SCOTUS Leak "Investigation" Shows Longstanding Need for Real Oversight

Immediately following the leak of its draft opinion in Dobbs v. Jackson Women’s Health last spring, the Supreme Court in a press release described the incident as an “egregious” breach of trust. Chief Justice John Roberts directed the marshal of the Supreme Court to investigate the leak. That investigation resulted in a report, issued earlier this year, that did not uncover the source of the leak.

This result did not surprise me. As the inspector general of the Department of Justice and acting inspector general of the Department of Defense for many years, I was often asked to conduct leak investigations. They are notoriously difficult to resolve.

Not all leaks are as egregious as this one. Many do not warrant a full investigation or the upheaval such an investigation can cause to an organization, particularly given that they are rarely successful. But this one clearly did, because the leak damaged the integrity of the Court and its decision-making process, which the Court recognized.

Unfortunately, the leak investigation it conducted demonstrates how not to conduct a leak investigation. It also illustrates, again, the need for internal oversight at the Court, which should have a better permanent capacity to police itself by more credibly investigating alleged misconduct and by identifying faulty procedures proactively.

The first problem in the Court’s leak investigation was whom the Court asked to conduct it. The marshal of the Court, Gail A. Curley, is responsible for overseeing the Supreme Court building’s operations, providing security for the justices and the building, disbursing payrolls, and managing the courtroom, including calling it to order. Curley is a former Army lawyer who does not have experience or expertise in conducting this type of complex investigation.

Even more problematic, the marshal did not have the necessary independence to conduct the investigation. In essence, she was asked to investigate her bosses, the justices, who are in the universe of potential leakers. They supervise her and can fire her. She was conflicted from the start. That is no reflection on Curley or her integrity. Any marshal would have been placed in the same position.