Chief Justice John Roberts says the Supreme Court will investigate the release of a draft opinion that would strike down Roe v. Wade and called the episode “a singular and egregious breach” of trust.
“This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here. I have directed the Marshal of the Court to launch an investigation into the source of the leak,” Roberts said in a statement Tuesday.
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. “The work of the Court will not be affected in any way. We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court.”
The court’s public affairs office confirmed the document published by Politico is “authentic,” but stressed that “it does not represent a decision by the Court or the final position of any member on the issues in the case.”
According to the draft authored by Justice Samuel Alito, the court would overturn Roe v. Wade’s holding of a federal constitutional right to an abortion.
It appears that five justices would be voting to overturn Roe. Roberts did not want to completely overturn Roe v. Wade, meaning he would have dissented from part of Alito’s draft opinion, sources tell CNN, likely with the court’s three liberals.
That would mean that the five conservative justices that would make up the majority overturning Roe are Alito and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
The court did not comment on the potential breakdown of how justices would vote. Roberts did not respond to questions from CNN at his house Tuesday morning.
Will the marshal find anything?
It’s unclear how extensive or fruitful the in-house investigation will be or how much experience court employees have in finding the source of a leak.
The marshal of the Supreme Court oversees about 260 employees, including the court’s police department, which has the power to arrest people on the grounds of the court. The current marshal is Col. Gail A. Curley, who began serving as the court’s 11th marshal in 2021.
Typically, the people with access to such a document would be the nine justices and the people working in their chambers, including their clerks and staff – nearly 50 people in all.
As for not inviting the FBI or an outside agency, Roberts has long guarded the independence of the third branch of government, keeping the legislative and executive branches out of the court’s affairs.
Reaction is swift
The draft opinion’s leak sent shockwaves through Washington, with the news of the potential overturning of Roe drawing outrage from Democrats that rivaled the anger expressed by Republicans over the breach of the high court’s secrecy norms.
President Joe Biden said Tuesday that a woman’s right to have an abortion is “fundamental” following Politico’s report, and urged Congress to pass legislation codifying Roe, which was decided in 1973 and established a constitutional right to abortion before fetal viability.
“Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned,” he said in a statement.
Congressional Democrats issued similar statements Tuesday related to the draft opinion, but their counterparts zeroed in on the purported leak, blasting the move as an effort to change the court’s final decision in the matter.
“Somebody, likely somebody inside the court itself, leaked a confidential internal draft to the press, almost certainly in an effort to stir up an inappropriate pressure campaign to sway an outcome,” Senate Minority Leader Mitch McConnell said in remarks on the Senate floor. The Kentucky Republican also called for a probe into the leak.
Following the publication of the draft late Monday, protesters descended on areas outside the Supreme Court and have remained there through Tuesday afternoon. Many have held signs in support of abortion rights, and the crowd has occasionally chanted in opposition to the draft ruling, including by saying: “Hey, hey, ho, ho, Samuel Alito’s gotta go,” and “Abortion rights are under attack, what do we do, stand up fight back.”
This story has been updated with additional details Tuesday.