When Chief Justice John Roberts announced Tuesday that the Supreme Court will investigate the release of a draft opinion that would strike down Roe v. Wade, he kicked off what will likely be one of Washington’s most unusual leak investigations in recent years.
According to the draft authored by Justice Samuel Alito, the court would overturn Roe’s holding of a federal constitutional right to an abortion.
Roberts called the release “a singular and egregious breach” of trust and said he’s “directed the Marshal of the Court to launch an investigation into the source of the leak.”
It’s unclear, however, how much experience that office has in conducting a probe such as this.
Here’s what we know so far about the draft opinion and the investigation:
When was the draft opinion published and what does it say? The draft opinion was published Monday evening by Politico and was later authenticated by the court. In it, Alito says Roe was “egregiously wrong from the start” and “must be overruled.”
It appears that five justices would be voting to overturn Roe. Roberts did not want to completely overturn Roe v. Wade, meaning he would have dissented from part of Alito’s draft opinion, sources tell CNN. That would mean that the five conservative justices who would make up the majority overturning Roe are Alito and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
What did Roberts say? Roberts, who has long tried to preserve the court’s independence and reputation, said in a statement that the court “will not be affected in any way” by the leak.
“Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court.”
“I have directed the Marshal of the Court to launch an investigation into the source of the leak,” he said.
Who is the marshal of the Supreme Court? The marshal of the Supreme Court oversees about 260 employees, including the court’s police department, which has the power to arrest people on the grounds of the court. The current marshal is Col. Gail A. Curley, who began serving as the court’s 11th marshal in 2021.
It’s unclear what investigative resources the court’s marshal has and how much experience employees have in finding the source of a leak. If the marshal finds evidence of a possible crime, the court can ask the Justice Department to prosecute someone.
Who had access to the draft opinion? Typically, the people with access to such a document would be the nine justices and the people working in their chambers, including their clerks and staff — nearly 50 people in all.
Why didn’t Roberts ask the Justice Department to investigate the leak?
Roberts has long guarded the independence of the third branch of government, keeping the legislative and executive branches, which include the Justice Department and the FBI, out of the court’s affairs. His decision to have the matter handled — at least initially — internally by a force he controls underscores that desire.
A former leader of the US Marshals Service, the agency responsible for judicial security beyond the confines of the Supreme Court, told CNN it would be unlikely that Roberts would ask an executive branch law enforcement agency to investigate the leak, noting the court is not an organization that enjoys outsiders peering in.
The source also described the marshal of the Supreme Court as differing from traditional law enforcement, describing that role as more like a chief administrative officer with oversight of a police department.
What crime is at play? It’s unclear what crime could be investigated and whether the FBI and the Justice Department have the authority to look into a leak that doesn’t have to do with classified or sensitive information.
Moreover, after leading politically sensitive investigations of presidential candidates and a sitting president in recent years, Justice Department and FBI officials are loath to get the bureau involved in what may end up being a political effort to try to affect the outcome of the court’s final opinion in the case.
“Leaks of government information, by themselves, are not crimes,” said Steve Vladeck, a CNN Supreme Court analyst who’s a professor at the University of Texas School of Law. “Usually, leakers are prosecuted for leaking classified information, which this isn’t, or for offenses related to how they obtained the information they leaked.”
“But without one of those hooks, or some kind of financial harm to the government arising from the leak, there’s no federal criminal statute that makes leaking of simply confidential governmental information unlawful,” Vladeck added.
Read more about the investigation here.
In a stunning breach of Supreme Court confidentiality and secrecy, Politico obtained what it called a draft of a majority opinion written by Justice Samuel Alito that would strike down Roe v. Wade.
The draft was circulated in early February, according to Politico. The final opinion has not been released and votes and language can change before opinions are formally released. The opinion in this case is not expected to be published until late June.
The court confirmed the authenticity of the document Tuesday. It also stressed it was not the final decision.
News of the draft opinion sparked reactions across the country. Demonstrators for and against Roe v. Wade gathered in front of the Supreme Court.
Here’s a look at some scenes from outside the court today:
“Compelling.” “Comprehensive.” “A tour de force.”
Abortion opponents saw everything they have hoped for in their decades-long partnership with the broader legal conservative movement in a draft Supreme Court majority opinion disclosed Monday that, if ultimately adopted by the court, would end nationwide abortion rights protections for Americans.
With all the caveats that the draft is not final and the vote count of a majority willing to overturn Roe v. Wade could always change, prominent members of the conservative legal world were thrilled with the approach that Justice Samuel Alito took in the document obtained by Politico after it apparently had been circulated among the justices in February.
“Justice Alito did a tour de force on the history of abortion law that just made it abundantly clear how absurd the idea is that abortion is a fundamental right, rooted in American history and Constitution, in any sense,” said Carrie Severino, the president of the conservative Judicial Crisis Network. “It’s so heartening to know that we finally have a majority of justices on the Supreme Court who recognize the legitimate way to interpret the Constitution.”
Politico published the draft opinion Monday night in a stunning breach of the norms of secrecy that surround the Supreme Court’s inner workings. Assuming the court was following its typical protocols, the justices would have privately taken a vote on their views on the abortion case in question — a lawsuit, known as Dobbs v. Jackson Women’s Health Organization challenging Mississippi’s 15-week ban — after its December oral arguments. Then a justice in the majority would have been assigned to take an initial stab at an opinion.
Until a formal opinion is released — likely in June — it will remain unknown how many more edits and changes to Alito’s reasoning will have been made to shore up a majority, or even if a majority will remain behind overruling Roe.
But longtime leaders of the anti-abortion movement gave full-throated approval of where
Supreme Court draft opinion would overturn Roe v. Wade
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