Supreme Court’s Silence on Abortion Trial Leak Contradicts Gorsuch

Neil Gorsuch did well to raise the lid on the probe into who disclosed the court’s draft abortion judgment. The court hasn’t struck the right balance between secrecy and openness about its inner workings. 

The leak was critical since the court’s internal discussions on cases merit confidentiality.  Even with Gorsuch’s veiled statement, the probe deserves more clarity. 

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The Panel

Let’s first grasp Gorsuch’s comments. He said the chief justice formed an internal panel to investigate. He said the group has been “busy,” hoping they find out soon. 

Gorsuch’s short update was a wealth of information after four months of radio-quiet regarding the “probe.”

Nonetheless, it was unconvincing. Can the justices “hope” for explanations after four months? Why is an “internal committee” investigating? 

Marshal Gail Curley is leading the inquiry. We still don’t know if independent law enforcement or private contractors has been called to aid.

We don’t know if all persons likely privy to the draft opinion have indeed been forthcoming or if investigators utilized legal instruments to compel collaboration.

Roberts termed it a “betrayal” and Gorsuch a “threat” to the judicial process. Clarence Thomas blasted the leaker’s “unthinkable violation of confidentiality.” 

The court would seem to have conducted its investigation with little urgency, at least that’s what the public thinks. Can we settle for a “report”? If the treachery is so bad, please punish the leaker.

While court confidentiality is crucial, there’s no reason for inwardness when investigating a significant breach of confidence that may have been a crime. 

The public has a right to know what resources are being used and the investigation’s progress. The public must know if aggressive measures are being taken to catch the perpetrator. 

Public Trust

If the leak “changed the establishment fundamentally,” as Thomas said, then the public welfare is affected. This is a public issue and should be handled as such. 

Contrariwise, the leak is public because it violated the court’s confidentiality. The other two arms of government are supposed to be political entities; the courts are not. 

The courts have no duty to citizens and, in concept, should be free from pressure from the public. Their mission is not to please a transient majority, but to get the law correct. 


To get the policy right, Supreme Court judges and their staff present tentative views, try to persuade their peers, and sometimes modify their positions when their peers’ arguments are convincing. 

Logic, not popular pressure, should prevail. Confidentiality helps justices’ intellectual integrity, which inspires public trust more than public surveys. It shows that umpires are impartial. 

The leak, meant to increase public pressure, was a grave betrayal. We all need a more general accounting of the efforts being taken to discover and prosecute the leaker.

This article appeared in NewsHouse and has been published here with permission.

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