January 30, 2023

The Supreme Court says it is unable so far to conclude who leaked the Dobbs decision last summer. This comes after an eight-month probe conducted by the court’s marshal and an investigative team.


After eight months of investigations, we still don’t know who leaked the Supreme Court draft decision that overturned Roe v. Wade. Chief Justice John Roberts ordered the court’s marshal, Gail Curley, to oversee the inquiry. And today, the court said that team was unable to identify any person or persons responsible for the unprecedented leak to Politico.

NPR legal affairs correspondent Nina Totenberg is here in the studio. Hey, Nina.


SHAPIRO: It feels like you get to the end of a mystery and the last few pages are missing.

TOTENBERG: (Laughter).

SHAPIRO: Does the report shed any light on what happened?

TOTENBERG: Not really. It goes through in great detail all the things that the investigative team did to ferret out who the leaker was – interviewing 97 court employees, doing extensive follow-up interviews with some people, hiring forensic experts to track who had access to the draft, who printed it out, who emailed it. All personnel who had access to the draft opinion signed sworn affidavits saying that they did not disclose the draft opinion or know anything about who did. And a few did say that they had told their spouses the outcome of the case, but that was it.

At the end of the day, as the report puts it, at this time, by a preponderance of the evidence, it is not possible to determine the identity of any individual who may have disclosed the document or how the draft opinion ended up with Politico. There were some interesting conclusions. It’s unlikely, they said, that the public disclosure was caused by a hack of the IT systems at the court. But the pandemic, and the resulting expansion of the ability to work from home as well as gaps in the court’s security policies, they said, created an environment where it was too easy to remove sensitive information from the building and the court’s IT networks. And that increased the risk of both deliberate and accidental disclosures.

SHAPIRO: So they interviewed 97 court employees. Does that include any of the nine justices?

TOTENBERG: We don’t actually know that, Ari, surprise, surprise. The only thing we affirmatively know, and even that by inference, is that investigators did have some suspicions about certain people. But there simply wasn’t sufficient evidence or even much evidence at all to justify making any sort of an accusation. And in fact, the report went out of its way to essentially exonerate the few people whose names had been floated in social media posts, namely some law clerks for liberal justices.

SHAPIRO: Anyone watching the investigators?

TOTENBERG: Yes. An independent review of the investigation was conducted by Michael Chertoff, a man with lots of appropriate credentials – former Secretary of Homeland Security, former head of the Justice Department Criminal Division, a former judge on the U.S. Court of Appeals for the 3rd Circuit. And he concluded that the court marshal undertook a thorough investigation and that he couldn’t identify any additional useful investigative measures.

SHAPIRO: Does that mean it’s over, and we’re just not going to know?

TOTENBERG: (Laughter) Well, the investigators have left the door open, but they always do that. But unless some new leads are produced, I think this is likely the last you’re going to hear of this, unless, of course, the Republicans in Congress, who have threatened to do so, decide to conduct a probe. And that may be a fool’s errand, but never say never.

SHAPIRO: NPR legal affairs correspondent Nina Totenberg, thank you very much.

TOTENBERG: Thank you, Ari.

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