friday, DECEMBER 23, 2022
Not a word has emerged from the Supreme Court about who leaked a draft opinion on overturning Roe v. Wade nearly eight months ago. Now congressional Republicans are preparing to prod the court on its investigation of the breach.
Rep. Jim Jordan of Ohio, poised to become chairman of the Judiciary Committee when the Republican-led House takes control in January, has made it clear that he wants to get to the bottom of the mess, and an aide confirms it remains a priority.
“Dozens and dozens of churches were attacked, dozens and dozens of pro-life crisis pregnancy centers were attacked, protests occurred at Supreme Court justices’ homes, and there was an assassination attempt on Justice [Brent M.] Kavanaugh. But to date, in this Congress, not one hearing in the House Judiciary Committee about that leak. Not one hearing,” Mr. Jordan said recently.
Protesters have gathered outside some of the justices’ homes since the unprecedented leak, and the investigation announced by Chief Justice John G. Roberts Jr. has continued with no public updates.
The Supreme Court did not respond to an inquiry for an update from The Washington Times, but Justice Elena Kagan suggested in September that an update could be announced by the end of that month, according to reports.
“The whole process has been really mystifying,” said Carrie Severino, president of Judicial Crisis Network and a former clerk to Justice Clarence Thomas.
Ms. Severino said Republican leaders of the House Judiciary Committee could ask about the leak investigation during a hearing in the upcoming Congress when some of the justices appear about funding needs.
“Once a year, a select group of the justices come and testify about the funding needs of the judicial branches, and I think that would be the opportunity they have to ask questions,” she said.
Chief Justice Roberts tapped Supreme Court Marshal Gail Curley days after the leak in May to lead the investigation. A former Army lawyer and colonel who oversees the court grounds and security, Ms. Curley had been in the job less than a year when she was tasked with the probe.
The court hasn’t issued an update from the chief justice or Ms. Curley.
Aside from speculation about who leaked the document, legal scholars have debated whether the leak itself constitutes a crime. Some say it could be theft of government property or obstruction of justice if the leaker was trying to affect the outcome of the case. Others say Supreme Court documents aren’t protected by the confidentiality laws that cover other areas of government.
Still, court watchers were aghast when news broke May 2 that the Supreme Court was poised to overturn the decades-old precedent on abortion. It was the first time a full draft opinion had been leaked in the Supreme Court’s 233-year history.
Pro-choice advocates were outraged. Some began protesting outside the houses of conservative justices and sharing the addresses online.
One activist, Nicholas Roske, traveled from California to Justice Kavanaugh’s home in Chevy Chase, Maryland, with plans to assassinate him. Mr. Roske is in federal custody awaiting trial.
The leak did not count as disinformation. Justice Samuel A. Alito Jr.’s official opinion released in June closely mirrored the leaked draft opinion.
Justice Alito became a target after authoring the opinion, one of his former clerks said.
Last month, The New York Times published an article about the Rev. Robert L. Schenck, president of the Dietrich Bonhoeffer Institute, who recently accused Justice Alito of leaking the outcome of the 2014 case Burwell v. Hobby Lobby Stores.
Justice Alito has denied the charge.
“It struck me as a targeted smear against Justice Alito,” said Megan Wold, who served as a clerk to Justice Alito in 2014 and 2015.
She said those who don’t like the justice’s decision in the abortion case are attempting to put public pressure on him, but she doesn’t think it will have any effect.
Mike Davis, president of the Article III Project and a former clerk to Justice Neil M. Gorsuch, said solving the mystery of who leaked the draft opinion shouldn’t be tough, given the small pool of people who had access to the document.
“It would be one of the nine justices, which I seriously doubt it’s one of the nine justices because they have to live with each other for the rest of their lives, one of the four law clerks of each of the nine justices or the two to three administrative aides to each of the nine justices,” Mr. Davis said. “It’s a very small universe of people. It’s almost certainly one of the 12 law clerks to one of the three liberal justices. It’s not that hard to figure this out.”
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