Should an institution like the U.S. Supreme Court objectively investigate itself after wrongdoing is discovered? And why should we care about this?
After the Politico website posted Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization last May, Chief Justice John Roberts asked the court’s marshal, Gail Curley, to determine who may have leaked it and why. The draft opinion was clearly explosive: The six-justice majority voted to overrule the iconic 1973 decision in Roe v. Wade, guaranteeing a woman a constitutional right to abortion under certain circumstances. Two months later, the final decision was almost a mirror image of the draft.
Curley’s report, which was released on Jan. 19, begins with a preliminary statement by the justices themselves, followed by former Homeland Security Secretary Michael Chertoff’s confirmation of its findings.
Curley states that she and her team were unable to identify who may have leaked the draft, something the justices call an “extraordinary betrayal of trust.” Chertoff concludes that the report is so “thorough” that he could “not identify any additional useful investigatory measures.”
On its face, the investigation seems exhaustive: Curley writes that she conducted 126 interviews with 97 court employees, though her report does not mention the justices themselves. After a public outcry by those who claimed that perhaps one of the justices leaked the draft, the court revealed that Curley did briefly interview them.
Speaking to the New York Times, one court employee stated that the justices “weren’t subjected to the same level of scrutiny. It’s hard to imagine any of them suffering meaningful consequences even if they were implicated in the leak.”
University of Texas law professor Stephen Vladek notes several weaknesses in the inquiry. First, no one took a lie detector test, and while some data were taken from the staff’s cell phones, not everything that was available on all their devices was examined. Second, the marshal’s team did not interview anyone outside the court. Curley curiously writes that “while investigators and the court’s IT experts cannot absolutely rule out a hack, the evidence to date reveals no suggestion of improper outside access.”
But how accurate is the marshal’s report, and were the justices subjected to the same “thorough” investigation as court employees? After all, investigators were highly deferential to the justices, who were not subject to the same degree of questioning and probing of data from their electronic devices as the staff.
Should the court have considered having an investigation by an independent investigator who did not work in the building, or engaging a permanent inspector general, as has happened in executive branch agencies?
These questions arise in light of a rather odd statement the court itself makes in the introduction to the report: “The leak was no mere misguided attempt at protest. It was a grave assault on the judicial process.” The court seems to suggest that whoever leaked the draft did so because they wanted to stir up the public’s anger against the justices in a way that would somehow force them to change their vote. That is, someone who advocates a woman’s constitutional right to an abortion.
The court discounts the idea that an opponent of Roe may have done so to ensure that the six justices in the majority, once they were identified, would not change their vote.
And yet, because no one knows who leaked Alito’s draft opinion, it is wrongheaded to point fingers at the pro-choice advocates or the anti-abortion proponents. Which leads back to the two questions initially posed at the beginning of this piece.
The answer to the first is no, an institution, no matter whether political, judicial, commercial, educational, or whatever, can fairly investigate itself. The court needs an inspector general because, in responding to the second question, we care because we must have trust in our governmental institutions. We are living in a time when public approval ratings of the president stands at 46 percent and Congress at an astounding 26 percent. Do we want the court to reflect the same negativity?
Probably not. But in fact, it does.
Once the draft opinion was leaked, the court’s approval rating precipitously dropped, according to a Gallup Poll, from 53 to 40 percent. Historically, the Supreme Court’s approval rating always hovered around two-thirds favorability. An independent inspector general’s investigation may well help improve the public’s trust of the court.
Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for more than 40 years.
