The Washington PostDemocracy Dies in Darkness

Opinion It will take time to rebuild trust on the Supreme Court after the leak probe

An antiabortion banner in front of the Supreme Court in D.C. on Friday. (Michael S. Williamson/The Washington Post)

Last May, to the astonishment of many, Politico published an authentic draft of the usually leakproof Supreme Court’s majority opinion overturning Roe v. Wade, triggering a political uproar and promises of an investigation from Chief Justice John G. Roberts Jr. On Thursday, to the astonishment of practically no one, the court acknowledged in a statement that it has not yet identified who perpetrated what it called “a grave assault on the judicial process.” Leak investigations are notoriously inconclusive; in this case, Supreme Court Marshal Gail Curley operated with limited resources and without subpoenas, search warrants or lie detectors. According to a 20-page report that accompanied the court’s statement, Ms. Curley’s team scrubbed the court’s computer systems and paper flow and interviewed nearly 100 employees. In response to media requests for clarification, Ms. Curley released a statement Friday noting that she questioned all nine justices, and that she did not determine that one of them — or one of their spouses — was “implicated.” Apparently, she did not extend the inquiry beyond the court and its staff.

The report deals elliptically with what is technically still an open matter. It makes clear that the leak was probably not due to a hack of computer systems. It states generally that it “found nothing to substantiate” the various theories floated, including those that suggested a “strategic” motive for the leak, whether from a conservative justice’s chambers, in an effort to lock in the support of others on the right for the draft’s unequivocal anti-Roe language, or from a liberal’s, in an effort to mobilize outside pressure against such a ruling. The report discounted “speculation, mostly on social media,” that fingered certain law clerks. This was an unusual level of transparency for the institution. Even so, the report concludes that “investigators have been unable to determine at this time … the identity of the person(s) who disclosed the draft majority opinion,” without specifically detailing the evidence investigators did collect and what it might suggest about how this breach occurred.

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Our concern about the court’s failure to solve this mystery is tempered by two considerations. First, as we noted when the leak occurred, the main issue is what the court would do — and, eventually, what it did — regarding abortion rights. Second, leaks help the free press perform its duty to keep the public informed, a duty Politico appropriately performed. Nevertheless, we agree with the court that, as compared with Congress and the executive branch, the judiciary is uniquely dependent for its legitimacy, actual and perceived, on private internal deliberations, insulated from public pressure that leaks such as this one stimulate. As we wrote when the disclosure occurred: “The court works on trust among justices and staff,” and whatever the leaker’s purpose or ideological leanings, the act “represents a dire breakdown in norms and another dramatic sign of the court’s political drift.”

The Curley report described existing nondisclosure rules at the court and alluded to new ones. The main lesson of this episode, though, is that rules are ultimately no substitute for trust — and that it will take a long time to rebuild trust among the justices. The court’s norm of confidentiality intangibly but crucially facilitated constitutional government, much like Judge Learned Hand’s “spirit of liberty,” which, as that jurist put it, resided “in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”

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Editorials represent the views of The Post as an institution, as determined through debate among members of the Editorial Board, based in the Opinions section and separate from the newsroom.

Members of the Editorial Board and areas of focus: Opinion Editor David Shipley; Deputy Opinion Editor Karen Tumulty; Associate Opinion Editor Stephen Stromberg (national politics and policy, legal affairs, energy, the environment, health care); Lee Hockstader (European affairs, based in Paris); David E. Hoffman (global public health); James Hohmann (domestic policy and electoral politics, including the White House, Congress and governors); Charles Lane (foreign affairs, national security, international economics); Heather Long (economics); Associate Editor Ruth Marcus; and Molly Roberts (technology and society).

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