Who leaked the Dobbs draft?

Of course, the Justice Department can’t be faulted for not caring enough about the leak if Chief Justice John Roberts and Supreme Court Marshal Gail Curley aren’t keeping their own eyes on the prize. Did they obtain the phone records and emails of all clerks? Did they pursue those materials through other means if the clerks balked? Did they have all clerks, before ending their service at the end of the term, sign affidavits swearing that they didn’t leak? (Although it’s unclear whether the leak could subject someone to criminal prosecution, lying on such an affidavit would be a separate offense.) If the answer to any of these questions is no, why not?

At base, the leaker must be found to avoid setting the precedent that decision drafts can be leaked with impunity. Such a precedent would threaten confidence in the Court at a time when public approval is relatively low (but similar to the wake of the Obergefell v. Hodges same-sex marriage decision in 2015). It’s one thing to disagree with a ruling, quite another to facilitate real-time second-guessing of judicial decision making.

The leak investigation has to be given priority. The leaker—whoever it is, however he or she did it, and whatever the motive—has to face the music.