THE MYSTERY LEAK OF DOBBS V. JACKSON WOMEN’S HEALTH ORGANIZATION

Thecountry held its breath when Politico leaked the Dobbs v. Jackson Women’s Health Organization draft opinion. The majority decision, written by Justice Samuel Alito, overturned the constitutional right to abortions guaranteed by Roe v. Wade. It was a blow to those who thought the Court would uphold the ruling in Roe.

Fourth-year Zoe Torrey, a board member of Project Reproductive Freedom, was in her Pennsylvania home with her grandmother and aunt when the official decision was released. She describes it as a surreal experience because it was a room full of three generations of women who were equally impacted by the ruling. She noted that her grandmother had been born before Roe v. Wade and now, unfortunately, lives after it. There are many people, like Tor-

by LIZBETH HERRERA GOMEZ STAFF WRITER

rey’s grandmother, that have lived through both case decisions and share concerns for the progression of the Court.

Her concerns were reinforced when the official decision remained practically unchanged from the leaked draft opinion. According to Professor Geoffrey R. Stone of the University of Chicago Law School, there was no significant change because “the Court wouldn’t want to appear like they were bending to public opinion.” The justices don’t want the public to think that they hold any influence on the way the Court hands down decisions because it would only incentivize more leaks. The justices also act under the assumption that their work is kept confidential, so any tentative arguments made in the draft would have ended in the final decision regardless of the leak.

Nonetheless, Chief Justice Roberts, upset over the disclosure of the draft, called for an immediate internal investigation. He feared that the leak had eroded trust in judicial proceedings and wished to restore the legitimacy of the Court. Roberts wasn’t wrong on his assumptions because the public reacted negatively when the initial draft was released and was further upset when the draft proved to be similar to the official decision.

Marshal Gail A. Curley and her staff were tasked with the difficult job of providing the identity of the person(s) involved and failed to do so. They did, however, attempt to shed more transparency on the inner workings of the court by outlining the “Rules and Court Policies Protecting Confidentiality” in their internal investigation report. It covered the code of conduct for law clerks and U.S. Judges, explicitly defining confidential information as anything related to the Court or its employees that isn’t made public, including the outcome of a case and the identity of the author of a majority opinion. Professor Stone, relying on his personal experience as a law clerk for Justice Brennan, made it clear that all law clerks understood the expected conduct; they all knew it was not permitted to discuss anything that occurred behind the scenes.

As such, conversations between the clerks and their justices were kept confidential, unless the justices gave explicit permission to share the details of the discussion. Stone claimed that there was “no doubt whatsoever” that the inner workings of the Court were confidential and so a leak of any sort was unacceptable.

The Marshal and her staff did not think that the expected employee conduct was enough, so after interviewing each of the 97 employees, they were asked to sign affidavits. The justices, on the other hand, weren’t asked to sign sworn affidavits because the Marshal didn’t think it was necessary. Professor Stone believes this was because signing affidavits implies a lack of trust within the circle of justices and a suggestion that they did something wrong. So had the justices signed, it would have been seen as a sign of guilt. Whether or not this was the rationale Marshal Curley used is unconfirmed.

Regardless of who leaked the draft opinion, the ease with which it was done seriously raises questions of security, confidentiality, and trust in the Supreme Court.