The Public May Never Know Who Leaked the Roe v. Wade Draft

The marshal of the Supreme Court, tasked with finding out who leaked the draft opinion possibly overturning Roe v. Wade, is a retired Army colonel who is untested in investigations.

Roe v. Wade is the 1973 abortion-rights case that made abortion legal nationwide.

So how will the investigation into the leak proceed?

Who is the marshal conducting the investigation?

Gail Curley is the marshal who will seek to determine the source of the draft leak.

Curley’s usual public duties include calling the court to order. The Supreme Court marshal also oversees the Supreme Court Police Department.

The court’s police department isn’t thought to have ever investigated a leak. The primary jobs of the less than 200 officers are personal protection of the justices and crowd control.

Before Curley joined the court last June, she supervised a team of lawyers and U.S. Army judges as the chief of the National Security Law Division in the Office of the Judge Advocate General.

Additionally, she provides support and legal advice on national-security law to senior Army leadership. In Curley’s current post, she is an officer of the court and isn’t part of the U.S. Marshals Service.

According to court observers, Chief Justice John Roberts’s decision to rely on the marshal instead of a larger agency like the FBI suggests that the agency may want to keep any controversy in-house.

Other law enforcement agencies may have jurisdiction and fall under the District of Columbia city government, the executive branch, the Capitol Police, and Congress.

The marshal only reports to the court itself.

First focus: Who had access

Court experts think the marshal will first focus on the small group of people who have access to draft opinions.

Those with access include the nine SCOTUS justices, the justices’ 36 law clerks, and a minimal number of executive and judicial assistants in each office.

Clerks are under strict orders to not take any written work out of the court building, and some work on computers that cannot be accessed outside the court.

However, staff and justices have been working on laptops at home during the Covid-19 pandemic. Observers say that the work at home may open up the pool of suspects to family members, friends, or roommates.

Draft authenticated by SCOTUS

The draft, written by Justice Samuel Alito, was circulated internally in February. The court confirmed its authenticity.

However, the court stated the draft “does not represent a decision by the Court of the final position of any member on the issues in the case.”

According to the court’s website, Congress has authorized the court police to enforce any state or federal law near or on the court’s grounds.

The website states the “department’s mission is to ensure the integrity of the Constitutional Mission of the Supreme Court of the United States by protecting the Supreme Court, the Justices, employees, guests, and visitors.”

At this point, it is unclear how extensive the investigation may be. The court’s announcement of the inquiry didn’t lay out the parameters of the probe. Neither the Justice Department nor the FBI has been asked to help with the investigation.

No precedent to follow

According to court watchers, there are no other instances in modern times where a chief justice publicly ordered an investigation of an internal leak.

In 1973, Time magazine reported the Roe v. Wade decision before it was announced. At the time, Chief Justice Warren Burger wanted each justice to question their law clerks and even called on lie-detector tests conducted by the FBI.

Chief Justice Burger didn’t have to resort to lie-detectors after it was revealed that a law clerk for Justice Lewis Powell admitted to giving information to a reporter so he could have background information for an article.

The current situation is much more grave, with possible far-reaching consequences.

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