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U.S. Supreme Court justices were questioned, cleared in leak probe

[January 21, 2023] By Nate Raymond and John Kruzel

WASHINGTON (Reuters) -The U.S. Supreme Court's chief security officer on Friday said she spoke with each of the justices in her inquiry into who leaked a draft of its ruling overturning the 1973 Roe v. Wade decision that had legalized abortion nationwide, adding that the probe found no information implicating them or their spouses.

Supreme Court Marshal Gail Curley made the statement a day after the court released a 20-page report based on the eight-month investigation she led that failed to identify who leaked the draft to the news organization Politico.

The report said investigators interviewed 97 court employees but was silent on whether the nine justices who sat on the court at the time of the leak were interviewed, prompting calls from Democratic lawmakers and others for clarity.

"During the course of the investigation, I spoke with each of the justices, several on multiple occasions," Curley said in the statement, released by the court. "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," Curley added.

Curley said on that basis she decided it was not necessary to ask the justices to sign sworn affidavits affirming they did not leak the draft, something court employees were required to do.

The court's membership differed last May from today, with now-retired Justice Stephen Breyer still on the bench and current Justice Ketanji Brown Jackson, his successor appointed by President Joe Biden, not yet sworn in.

Conservative activists have sought to raise suspicions that one of the liberal justices or a staffer for them was responsible for the leak, just as liberal activists have sought to blame conservative justices or their staffers.

Gabe Roth, executive director of the court reform group Fix the Court, said the fact that the report initially omitted the fact that the justices were interviewed "smells fishy."

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The U.S. Supreme Court building is seen in Washington, U.S., June 27, 2022. REUTERS/Elizabeth Frantz/File Photo

"That they were not asked to sign affidavits smells fishier," Roth added.

The leak represented an unprecedented violation of the court's tradition of confidentiality in the behind-the-scenes process of making rulings after hearing oral arguments in cases.

Mark Zaid, a Washington-based lawyer known for representing government whistleblowers, criticized the decision not to require sworn affidavits from the justices or their spouses, saying the court's credibility is on the line with the leak.

"Because the marshal could not even identify the leaker based on a low-level preponderance-of-evidence standard, it raises the question - at least from an appearance standpoint - as to whether a justice played a role in the leak, and that scenario remains unaddressed," Zaid said.

Chief Justice John Roberts directed Curley to investigate after Politico last May published a draft of the opinion authored by Justice Samuel Alito in the case Dobbs v. Jackson Women's Health Organization. The ruling was formally issued in June.

Alito found himself in the middle of another leak controversy in November after the New York Times reported a former anti-abortion leader's assertion that he was told in advance about how the court would rule in a major 2014 case involving insurance coverage for women's birth control.

Rob Schenck, an evangelical Christian minister, told the Times and later a congressional panel that weeks before the ruling was issued he was informed about its contents shortly after two conservative allies of his dined at the home of Alito and his wife.

Alito has said that any allegation that he or his wife leaked the 2014 decision was "completely false."

(Reporting by Nate Raymond in Boston; Editing by Will Dunham)

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