Five takeaways from the Supreme Court’s leak investigation 

The Supreme Court on Thursday revealed the details of an investigation into the leaked draft opinion that struck down Roe v. Wade, a probe that concluded the court was unable to identify who was responsible.

But the more than 20-page report did provide new details about the circumstances of how the investigation was conducted and highlighted shortfalls in the high court’s protection of sensitive documents. It also suggested it may never be able to determine who provided the draft of the opinion to Politico last May, more than one month before the Supreme Court made it official.

Here are five takeaways from the report:

Justices may not have been part of investigation

The marshal’s office indicated it interviewed 97 people as part of the investigation, identifying them as court “employees” or “personnel,” but it remains unclear whether the nine justices that sit on the bench were also interviewed.

The New York Times reported in November that an anti-abortion activist said he was told of the outcome of the landmark 2014 Hobby Lobby case, which involved contraception and religious rights. That opinion was written by Justice Samuel Alito, who also authored the Dobbs opinion.

Alito has publicly denied allegations he leaked the Hobby Lobby decision. The investigators indicated they could not verify any claims of “any individual” being tied to the Dobbs leak.

“Investigators also assessed a wide array of public speculation, mostly on social media, about any individual who may have disclosed the document,” the report read. “In their inquiries, the investigators found nothing to substantiate any of the social media allegations regarding the disclosure.” 

Some law experts said it would have been unusual for the justices to have been questioned. 

“It's hard to imagine the marshal questioning the justices, because it's so delicate,” said Carl Tobias, Williams Chair in Law at the University of Richmond. “On the other hand, they may have talked among themselves and maybe even had meetings as a group. But I don't think that any investigation probably was done in any detail of them.”

A Supreme Court spokesperson did not immediately return a request for comment.

Nearly 100 people had access to draft opinion

The report indicates the leak was likely not the result of a hack and perhaps originated from the nearly 100 employees who had access to the draft opinion when Politico published it.

The report states that 70 unique users were electronically sent the draft opinion on Feb. 10, nearly three months before it was made public via the leak. 

Eight employees received it electronically on March 22, and four others received the opinion on undisclosed dates.

As one of its seven public recommendations for preventing future leaks, the marshal recommended the court tailor distribution of draft opinions and other sensitive documents.

Roberts taps former DHS secretary for review

The report reveals that Roberts tapped former Homeland Security Secretary Michael Chertoff to conduct an independent review of the investigation. 

Chertoff, who served under former President George W. Bush, described the court’s investigation as “thorough.”

“Throughout my review, the investigators were transparent, cooperative and available to answer my questions about the process,” Chertoff said in a statement. “At this time, I cannot identify any additional useful investigative measures.”

Jared Carter, an assistant professor at Vermont Law and Graduate School, said Chertoff’s review helps “avoid the appearance of the fox guarding the henhouse or improprieties.”

Court confirms it searched employee phones, laptops

The marshal in the report detailed extensive efforts to identify the leaker, including reviewing court-issued laptops and mobile devices from personnel with access to the draft. 

Employees requested to do so also provided call and text records on personal devices, according to the report. The 97 employees interviewed all denied disclosing the opinion and signed sworn affidavits, although some admitted to telling their spouses about the draft. 

Investigators also probed connections between court employees and reporters, in particular contacts made with Politico.

“Investigators continue to review and process some electronic data that has been collected and a few other inquiries remain pending. To the extent that additional investigation yields new evidence or leads, the investigators will pursue them,” the report stated. 

Sensitive documents not always tracked by high court

Investigators also attempted to track who printed the draft opinion, but they were only able to discover “very few” instances.

The marshal’s office blamed that on the many printers that were not tracked on the court’s networks and others that were connected but did not have logging capability.

“The pandemic and resulting expansion of the ability to work from home, as well as gaps in the Court’s security policies, created an environment where it was too easy to remove sensitive information from the building and the Court’s IT networks, increasing the risk of both deliberate and accidental disclosures of Court-sensitive information,” the report states.

Two employees without electronic access to the draft accessed printed copies, according to the report. Thirty-four people with electronic access said they printed out copies, and four others were unsure.

The report further indicates that investigators conducted a fingerprint analysis of an “item relevant to the investigation” but that it did not match any “fingerprints of interest.”