Whodunit? Speculation swirls as Supreme Court launches probe into leaked draft abortion opinion

WASHINGTON – A leaked draft opinion in the Supreme Court's blockbuster abortion case set off a flurry of speculation about the identity and motivation of whoever exposed the document as the court launched its probe into the unprecedented breach.

Not since an anonymous op-ed purportedly by an administration official critical of President Donald Trump appeared in The New York Times in 2018 had there been such a furious spinning of theories about a leaker – a whodunit that, like everything else in Washington, quickly took on political overtones.

Could it have been a clerk, one of the 20-something law school graduates that put in punishing hours helping to research and craft opinions? Maybe it was a justice, a member of the court's liberal wing trying to scuttle the outcome or a conservative hoping to galvanize support for Associate Justice Samuel Alito's position. What if the leak didn't come from any of them? What if it was the result of a computer hack?

"Look, there are lots of theories," said Sean Marotta, a veteran appellate attorney who follows the Supreme Court closely. "Anybody can construct a theory, but at this point, nobody has any evidence to back any of them up."

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Alito's 98-page opinion laying out the conservative case for overturning the 1973 Roe v. Wade decision was published by Politico on Monday, a bombshell revelation that thrust abortion and the court into the midterm election – at least temporarily stealing attention from the war in Ukraine, spiraling inflation and COVID-19.

In a statement Tuesday, the Supreme Court said Gail Curley, the high court's marshal, would handle the investigation. Curley's office supervises about 260 employees with a wide range of responsibilities, including building security, maintaining order in the courtroom, overseeing contracts and even some human resources functions.

Marotta said that although the office manages the Supreme Court police, many of its jobs are more administrative. The fact that Chief Justice John Roberts assigned the probe to Curley instead of, say, to the counselor to the chief justice – essentially his chief of staff – is telling.

"It's notable that the chief assigned this to somebody who is an institutional officer of the court," Marotta said. "He sort of took it away from his personal office, so to speak, and put it more just in the institutional area of the court."

A Supreme Court spokeswoman did not respond to questions about the investigation.

Part of the speculation around the leak and the investigation – as well as the commentary from across the street in Congress – stemmed from the stunning nature of the breach. Leaks piercing the veil of secrecy around the Supreme Court happen rarely, and experts couldn't recall a draft opinion ever being disclosed in this fashion.

In the past, leaks have made for an uncomfortable work environment within the confines of the Supreme Court building. In their 1979 book "The Brethren," Washington Post journalists Bob Woodward and Scott Armstrong noted that Chief Justice Warren Burger was so dismayed by a Time magazine scoop about the outcome of the Roe v. Wade decision that he threatened to bring in the FBI to conduct lie detector tests.

A clerk in Associate Justice Lewis Powell's chambers fessed up and, according to the book, was not forced to resign.

It's not likely that such a leak is illegal, experts said, but it would probably be a career-ending move for a clerk, making it impossible to pursue opportunities in the top tiers of the legal profession. If the document was stolen or obtained through a hack, that would be different, experts said.

Renato Mariotti, a former federal prosecutor, said bringing in the Justice Department to help with the investigation would raise separation of power issues – the kind of outside involvement Roberts has long been keen to avoid. It could subject the justices themselves to a level of scrutiny they might find unwelcome.

Mariotti said he could envision justices refusing to cooperate with investigators, which would raise the unprecedented prospect of issuing subpoenas or search warrants.

“If I was conducting such an investigation, I would, for example, seize digital devices and have them imaged. I would seek and obtain email accounts and review private email,” said Mariotti, a partner at the Thompson Coburn law firm. “It’s not clear to me that the chief justice of the Supreme Court wants an investigator – whether the marshal or someone else – seizing the cellphones of justices and families and associates, going through their private emails and so forth.”

Investigators of the leak are heading into uncharted waters, some experts said.

"I'm 100% certain that they haven’t investigated anything like this before," said Paul Rosenzweig, a former senior counsel with Ken Starr’s independent counsel investigation of President Bill Clinton and the founder of Red Branch Consulting.

A liberal justice leaker?

One of the first conclusions official Washington jumped to in the hours after Politico published the opinion was that the leak was the work of one of the court's three liberal justices – or one of their clerks – hoping to change the court's direction on abortion.

Alito's draft opinion was a full-throated repudiation of Roe, a decision that – if embraced by the court – would not only overturn a landmark precedent but amount to a change in the way Americans have understood reproductive rights for the past five decades. If the idea was to call attention to that outcome, a leak from the left might make sense.

"Whoever committed this lawless act knew exactly what it could bring about," Senate Minority Leader Mitch McConnell, R-Ky., said Tuesday. "Everybody knows what kind of climate the far left is trying to fuel. One that is antithetical to the rule of law."

Like all the other theories floating around, McConnell's was speculative – offered without evidence.

Conservative strategy on Roe?

A counter-theory is that a conservative might have leaked the draft in an effort to hold together a majority. A wavering justice might be less willing to switch sides in the case if there is a perception of doing so because of the fallout from the disclosure.

"In terms of who leaked it and why, it seems much more likely to me that it comes from the right in response to an actual or threatened defection by one of the five who voted to overturn Roe," said Kermit Roosevelt, a professor at the University of Pennsylvania Carey Law School. "Leaking this early draft makes that more costly for a defector because now people will think that they changed their vote after the leak."

Justices can and do switch sides after seeing draft opinions. Dissents can become majority opinions. There was wide speculation that the court's liberals joined a major decision last year curbing LGBTQ rights to head off a much more far-reaching opinion that would have represented a major win for religious groups.

CBS News reported in 2012 that Roberts initially sided with the court's conservative wing to strike down the Affordable Care Act but changed his mind.

Clerk? Aide? Someone else?

In the cloistered world of the Supreme Court, heavy on tradition and slow to embrace technology, there should in theory be a relatively small number of people who would have access to a draft opinion – namely the justices and their clerks.

Associate Justice Elena Kagan noted in 2013 that the nine jurists were still largely communicating by paper. It's likely that's changed, particularly during the COVID-19 pandemic as proceedings and meetings were held virtually, though the court hasn't detailed those changes, probably in part because of security reasons.

In 1979, after ABC News reported in advance the outcome in a major libel case, Burger reassigned a typesetter in the court's printing room after concluding he was responsible. In other words, the leaker could be someone completely unexpected.

Washington was abuzz with similar speculation four years ago, when a writer The New York Times described as a "senior administration official" penned an anonymous essay describing Trump as erratic and amoral. Rumors that the writer was the chief of staff at the White House or member of Trump's Cabinet circulated.

The writer, it turned out, was a former chief of staff at the Department of Homeland Security.

Complicating all of the theories was a lack of clarity about the opinion leaker's motives.

"I just don’t see someone leaking early an opinion that many people believed was a strong possibility anyhow," Joyce Vance, former U.S. attorney for the Northern District of Alabama, said on the CAFE Insider podcast this week. "I don’t see how anyone could think that that would move the needle at all."

Vance predicted the court’s internal investigation should be relatively simple, given how tightly the court has generally held such draft opinions.

"That just makes me think it’s so unlikely that a clerk would have been the one to leak this," she said. "What I wonder is if we would get to the bottom of this mystery.”

This article originally appeared on USA TODAY: Who leaked Supreme Court draft opinion on Roe v. Wade to Politico?