Supreme Court Justice Neil Gorsuch did well to lift the veil, ever so slightly, on the investigation into who leaked the court’s controversial draft decision in the Dobbs v. Jackson Women’s Health Organization abortion case.
Still, the court hasn’t hit the mark in terms of what the proper balance is between confidentiality and transparency about its inner workings.
The breach of trust occasioned by the leak was serious because the court’s internal deliberations on cases before it really do merit confidentiality. The status of the investigation, however, merits far more transparency than it has received, even after crediting Gorsuch’s somewhat cryptic mention of it.
First, let’s understand what Gorsuch said. He noted that “the chief justice appointed an internal committee to oversee the investigation.” He said the committee has been “busy” and that “I very much hope we get to the bottom of this sooner or later.”
Compared to the virtual radio silence about the “investigation” for more than four months since the leak occurred, Gorsuch’s short update was a bonanza of information. Still, it hardly inspired confidence. After four months, can the justices still do no more than “very much hope” for answers “sooner or later”? And why is the investigation only by an “internal committee”?
It is known that the court’s own marshal, Gail Curley, is coordinating the investigation. Yet we still don’t know whether any outside law enforcement officials or even private security outfit has been asked to help, and we still don’t know if all those with potential access to the draft opinion have been cooperative or if the investigators have used any legal tools to impel cooperation.
Gorsuch and Chief Justice John Roberts have both decried what Roberts called a “betrayal” and Gorsuch called a “threat” to the judicial process. Justice Clarence Thomas has spoken quite strongly against the leaker’s “unthinkable breach of trust.” Yet as far as the public can tell, the court appears to have conducted its inquiry without much urgency. And still, can we expect nothing more than a “report”? If the betrayal is so great, will somebody please evince a determination to punish the leaker?
Whereas confidentiality in its case deliberations is essential for the court (more on that momentarily), there’s no reason for insularity when it comes to an investigation of a major breach of trust that could undermine public confidence and that may well have been a crime. Just as with investigations of murders or other high-profile crimes, the public has good reason to expect updates on what sorts of resources are being put to bear and on the basic progress of the investigation. Nobody expects granular details, but the public needs to know if appropriately aggressive efforts are being made to apprehend the perpetrator.
After all, if the leak has “change[d] the institution fundamentally,” as Thomas said, then that change to one of the three branches of government obviously affects the public weal. And for the worse. This is not an internal matter, but a public matter, and it should be treated as such.
Counterintuitively, the reason the leak is a public matter is that it betrayed an essential aspect of the court, which is its confidentiality. We deserve to know more about the investigation because we all deserve for our highest court to be able to deliberate in confidentiality, without political gamesmanship.
The other two branches of government are designed to be political bodies; the courts are not. The courts have no duty to constituents, and in theory should be immune from public pressure because their duty is not to please a temporary majority but to get the law right. And by “right,” it means applying the law as written, not as some outside pressure group or faction of voters might desire.
To get the law right, Supreme Court justices and their staffs offer tentative analyses, seek to convince their colleagues about complicated interpretive matters, and sometimes change their minds when their colleagues’ arguments prove persuasive. Yet it is the strength of the logic that should prevail, not the weight of public pressure. The confidentiality aids the justices’ intellectual independence, which in turn inspires public trust in a way that following public polls cannot. It tells the public that the umpires are trying to be neutral arbiters.
That’s why the leak, obviously intended to bring public pressure into play, was such a terrible betrayal and why all of us deserve a more public accounting about the steps being taken to find and punish the leaker.
