The Supreme Court Leak

The report indicates Curley’s aides conducted formal interviews of nearly 100 Supreme Court employees and focused on 82 people who had access to either electronic or hard copies of the opinion. All denied involvement in the leak.

The report acknowledges in passing that, unsurprisingly, the justices also had access to the draft. However, the report is silent on whether the nine justices on the court last term were interviewed as part of the investigation, which the court called “diligent” and Chertoff described as “thorough.” It’s unclear whether the court or the chief justice would have the authority to force such interviews.

A Supreme Court spokesperson did not respond to a request to clarify whether the justices or their spouses were interviewed.

UPDATE: On Friday the Supreme Court issued the following press release:

Statement from Marshal Gail A. Curley:

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.

In contrast, Ms. Curley’s report described the process for others who work at the Court:

At the conclusion of the initial interviews, each employee was asked to sign an affidavit, under penalty of perjury, affirming that he or she did not disclose the Dobbs draft opinion to any person not employed by the Supreme Court, did not disclose to any person not employed by the Supreme Court any information relating to the Dobbs draft opinion not made public through means authorized by the Court, and had provided all of the pertinent information known to him or her relating to the disclosure or publication of the Dobbs draft opinion. Each employee was then asked to swear to the truth of the statements in the affidavit before a Notary Public. Each of these employees signed a sworn affidavit. A few of those interviewed admitted to telling their spouses about the draft opinion or vote count, so they annotated their affidavits to that effect. If investigators later determine any personnel lied to the investigators, those personnel would be subject to prosecution for a false statement in violation of 18 USC § 1001.

Would a justice betray the trust of colleagues and break the court’s tradition of confidential deliberation? Some have speculated that one of the court’s conservative members or staff might have leaked the draft decision in Dobbs v. Jackson Women’s Health Organization as a way to hold the majority in place. Perhaps, but surely the losing justices on the left or their clerks had a greater motive to throw the proceedings into chaos, potentially disrupting the pending decision and supporting the despicable leftist narrative that the court lacks legitimacy.

It should also be noted that the losers have had difficulty demonstrating appropriate judicial temperament when it comes to the Dobbs case. During oral argument in 2021, Justice

Sonia Sotomayor

asked whether the institution would “survive the stench” if a majority didn’t agree with her that Roe v. Wade should be upheld.

Just recently the justice described her feelings about some of the court’s recent work. Karen Sloan reported two weeks ago for Reuters:

Liberal Justice Sonia Sotomayor on Wednesday told legal educators she felt a “sense of despair” at the direction taken by the U.S. Supreme Court during its previous term, during which its conservative majority overturned the constitutional right to abortion.

Sotomayor, who has dissented in major cases including the abortion decision as the court’s 6-3 conservative majority has become increasingly assertive, described herself as “shell-shocked” and “deeply sad” after that term ended in June.

“Shell-shocked” suggests a kind of personal trauma.

As for former Justice

Stephen Breyer,

who retired shortly after the Dobbs decision, a CNN report last year said that he grew “visibly emotional” when discussing the case. Then there’s Justice

Elena Kagan,

who employed a thinly veiled political attack on the court’s majority last September.

They and all the current justices and staff deserve the presumption of professionalism, but someone at the court has broken a trust. Let’s hope that the leak of a draft opinion is not repeated and that the justices and all the court’s employees have enough respect for the institution and for each other to keep their deliberations confidential.

But incentives matter. If justices now know that they face limited accountability—if they will not be questioned under oath—it is unfortunately more likely that a leak will happen again.

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To Raise Debt Limit, Reform Spending
James Lucier

of Capital Alpha argues in a note to clients today that people are paying too much attention to the challenges of cobbling together a majority in the U.S. House:

Rather, it is a more fundamental problem: There are not 60 votes in the Senate for a clean debt limit extension, and there is absolutely no chance, in our view, that there will be until, saints preserve, a default on U.S. Treasury obligations is only days away.

In fact, we will go one further: There are likely not even 50 votes in the Senate for a clean debt limit extension, since no Republican supports one and Democratic Sen. Joe Manchin (D-WV) has already said he won’t either. There is any number of Senate Democrats who face difficult re-elections in 2024, but we would start our list with Sen.

Jon Tester

(D-MT) and include Sen.

Kyrsten Sinema

(I-AZ) as a Democrat for purposes of this discussion. There’s only one immediate outcome we can see – so let the games begin, and let the Senate gangs start wrangling!

Wednesday morning on

Maria Bartiromo’s

Fox Business program, Sen. Manchin called for a bipartisan effort to craft budget reforms along with a debt limit increase and predicted that the White House would join such negotiations even though the president has so far refused.

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James Freeman co-authored “The Cost: Trump, China and American Revival.” with Ms. Bartiromo.

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