It's been almost a month since Politico scooped its bombshell leak, an unprecedented revelation of a draft majority opinion in a still-pending Supreme Court case. That leaked draft opinion, penned by the stalwart Justice Samuel Alito in the case of Dobbs v. Jackson Women’s Health Organization, would finally overturn 1973’s infamous Roe v. Wade abortion decision. Alito’s draft opinion does not go far enough, at least as far as the proper pro-life end goal is concerned, but it is a praiseworthy development and an admirable start toward an abortion-free America.
While Democrats and the corporate press...
It’s been almost a month since Politico scooped its bombshell leak, an unprecedented revelation of a draft majority opinion in a still-pending Supreme Court case. That leaked draft opinion, penned by the stalwart Justice Samuel Alito in the case of Dobbs v. Jackson Women’s Health Organization, would finally overturn 1973’s infamous Roe v. Wade abortion decision. Alito’s draft opinion does not go far enough, at least as far as the proper pro-life end goal is concerned, but it is a praiseworthy development and an admirable start toward an abortion-free America.
While Democrats and the corporate press immediately focused on the likely impending de-constitutionalization of the Left’s favorite concocted constitutional “right,” abortion, perhaps just as important was — and still is — the fact that this debilitating leak happened in the first place. If the once-sacrosanct idea of the Supreme Court as a legal, and not a political, institution is to mean anything at all, then the Court cannot be subjected to the Bismarckian “sausage-making” process that afflicts the political branches, including leaks and external lobbying campaigns.
It is simply stunning that we do not yet know the identity of the leaker. Given the small sample size of possible leakers — there are 37 current Court clerks and nine current justices, and the denominator of realistic possible leakers is even much smaller than that sum of 46 — and the urgency with which we might have expected Chief Justice John Roberts to handle this extraordinary assault upon the Court’s independence and legitimacy, I predicted that we would know the leaker’s identity within days.
I was wrong. Perhaps I overestimated the ability of the chief justice, who so famously cares about the Court’s perceived institutional integrity, to swiftly suss out the leaker from a sample size of, generously speaking, 15 realistic suspects. Either way, it is embarrassing for the Court that it is has not yet been able to identify, shame, and punish the leaker who has so grievously wounded the Court’s institutional stature.
This week, CNN reports that Gail Curley, the marshal of the Supreme Court and the woman whom Roberts has tasked with investigating the leak, has asked current clerks to provide cell phone records and to sign affidavits. That’s reassuring to hear, but it also raises an obvious question: just what exactly has Curley been doing for the past four-plus weeks?
There is no reason this should be taking this long. Whether it is phone records, printer records, email correspondence, or anything else, no stone can be left unturned in the quest to identify the Dobbs leaker. This should have been obvious from the get-go — right on May 3, when Roberts formally designated Curley to lead the probe. Every citizen concerned about the Court’s standing in our constitutional order — every citizen who agrees with Chief Justice John Marshall’s famous dictum in 1803’s Marbury v. Madison that “it is emphatically the province and duty of the judicial department to say what the law is” — should be crying foul and demanding answers.
If Curley knew at the outset of the probe that more manpower was required, she should have said so and called for backup. More to the point, in the context of investigating an unprecedented leak in the history of a venerable two-century-plus-old institution, it should not have taken Curley four weeks to discern that acquiring phone records just might be a good idea.
Roberts’ wariness about widening the probe to include not merely Curley and her direct underlings, but other federal governmental actors such as the FBI, is understandable but misplaced. Again, it is impossible to overstate the debilitating nature of this leak. If the leaker is not identified and punished — ideally disbarred and publicly shamed to no end — then future prospective leakers will only be incentivized and emboldened. And the metastasis of a leak culture within the Court’s halls would represent nothing less than the death of the Court as an institution.
There is no way that the Court can function and execute its day-to-day activities if the justices and clerks know their missives might be leaked — period. The imperative is therefore to identify and expose the leaker, even if that requires hauling in the FBI or other federal agents.
The justices’ job from here on out is clear. They must plow ahead, resist this vile public intimidation campaign, and send Roe to the ash heap of history. And sooner rather than later, God-willing and assuming even a modicum of competence from John Roberts and Gail Curley, the Dobbs leaker will be exposed and forever tarnished in the eyes of civic-minded patriots as someone who attempted — and failed — to take down the United States Supreme Court.
Josh Hammer is Newsweek opinion editor, host of “The Josh Hammer Show,” a syndicated columnist, and a research fellow with the Edmund Burke Foundation. Follow him on Twitter @josh_hammer.