"The Supreme Court announced on Thursday that an internal investigation had failed to identify the person who leaked a draft of the opinion overturning Roe v. Wade...."

"In a 20-page report, the court’s marshal, responsible for overseeing the inquiry, said that investigators had conducted 126 formal interviews of 97 employees, all of whom had denied being the source of the leak. Investigators also found no forensic evidence by examining the court’s 'computer devices, networks, printers and available call and text logs,' the report said. Several employees of the court did admit to investigators, the report said, that they had told their spouses or partners about the draft opinion and the vote count in violation of the court’s confidentiality rules. But the investigation did not determine that any of those discussions led to a copy of the draft opinion becoming public....."

The NYT reports.

"Supreme Court investigators probing the May leak of Justice Samuel Alito’s draft opinion overruling Roe v. Wade have narrowed their inquiry to a small number of suspects..."

"... including law clerks, but officials have yet to conclusively identify the alleged culprit, people familiar with the matter said...."

The Wall Street Journal reports.

A leak about the leak. Great.

Who does not presume the investigation is over and the results are being suppressed?

Instapundit writes: "IN THE LATEST YEAR-END REPORT ON THE JUDICIARY, Chief Justice John Roberts talks about judicial independence, but says not a word about the unprecedented leaked decision in Dobbs. Allegedly there is an investigation, but at this point it’s hard to believe, and that alone does little for the Court’s — or Roberts’ — credibility."

If they don't even refer to an ongoing investigation, I presume the investigation is over and the hope is that we'll forget that the leak ever occurred. We have an institution investigating itself over its own secrecy, and it's being secretive about its investigation and its secrecy.

"Justice Samuel A. Alito Jr. denied an allegation from a former antiabortion activist that Alito or his wife disclosed to conservative donors the outcome of a pending 2014 case..."

"... regarding contraceptives and religious rights. The New York Times reported Saturday that Rob Schenck, who on his website identifies himself as a 'once-right-wing religious leader but now dissenting evangelical voice,' said he was told the outcome of the case, Hobby Lobby v. Burwell, several weeks before it was announced. Schenck said a conservative donor to his organization relayed the information after a dinner with Alito, who wrote the majority opinion in the case, and the justice’s wife. But the donor, Gayle Wright, told the Times and affirmed in an interview Saturday that the account given by Schenck was not true, and Alito issued a statement denying it as well."

WaPo reports.

Whatever the truth is about whether Schenck really heard what he says he heard from Wright and whether Wright is accurately telling us now what she got from Alito and what she relayed to Schenck at the time — and it's easy to imagine that all 3 are kinda-sorta telling the truth! — I'd just like to say that there's a big difference between leaking the draft opinion — as was done with Dobbs — and revealing the outcome of a pending case.

With the leak of the draft opinion in Dobbs, we saw the text and we saw it before the opinion was released. With this report that the outcome was revealed in advance in Hobby Lobby, we're hearing about it after the fact and second hand. 

And I wonder if there have been other times when leaks like this one — assuming it happened — have occurred. Where there is no published draft opinion to show the leak to us all, there needs to be not only a leak, but a leak to someone with a motivation to talk about it. 

This too is a leak, and, again, it’s from Politico.

"Alito’s draft opinion overturning Roe is still the only one circulated inside Supreme Court."

"The last time Yahoo News/YouGov asked about confidence in the court was in September 2020, a few days after liberal Justice Ruth Bader Ginsburg died..."

"... and a few days before Trump nominated conservative jurist Amy Coney Barrett to replace her. Back then, 70% of registered voters said they had either 'some' (50%) or 'a lot' (20%) of confidence in the court, and 30% said they had either 'a little' (23%) or 'none' (7%). But the new survey of 1,577 U.S. adults, which was conducted immediately after the leak, found that... just half of voters still express some (37%) or a lot (14%) of confidence in the court, while the other half now expresses either a little (24%) or none (26%).... ...Americans are divided over whether the leak is a 'good thing' (30%), a 'bad thing' (37%) or something they’re not sure about (33%).... [F]ar more Republicans consider the leak bad (59%) than good (19%), and far more Democrats consider it good (50%) than bad (20%)."

Yahoo News reports.

Surprising that there isn't more disapproval of the leak, isn't it? Well, actually, I'm not surprised, because I, myself, felt rather impassive about it. I'm sure I'd have said the leak was "bad" if they'd polled me, but I'm unmoved by the histrionics about it, and I'm not that roused by the sanctimony about the Court's entitlement to dead secrecy.

"We use stare decisis as a mantra when we don’t want to think."

Said Justice Clarence Thomas, quoted in "Clarence Thomas says he worries respect for institutions is eroding" (WaPo). 

Some of the people who think think about the way stare decisis preserves respect for the Court.

Thomas worried about the "different attitude of the young" and how they bully the Court when they don't get the outcome they want, but how deferential to authority should young people be? 

When you impugn stare decisis as a "mantra," you call for more analysis and criticism and less passive obeisance to authority. I would say that's inconsistent with a demand that we accept the outcomes handed down by the Court from on high. That too is obeisance.

The Court seems to be withdrawing a right that was in place for 50 years. You can't expect people to humbly receive the new version of what the law is. Did you think we'd all sit quietly reading a hundred pages of careful reasoning and be impressed by the cogency of it all? There's a good chance that no one has dutifully read every word. We jump into guesses and theories about what's really going on.

It's not just these kids today. People have never regarded the Supreme Court as an oracle of truth. We can and should criticize the Court. It's not bullying!

"When Justice Stevens wrote his opinion in Chevron, he meant to solve a knotty problem, but he did not mean to produce a major ruling, or even to make any change in the law."

"Justice Harry Blackmun’s private papers, which are now public, show that members of the Court found the case to be highly technical and difficult to decide.... Revealingly, Chevron had hardly any influence on the Supreme Court in its first years. Everything changed after Justice Scalia joined the Court in 1986 and became Chevron’s champion, urging that it inaugurated a new approach for courts to apply in reviewing the interpretations of administrative agencies. Justice Stevens repeatedly disagreed with him; he insisted that Chevron did not make any big change in the law, and that questions of law were for courts, not agencies. By the early 1990s, Scalia had prevailed: whenever an agency’s interpretation of a congressional enactment was at issue, Chevron was widely understood to give the administrative state a lot of room to maneuver. If you worked at a federal agency at the time, Chevron was your best friend." 

Writes Cass Sunstein in "Who Should Regulate? Cass R. Sunstein The question of whether federal agencies or the courts should have the right to interpret legislation may seem technical, but it significantly affects the power of the government" (NYRB)(reviewing "The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State" by Thomas W. Merrill).

For those who are uninitiated and yet not utterly bored — a small group, I'm thinking — the Chevron case provides — in Sunstein's words — "that when the language of statutes enacted by Congress is ambiguous, federal agencies are entitled to interpret it as they see fit, as long as their interpretations are not unreasonable."

Don't miss this casual phrase: "Justice Harry Blackmun’s private papers, which are now public..."  Was that treacherous leakage? The leakage was by Blackmun, of course, but I'm still asking if making all those notes and drafts public was an example of "the gravest, most unforgivable sin." Shouldn't we have access to these materials to understand why these decisions come out the way we do? Why should we be controlled by the careful wordings and omissions of the final version?

And I see that Chief Justice Roberts referred to Blackmun's papers in the oral argument about overruling Roe last December!

Joan Biskupic wrote about it last December, right after the oral argument, in "Why John Roberts cited the private papers of the justice who wrote Roe v. Wade" (CNN):