The internal inquiry led by the court’s marshal has limited tools, but there are challenges to opening a criminal investigation.
After a leak of a draft opinion showed that the Supreme Court was poised to end women’s constitutional right to abortion, some Republicans and conservative commentators called for a criminal investigation. But even as Chief Justice John G. Roberts Jr. condemned the disclosure by Politico as “egregious,” he instead directed the Supreme Court marshal to lead an internal investigation. According to a person familiar with the matter, the court has not asked the Justice Department to open a criminal investigation or to lend the marshal support and resources. A Supreme Court spokeswoman this week declined to answer questions about the status of the inquiry, including the number of people assigned to it and what the rules are — like whether it is up to each justice to decide whether to make themselves, their clerks and their relatives available for any questioning or device inspection. Here is a closer look. The Justice Department has a cadre of agents with experience investigating leaks. By contrast, the Supreme Court marshal, Gail A. Curley, is a former national security lawyer for the Army whose office of about 260 employees primarily provides physical security for the justices and the court building. Law enforcement officials for the executive branch have legal tools for extracting information, including the ability to issue grand-jury subpoenas to compel the disclosure of testimony and records, like logs of communications held by phone companies. But it is far from clear that the justices want agents of the executive branch grilling their clerks and relatives and going through the computers in their chambers and the cellphones of their associates. As a matter of constitutional principle, they are a coequal branch of government.
