A Dobbs leak footnote

I read the documents released by the Supreme Court in its investigation of the Dobbs leak as soon as they were posted on the Court’s site Thursday afternoon. They are posted here. Giving the Marshal’s 20-page report on the investigation a close reading several times over, I commented on it in “Dobbs leaker still at large.”

I raised the question whether the justices had been interviewed in the course of the investigation or treated like the other subjects of the investigation. It turns out I wasn’t the only one left mystified. Quoting one of the same passages turned to, two Washington Post reporters noted in their story:

The report did not indicate clearly whether the justices themselves or others close to them were questioned, and a spokeswoman for the court did not respond to inquiries Thursday afternoon. “The investigation focused on Court personnel — temporary (law clerks) and permanent employees — who had or may have had access to the draft opinion during the period from the initial circulation until the publication,” the report said.

The report’s lack of clarity on this point is pathetic, as was the Court’s nonresponse when asked. In the second of the three documents in the Court’s release Michael Chertoff endorsed the merits of the investigation without addressing this point. Did he notice that the report was unclear or was review of the report beyond the scope of his commission?

In any event, Supreme Court Marshal Gail Curley — to whom Chief Justice Roberts assigned responsibility for the investigation — released a clarifying statement yesterday afternoon:

During the course of the investigation, I spoke with each of the Justices, several on multiple occasions. The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits.

Charlie Savage accurately observes in his New York Times story on the statement:

Ms. Curley did not indicate whether she searched the justices’ court-issued electronic devices and asked them to turn over personal devices and cellphone records, as she did with other personnel. She also did not address whether she had interviewed any of the justices’ spouses, another question that arose after her report was made public.

In releasing the report on Thursday, the court also issued a statement from Michael Chertoff, a former prosecutor, judge and secretary of homeland security, who said he had reviewed the investigation and found it comprehensive.

Please note that in the paragraph below Savage’s quotes from Chertoff derive from the document under his name in the package released by the Court on Thursday:

Mr. Chertoff said that Ms. Curley and her team had undertaken “a thorough investigation,” and that he could not “identify any additional useful investigative measures.” Mr. Chertoff declined to comment on Thursday and again on Friday, referring questions to the court’s press office.

Again, this is pathetic. It raises the further question why the investigation was assigned to the Marshal to begin with. I can speculate that the limits of the investigation, whatever they were, had the object of maintaining the collegiality of a collegial institution, but I don’t know.

The Post story linked above quotes Justice Thomas in remarks following the leak last year at the Old Parkland Conference in Dallas: “I wonder how long we’re going to have these institutions at the rate we’re undermining them. And then I wonder, when they’re gone or destabilized, what we’re going to have as a country.”

Justice Thomas made an equally telling point in another comment not quoted in the current Post story. Justice Thomas assessed that irreparable damage may have been done: “When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity that you can explain it, but you can’t undo it.”

STEVE adds: John Yoo and I go into this story—and ratify some of Scott’s judgments—in our next 3WHH podcast which will be available here shortly. (But if you absolutely can’t wait, it is already up over at Ricochet.)