompanied the report, Mr. Chertoff said that Ms. Curley’s team had conducted a thorough investigation and that he could not “identify any additional useful investigative measures” they should have taken.
Mr. Chertoff did not respond to an email asking whether Ms. Curley’s investigators had interviewed the justices and their spouses.
When Chief Justice Roberts assigned Ms. Curley to oversee the investigation, some questioned whether she had the requisite expertise and resources to do so. Ms. Curley, a former national security lawyer for the Army, supervises an office of about 260 employees who primarily provide physical security for the justices and the court building.
At the conclusion of those interviews, the report said, employees also signed affidavits “under penalty of perjury” declaring that they had not disclosed the draft opinion or information about it to anyone not employed by the court and that they had told investigators everything they knew about the breach.
More on the U.S. Supreme Court
- New York’s Gun Law: The Supreme Court let stand, for now, a state law that placed strict limits on carrying guns outside the home. The measure was enacted in response to a ruling by the court in June that struck down a restrictive gun control law.
- Donors Meet the Justices: A charity was created to preserve the court’s history. It also became a door to nine of America’s most powerful people.
- Title 42: The court said that the pandemic-era policy that restricted migration at the southern border would remain in place for now, delaying the potential for a huge increase in unlawful crossings.
- Year-End Report: Chief Justice John G. Roberts Jr. devoted his annual report on the federal judiciary to threats to judges’ physical safety. The report shed no light on the leak of the court’s draft Roe opinion or on calls for more rigorous ethics rules for justices.
Investigators had searched for signs of disgruntlement or stress, including anger at the court’s decision, Ms. Curley said. In an apparent nod to speculation that a conservative may have leaked the draft to lock in the five justices who had already tentatively voted in the majority, she also wrote that they had “carefully evaluated whether personnel may have had reason to disclose the court’s draft decision for strategic reasons.”
The leak frayed relations among the justices. Justice Clarence Thomas likened it to an infidelity. Justice Samuel A. Alito Jr., the author of the opinion, said the disclosure endangered the lives of the justices in the majority.
The report said that investigators had “especially scrutinized any contacts with anyone associated with Politico” and assessed the public speculation, including on social media, of possible suspects.
“Several law clerks were named in various posts,” the report said. “In their inquiries, the investigators found nothing to substantiate any of the social media allegations regarding the disclosure.”
During the inquiry, investigators had collected all court-issued laptops and cellphones from people who had access to the draft opinion, but found no relevant information.
Call and text logs as well as billing records from personal cellphones did not indicate anything pertinent either, the report said. While the report said that “all employees who were requested to do so voluntarily provided” such logs, it did not say how extensive those requests were.
The report cited significant technical limitations in the inquiry. For example, while investigators could examine logs of when the draft opinion was printed on networked printers, 46 printers in the building were attached only to local computers, meaning they generated no network logs. In their own local memory, those printers only saved a log of the previous 60 documents that had been printed, the report said.
But despite those limitations, the report also said that investigators did not believe that outside hackers were responsible for extracting a copy of the Dobbs opinion from the Supreme Court’s network.
“It is unlikely that the public disclosure was caused by a hack of the court’s I.T. systems,” the report said. “The court’s I.T. department did not find any indications of a hack but continues to monitor and audit the system for any indicators of compromise or intrusion into the court’s I.T. infrastructure.”