In a surprising statement to The Wall Street Journal today, Supreme Court Justice Samuel Alito says he has a “pretty good idea” who leaked a draft opinion in Dobbs v. Jackson Women’s Health Organization. He strongly suggested that it was someone who opposed the opinion and wanted to pressure the justices not to go forward with the overturning of Roe v. Wade.
Alito told the newspaper “I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody.”
Alito’s confidence runs counter to the two-page statement of the court that the team led by Marshal of the Supreme Court Gail Curley “has to date been unable to identify a person responsible by a preponderance of the evidence.” That is a standard lower than “beyond a reasonable doubt.” It is often used in civil cases, but the evidence was viewed as below that standard.
He added “It was a part of an effort to prevent the Dobbs draft…from becoming the decision of the court. And that’s how it was used for those six weeks by people on the outside—as part of the campaign to try to intimidate the court.”
The statement suggests that such information on the specific suspect was shared with the justices. If this was a clerk and the evidence is known to all of the justices, it would be interesting if the justice responsible for the appointment felt comfortable in recommending the young lawyer for later employment.
Alito’s statement contradicts those in the media like NPR’s Nina Totenberg who insisted that “the only [theory] that makes sense” is that a conservative leaked the opinion. At the time, I criticized Totenberg’s claim as entirely unsupported and illogical.
We know from the investigation that clerks (but not justices) were asked to sign affidavits after their interviews and the marshals emphasized that “If investigators later determine any personnel lied to the investigators, those personnel would be subject to prosecution for a false statement.”
In a weird way, it seems even more troubling that the likely culprit may have been identified, but has proceeded into practice as an attorney. As I have previously written, this was a crushing blow to the Court and its traditions of integrity and civility. You cannot be an attorney after violating these core principles of our profession. This is akin to being an atheist priest or an arsonist architect. It is simply incompatible with our core identity, including being “officers of the court.”
Whoever is responsible for this leak violated the most fundamental rules of ethics in our profession. It was a betrayal of not just the Court and the bar, but the public in shattering the confidentiality of the judicial process.
What is even more troubling is that, if the culprit were to come forward, the individual would likely be lionized by many. Indeed, I would not be surprised if, after the statute of limitations has passed, there could come a time when this person may want to take “credit” for this disgraceful act. However, that may not occur for some time since this person likely wants to continue to practice as a lawyer despite violating an oath, making false statements, and disrupting the highest court.
Yet, it did not change the result. Indeed, it may have backfired. If this was a liberal, the effort to pressure the Court may have only reinforced the resolve of the majority to hold firm on the position from the Dobbs draft.