Silence on Dobbs leak probe hurts Supreme Court credibility

ben weingarten
Conservative Opinion

Ben Weingarten

Federalist Senior Contributor; Claremont Institute Fellow
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What happened to the investigation into who leaked Supreme Court Justice Alito’s draft opinion on Dobbs vs. Jackson Women’s Health? The unprecedented breach sparked massive protests, due to the opinion showing the Court was ready to overturn the landmark abortion ruling from Roe v. Wade. It even led to Congress passing a bill to bolster security for members of the Court and their families. Despite this, the American people have heard little to nothing about the progress of the probe. Straight Arrow News contributor Ben Weingarten says the lack of transparency threatens to cause permanent damage to the Supreme Court’s reputation.

Now the universe of people who could have obtained and leaked the opinion – described as “a person familiar with the court’s proceedings” in the Dobbs case – is small. If the Court doesn’t know by now who leaked it, isn’t this rank incompetence? If the Court does know who leaked it but is sitting on it, how could we see this as anything but political?

What could be more important to protecting the Court’s integrity and credibility than to show it has zero tolerance for and will stop at nothing to punish the person responsible for such a devastating attack on the Court’s ability to do its most basic duty–deliberately, discreetly, and insulated from political pressure and intimidation?

Silence on the probe only compounds the error of not ruling immediately in the wake of the leak, which fueled — what else — but a campaign of political pressure and intimidation, including an assassination plot against Justice Brett Kavanaugh.

Does the Chief Justice, so attuned to public opinion about the Court, think the probe can be dismissed as some kind of internal matter to be handled privately and to fade away? Are one or more justices involved in the leak? Could that explain Roberts’ silence?

The longer he keeps mum, the greater the speculation will grow.

Chief Justice John Roberts called the leak of Samuel Alito’s draft Dobbs opinion an “egregious breach.”

So what does he call it when we have no earthly idea if the person responsible for the “egregious breach” is being brought to justice?

The AP asked SCOTUS a bunch of questions about the leak – two months after the investigation had been announced — including whether it was still investigating it. The Court answered none of them.

Already there were lingering questions about the parts of the probe we did know something about.

We don’t know why the Supreme Court’s marshal was tabbed to lead it, nor if she had the resources to get the job done. We don’t know what the probe entailed beyond the fact, reportedly, the Court was asking clerks for cell phone records and to sign affidavits in connection with the probe, and that the marshal collected electronic devices from some Court employees. 

We don’t know whether the Court will announce the findings of its investigation – starting with who the leaker was – nor the punishment the leaker will face, and what the Court will do to ensure a leak like this never happens again.

Now the universe of people who could have obtained and leaked the opinion – described as “a person familiar with the court’s proceedings” in the Dobbs case – is small.

If the Court doesn’t know by now who leaked it, isn’t this rank incompetence? If the Court does know who leaked it, but is sitting on it, how could we see this as anything but political?

What could be more important to protecting the Court’s integrity and credibility than to show it has zero tolerance for and will stop at nothing to punish the person responsible for such a devastating attack on the Court’s ability to do its most basic duty: Deliberate, discreetly, and insulated from political pressure and intimidation.

Silence on the probe only compounds the error of not ruling immediately in the wake of the leak, which fueled — what else — but a campaign of political pressure and intimidation, including an assassination plot against Justice Brett Kavanaugh.

Does the chief justice, so attuned to public opinion about the Court, think the probe can be dismissed as some kind of internal matter to be handled privately, and to fade away?

Are one or more justices involved in the leak? Could that explain Roberts’s silence?

The longer he keeps mum, the greater the speculation will grow. 

Surely the chief justice doesn’t think fostering this speculation is in the interest of the Court as an institution, which he claims to care so deeply about?

Of course the Chief Justice’s past attempts to protect the Court as an institution did nothing of the sort, either. Remember, he rewrote Obamacare as a tax to save it. 

He failed in his attempt to split the baby in issuing a similarly tortured Dobbs concurrence, while also failing to flip Justice Kavanaugh towards his favored position. And he’s pursued an “incrementalist” approach in many of his rulings, not following the law to its logical conclusion, if in his view the results would be too jarring, or not deferential enough to precedent, no matter how wrongheaded.

For this institution defender, continued silence on the Dobbs probe leak will perpetuate the damage of the “egregious breach” the longer it persists.

This is about more than meting out justice to an individual for a single act. That act was, in Chief Justice Roberts’s own words, a “betrayal of the confidences of the Court” –  a singular blow against this most hallowed of institutions.

When is Chief Justice Roberts going to act like it?


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