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Justice Alito Knows Who the Leaker is, and He’s Angry
I’m extremely disappointed about the conclusion of the investigation regarding the leak of Justice Samuel Alito’s draft opinion on Roe v. Wade. And it’s clear that Alito is very angry, too, and I believe he has a right to be. This decision cannot stand, shouldn’t stand, and I think the justice is endeavoring to make sure it doesn’t. Let’s look at the reasons, and why I think this investigation is not over.
Alito has revealed his opinion that he knows who the leaker is at this particular time. He gave the marshal’s investigation time to conclude, and after nine months, I think he believes she was not properly prepared to conduct this investigation. He says:
Alito says the Supreme Court marshal tasked with investigating the leak ‘did a good job with the resources that were available to her’ and ultimately agrees that the evidence from the investigation was insufficient for a public accusation, according to an interview with the Wall Street Journal.
I believe Alito is suggesting that the marshal did not only have inadequate resources materially, but he may also have believed that she did not have the experience to conduct this type of investigation.
He also reminds everyone that the lives of the Justices were threatened, although he doesn’t feel physically threatened:
Alito said he doesn’t feel ‘physically unsafe’ because he’s ‘driven around in basically a tank, and I’m not really supposed to go anyplace by myself without the tank and my members of the police force.’
Does anyone else detect the irony (and underlying anger) in his comment?
And then there is this comment:
The justice declined to comment specifically on that matter but argued there was a ‘concerted attack on the court and on individual justices,’ adding that the pattern is “new during my lifetime.”
‘We are being hammered daily and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense,’ Alito said, adding, “If anything, they’ve participated to some degree in these attacks.’
The homes of the Justices are still being picketed, disrupting not only their lives but the lives of their families and friends. Merrick Garland claims that the picketers should be allowed to continue in the name of free speech, since he believes that the DOJ is providing adequate protection.
Justice Roberts has a reputation for avoiding controversy about the Court. I propose that he didn’t open the investigation to better-qualified people, because it would draw out the issue; I also think that he might not have wanted to know who did it (since it could have been a Justice), but there was the potential for learning how inadequate the security of SCOTUS was. The result, of course, would have also reflected not only on the Court, but on him personally.
In some ways, Alito may be trying to pressure Roberts to re-open the investigation to more qualified people. At the very least, if the leaker is still employed by the Court, that person must be feeling some discomfort at Alito’s comment. And if identified, he or she should be fired.
I think Justice Alito is not ready to give up on identifying the leaker. The final report did have this to say:
The report indicated that there was little to be done to solve the case but still open avenues to pursue. [my italics]
Let’s hope that Roberts shows some guts and re-opens the investigation to protect SCOTUS, to find the culprit, and to ensure that justice is finally done.
Published in Law
Or she deliberately failed. Which is what I assume.
Who or what is the “organized bar”?
Because if I read him right, he’s basically accusing the DoJ of aiding and abetting these attacks.
Which, of course, is correct.
But to say that out loud . . .
Do you think she was “pressured” to fail, Drew, or she chose to fail?
Pressured to fail and then made the choice to give in to the pressure. Or heck, perhaps saw herself as above the law. Like so many political appointees.
Let’s not forget that a decision was made (by whom? Roberts?) not to make this a criminal investigation. That decision is likely above the marshal’s pay grade, but, once it was made, the investigation was hamstrung. When Alito references “the resources available to her,” he is flagging the fact that avenues available in a criminal inquiry were not available here.
Thanks for clarifying that to us! I suspect Roberts did that, but why?? Did he think the culprit would be more likely to confess?
“Organized bar” is probably the State/District Bar Associations or similar. They are generally responsible for licensing and disciplining lawyers (a.k.a “admitted to the bar.”). The DOJ would also be involved with removing and charging the protestors at the houses of the Justices. Both organizations have failed.
This is speculative, but it’s probably a combination of not wanting to push the envelope as to whether a “crime” was committed and Roberts’ aversion to controversy that you noted above. It appears a decision was made to use a more “traditional” route (the marshal) than break ground by charging a federal offense. In that sense, it looks like Roberts was unwilling to pull out all the stops by, for example, bringing in the FBI.
Regarding Alito’s comment as to the identity of the leaker, he undoubtedly discussed this with his clerks, who would have had considerable interactions with other clerks. My guess is that this produced a strong suspect in someone who would have done this on ideological grounds.
Great points, Hoyacon. Roberts infuriates me. There is nothing “traditional” that is going on, and instead of protecting his Justices and the Court in every possible way, he chickens out. An interesting speculation on potential discussions of his clerks with others. That would make sense. I wonder how they see what I consider to be a flawed investigation.
The only “organized bar” with sufficient clout nationally to defend the Court would be the American Bar Association, because, remember, the local D.C. Bar Association is the entity which reinstated the law license of that FBI lawyer, after his conviction of altering a FISA application so as to further the illegal surveillance of Trump ally Carter Page.
But as the ABA has long ideologically aligned with the radicals, I have little expectation that it will defend this Court (other than to favor Kagan, Sotomayor, or Kantanji “What’s a Woman?” Jackson).
Ed. to add details
I agree. Not gonna happen.
I don’t listen to all that many podcasts, but I did listen to this one between Steven Hayward and Judge Carlos Bea. What a great fellow and a great personal story. Why isn’t he already on the Supreme Court?
At one point, though, they did say–in regard to the leak–that it’s hard when any clerk could print out such a thing and give it to anyone, to figure out who the miscreant may have been.
I can testify, from personal experience, that the medical establishment has been dealing with such matters–when it comes to HIPAA and private ‘red flag’ medical information–for decades.. And we had to come up with technology solutions to mitigate them. And dozens (perhaps more) private companies were happy to provide the secure solutions which we could purchase at great expense in order to do so.
There should be no expectation that anyone can simply “print out” the details and give them away.
The Supreme Court should be keeping track of those with authorization to print anything. Perhaps all case review should be online. Close off the CD burning. Register and track the mobile phones. Require all USB drives and connections to be encrypted and authorized. Same for email–encrypted, monitored, and tracked. Watch everything.
Is it inconvenient? Maybe. But I can’t imagine that Justices of the Supreme Court are any more intimidating or obnoxious than most doctors when they’re told what to do. As the late Mr. She used to say, “who’s in charge here, you, or the chemicals?”
Trust me. When it comes to hospitals, and when details of a patient’s personal information or treatment are revealed, whether by design or inadvertently, the subsequent investigation, and the way in which the federal gubmint jumps on it with a view to fining or closing down the institution involved, are neither slow nor pretty.
The authorities can move fast and dispositively, when they think they need to.
I’ve been there.
Excellent input. I think unfortunately that SCOTUS may have taken great pride in the fact that everything stayed within the court. Maybe too much pride. Times have changed, though. Your guidance sounds great; I hope thay have plans to take those steps, She.
BTW, I do realize that I’m saying Alito knows who the leaker is because I’m assuming he’s basing his conclusion on more than rumor. There is apparently no “evidence” of the leak, as @she indicates, but I want to believe that he wouldn’t make his statement without something defining. I could, of course, be wrong.
Someone pointed out that Justices of the Supreme Court do not do national interviews without measuring every word in what they say. He also pointed out that Alito wouldn’t give such an interview on this without the concurrence and tacit approval of at least some of his colleagues. Hell, I’d imagine that the Chief would have to give his explicit approval.
Bringing in the FBI … to uncover the truth?
Oh, you sweet, summer child. You’d just get a superior coverup, or at least a coverup with a pedigree.
They already said ahead of time they would make the perp pay, so why would anyone confess?
I actually anticipated such a comment, but decided against going there. You might be right, I suppose, but it’s pure conjecture. It would be the obvious course of action if one wanted to pressure an interviewee, who would then be committing another crime by not being candid.
It’s definitely inconvenient. I’ve operated under such strictures many times in the past. No private USB drives which is enforced as you say by requiring encryption. No cell phones in the lab. VPNs with multi-factor authorization required for remote login. One makes do, unless one is determined to allow unauthorized access
I think too that for a long time keeping secret all draft opinions and the Court’s deliberations was a sacrosanct duty that came with job, and no clerk who breached it could ever expect to keep a law license or get a job.
These days? Woke law grads and activist law firms seem like a match made in . . . our worst nightmares. Look at the lawyers who represented baby-voiced Ford in her fabricated testimony against Kavanaugh. Think they wouldn’t hire the clerk who leaked Dobbs?
This point is very helpful, MWD. Thanks.
The leaker thanks you for your support.
An aggressive investigation/ prosecution — which we’ve seen a lot of these days—could be based on
18 USC 641:
But nobody went there.
I fear that they are beyond shame at this point. I hoped at one point that someone in the FBI would blow the whistle on the twerps on the 7th floor. At least one has. I hoped that more would.
I’m watching Trey Gowdy, and a constitutional lawyer says that Roberts wouldn’t call in the FBI due to the separation of powers. I don’t know if that would be correct, but I’d just as soon have someone other than the FBI do a follow-up investigation.
If our nation is not to be jack booted into a lawless idiocracy, somebody – or some huge bunch of somebodies – needs to say the bit about the DOJ very loudly. ASAP.
I don’t really get that, but they could well be correct. Still, I find it highly questionable that someone couldn’t find a way to turn this into a criminal investigation (see the statute above) if there was truly a will to get to the bottom of this. We have “special” investigators/prosecutors all the time as well. One might almost think that there was a reluctance to do so.
I missed that post! Well done! Although, sad.
Great Post Susan,
Roberts avoids controversy like the plague particularly if it implicates one of his Lefturd colleagues or their causes.He wouldn’t know real justice if it whacked him across the side of his head.
The Left attacks on any issue like a rabid dog, snarling, growling and ultimately ripping the head off it’s opponent if it can, whether it is the right or not.
The Right attacks like a cowardly scared bunny that runs away upon any resistance.
As a result when we have a Chief Justice whose first instinct to look the other way at the slightest Provocation from the Left, the Left’s Rabid Attack tactics ultimately lead to a Justice system afraid to prosecute the Left which leads the Left just to escalate their brazenness and contempt for the Law and the Constitution.
John Roberts is a cowardly disgrace who has pissed on his duty to defend the Constitution at the slightest provocation.
Great Post Susan,
Roberts avoids controversy like the plague particularly if it implicates one of his Lefturd colleagues or their causes.He wouldn’t know real justice if it whacked him across the side of his head.
The Left attacks on any issue like a rabid dog, snarling, growling and ultimately ripping the head off it’s opponent if it can, whether it is in the right or not.
The Right attacks like a cowardly scared bunny that runs away upon any resistance.
As a result when we have a Chief Justice whose first instinct to look the other way at the slightest Provocation from the Left, the Left’s Rabid Attack tactics ultimately lead to a Justice system afraid to prosecute the Left which leads the Left just to escalate their brazenness and contempt for the Law and the Constitution.
John Roberts is a cowardly disgrace who has pissed on his duty to defend the Constitution at the slightest provocation.
This was a double post, but I think worth it!