The Public Has a Right to Know Who Leaked the Dobbs Draft

One reason is that Chief Justice

John Roberts

assigned the Supreme Court Marshal’s Office to conduct the investigation. The marshal’s office oversees the Supreme Court police, which provides security for the building and the justices. But it is totally unequipped to conduct an investigation of this magnitude. It has no authority to issue subpoenas or to immunize witnesses to testify. The tools at its disposal are limited to questioning possible witnesses and asking to review telephone and computer records. There is no guarantee that an intensive investigation would find the leaker or leakers, but it is nearly certain that they won’t be found without one. They have a strong incentive not to come forward: No one could trust a lawyer who engineered or collaborated in such a breach.

Why did the chief justice assign the marshal’s office to conduct this investigation? That raises another question: Is the court fully committed to uncovering the truth?

The most likely suspects are court employees. Guilt may well be a matter of degree. If one law clerk knows that another clerk did it and assisted in the coverup, the former would be complicit in the breach. The same would be true of a justice who knew but didn’t come forward.

Rumors are swirling around the court as to who might be responsible. Some speculate that it was a clerk who wanted to put pressure on a justice to preserve Roe v. Wade. Others theorize that an anti-Roe law clerk who might have wanted to lock in a justice feared to be having second thoughts about joining the majority. Then there is always the possibility that a member of the support staff—say, someone in the printing office—might have been the leaker. The least likely suspects would be the justices themselves, though it isn’t beyond the realm of possibilities that a justice might have implicitly encouraged a clerk to do the deed.

Justice Alito and others concerned about the dangers of the breach should be calling for an outside investigator with the power to issue subpoenas, grant immunity and employ other traditional law-enforcement tactics that are both constitutional and ethical. Congress has the power to legislate such a special investigator. The Justice Department may also have the power to appoint a special investigator, despite the uncertainty over whether the leaking of an unpublished Supreme Court opinion constitutes a crime or merely a breach of rules and ethics. The integrity of the court and the confidentiality of its proceedings are essential aspects of governance. The government has a strong and legitimate interest in determining who violated the rules, who covered up the violation, and who knew about it either before or after the fact.

Politico, the news outlet to which the draft opinion was leaked, may know the identity of the leaker. It claims to have checked the draft opinion’s authenticity before publishing it. (The court later confirmed it.) If investigators question Politico, it will claim journalistic privilege and refuse to identify its source. If the government presses the matter, the courts will decide, weighing the public interest in Politico’s claim of confidentiality against that of the Supreme Court’s.

One might argue—and some justices may believe—that it isn’t in the institutional interests of the court to expose the malefactor. The situation appears stable despite Justice Alito’s worries, and it’s possible that revealing what happened could provoke a greater crisis. But if the leaker goes unexposed and unpunished, what deterrent will there be against future leaks?

Learning and disclosing the source of the leak would strengthen the high court by preventing future breaches and by allaying false suspicions against innocent justices, clerks and other employees. Uncovering the truth is of paramount importance in a democracy. As with the Jan. 6 riots, the American public has a right to know who carried out an attack on a vital institution of government and how.

Mr. Dershowitz is a professor emeritus at Harvard Law School and author of “The Price of Principle: Why Integrity Is Worth the Consequences.”