'Kid glove' treatment of Supreme Court won't find abortion leaker or stop ethics abuses

Will we ever solve the Mystery of the Supreme Court Leaker? Where are Nancy Drew and the Hardy Boys when we need them? Where are Miss Marple, Hercule Poirot and Harry Bosch?

There was an investigation into who leaked a draft of the court’s bombshell decision ending Roe v. Wade and the national right to abortion. But it could not identify the culprit "by a preponderance of the evidence," the court said last week, and that seems to be that.

One of the most disappointing lessons of our time is that with great power comes great freedom from accountability. In public life, presidents and justices are often left to police themselves. The system is set up on the assumption that they are inherently trustworthy, and that's not always a good bet.

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Case in point: The court in its Jan. 19 statement called the leak “one of the worst breaches of trust in its history” as well as “a grave assault on the judicial process.” Chief Justice John Roberts branded it “absolutely appalling,” according to CNN. But there were no independent super sleuths on the case.

The investigation was conducted by Supreme Court Marshal Gail Curley and her staff, and deemed professional and thorough in a review by former Homeland Security Secretary Michael Chertoff. Ninety-seven employees were interviewed, some multiple times.

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But the report did not disclose that, according to new CNN reporting, the court had a financial relationship with Chertoff's security firm, the Chertoff Group. In addition, as attorney Mark Zaid told me, nobody could tell from the initial report whether the justices themselves had been interviewed.

The next day, Curley explained that she had spoken to each justice, “followed up on all credible leads,” none implicated the justices or their spouses, so "I did not believe that it was necessary to ask the Justices to sign sworn affidavits.”

Justices on a 'higher plane'

Court employees, by contrast, had to sign affidavits saying "they did not disclose the draft opinion nor know anything about who did," and a few added that they had mentioned the draft to a spouse or partner.

The message to Zaid, who has represented many whistleblowers, was that the justices received “kid glove” treatment that “segregates the justices on a higher plane.”

Zaid theorized in an interview that a justice could easily bring home a draft opinion, put it on the desk, go out for a couple of hours, and a spouse copies it and returns the draft to the desk. “Maybe I am Hollywoodizing this,” he conceded, but added: “While I have zero idea who leaked the decision, there’s no plausible way to eliminate justices and family members as suspects.”

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The Supreme Court has been weathering political and ethical crises for years. Senate conservatives blocked Merrick Garland, President Barack Obama’s nominee, for nearly a year – making way for three appointments by President Donald Trump, who had won nearly 2.9 million fewer votes than Hillary Clinton. They rammed through Brett Kavanaugh’s nomination despite credible sexual assault accusations and 4,500 tips on an FBI tip line, rammed through Amy Coney Barrett’s nomination in just a month, and stacked the court with ideologues unrepresentative of the country.

The deeply unpopular draft abortion decision in fact closely tracked the final decision; it upended nearly 50 years of precedent, U.S. politics and the lives of countless pregnant patients and their medical providers. Republicans attacked the leak, but they couldn't paper over the court’s unprecedented rollback of women’s rights.

Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, said the abortion opinion leak isn’t even the court’s worst ethical problem. In some ways, he told me, “it’s a much bigger deal” when, for instance, a justice’s spouse has close ties to cases and issues before the court and that justice doesn’t recuse.

The latest outrage on that front concerns Justice Clarence Thomas, whose wife, Ginni, was an active booster of the Big Lie that Trump had actually won the 2020 election (he didn’t). She attended Trump's “Stop the Steal” rally on Jan. 6, 2021, texted with White House chief of staff Mark Meadows about overturning the election and contacted state legislators to push a “fake elector” scheme. Yet her husband has not recused himself from insurrection cases, and in a case where the court granted the House Jan. 6 committee access to Trump records, he was the only justice to disagree.

The larger problem is that unlike lower levels of the court system, including other federal judges, Supreme Court justices aren’t bound by standards of ethics and conduct. They decide whether and when to recuse themselves from cases. There are no guidelines or constraints on whom they associate with, including donors and advocates with interests before the court. There are no term limits for them, no way voters can recall them at the polls, no one who can dig into problems without worrying they’ll be fired.

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Justices 'vouching for themselves'

“You don’t have an inspector general or anybody independent who can investigate,” Bookbinder said. Right now, he added, the court needs “a code of conduct” and some way to investigate “other than members vouching for themselves.”

Under the current setup, he and Zaid told me that they do not expect we’ll get a more complete leak investigation. The report last week seemed to signal “this is it, we’re done, absent some source coming through with something personal,” Zaid said.

He likened the situation to a marriage in which one spouse is cheating and the other spouse senses it, but never asks the question directly. “You don’t want to know what the answer is because the consequences would be so great,” he said, just like in the leaker case: “If it were identified to be a justice or their spouse, the consequences to that justice and the court would be devastating.”

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The Kavanaugh confirmation is the subject of a new documentary called “Justice" that just premiered at the Sundance Film Festival. The filmmakers received so many calls and tips afterward that they are reopening their investigation and may add more footage.

Unfortunately, when it comes to further investigation of the leak that shook a nation and its highest court, it looks like we’re at the end of the line. Unless maybe someone decides to make a movie.

Jill Lawrence is a columnist for USA TODAY and author of "The Art of the Political Deal: How Congress Beat the Odds and Broke Through Gridlock." Follow her on Twitter and Post.News

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This article originally appeared on USA TODAY: Abortion leak, Ginni Thomas: Supreme Court needs enforceable rules