Report of investigation into leaked draft of abortion decision is coming, Gorsuch says

U.S. Supreme Court Justice Neil Gorsuch said Thursday that the investigation into the leak of the draft opinion in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, is still continuing and that investigators will issue a report of those findings, but he made no promises that the results will be made public.

Speaking at the 10th Circuit Bench and Bar Conference in Colorado Springs, Gorsuch said that the “internal committee to oversee the investigation” appointed by Chief Justice John Roberts “has been busy, and we’re looking forward to their report, I hope soon.” How soon he would not say, nor would he say if that report would be seen by anyone outside of the Court. The conference organizers barred reporters from questioning Gorsuch or other judges participating.

Gorsuch continued, saying, “Improper efforts to influence judicial decision-making, from whatever side, are a threat.” Yes, from whatever side. “They inhibit our capacity to communicate with one another,” he said, chilling the communication between opposing justices, which “improves our final products,” he said. “I very much hope we get to the bottom of this sooner or later.”

Justice Samuel Alito’s anachronistic screed against abortion was leaked in early May of this year, weeks ahead of the final opinion. It showed precious little input from any dissenting justice, and was virtually identical to the final opinion. It’s not out of the realm of possibility that in the weeks between the leak and the decision, there might have been alterations inspired by one of the three liberals. In another universe, with another set of extremist justices and someone who is not Alito.

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Given all we’ve seen from the Court’s extremist, Trump-packed majority, it seems likelier than not that if the investigation determines the leak came from their camp, that report will never see the light of day. That’s how they like to do things, after all. Look at all the radical and democracy-breaking decisions they issued from the shadow docket, without holding any hearings, with no transparency, and in unsigned decisions consisting of one or two sentences.

But if the leak came from the minority—a clerk, a justice—or from support staff—a janitor—we’re a lot more likely to hear about it.

All we know about the investigation is that it heightened already existing tensions in the Court, according to long-time court reporter Nina Totenberg at NPR. Terrified clerks considered getting lawyers, after the court asked them to sign affidavits and open up their cellphones to the investigators. They were in a no-win situation. Assert their right to get a lawyer and not turn over their phone, and they would immediately be under suspicion, a potentially career-ending situation.

On the other hand, the justices themselves are basically untouchable. No one can demand of them that they turn over cellphones or even cooperate with investigators. If one of the justices was responsible for the leak, we will probably never know.

There’s no code of ethics governing the Supreme Court, and the only remedy for dealing with a rogue justice is impeachment. Impeachment, or court reform and expansion. It’s long past time that Congress applied the same code of conduct to the Supreme Court as to every other federal judge.

It’s also time to impose other reforms, including court expansion, to make correct the horrific imbalance Trump and Mitch McConnell created with their court packing.

Schiff: ‘The court is the most unrepresentative body in the U.S.’ and ‘needs to be unstacked’

The effort by a handful of committed Democrats to elevate Supreme Court expansion got a powerful boost this week when Rep. Adam Schiff (D-CA) added his voice. In a tweet Wednesday, Schiff said: “What I care about is that a small number of conservative justices, who lied about their plans to the Senate, intend to deprive millions of women of reproductive care. Codifying Roe isn't enough. We must expand the court.”

He elaborated on that in an interview with CBS News’ Robert Costa Thursday. “I think the court is now the most unrepresentative body in the United States,” He said. “It is a socially conservative court that has moved in a partisan direction to enact a partisan agenda. And it is the result of Mitch McConnell withholding a justice when Barack Obama was president and then forcing through a justice in the waning days before the election with President Trump.”  

Rep. Adam Schiff on why he has called for the Supreme Court to be expanded: "I think the court is now the most unrepresentative body in the United States."

— CBS News (@CBSNews) May 5, 2022

“As a result, the court is now stacked in this socially conservative way and I think it needs to be unstacked,” he continued. 

“Stacked” or “packed” by McConnell and Trump, choose your rhetoric, the result is the same: “the court is now in a position to force on America a policy regarding abortion that America does not agree with, that puts women’s health at risk and I think is disastrous for the country.”

Christine Pelosi talks about the Supreme Court's leaked decision on Roe v. Wade, and what Democrats are doing now, on Daily Kos’ The Brief podcast

The first order of business for congressional Democrats, he said, is to hold the vote on legislation to codify Roe v. Wade. He had a message for the two supposedly pro-choice senators who aided and abetted McConnell and Trump in this, as well as for the anti-filibuster Democrats: “I have to hope that some of these senators that bought these assurances from these Supreme Court nominees when they—before the Senate, under oath—said that they would respect precedent, having seen those promises betrayed, would support legislation now to codify Roe and do what’s necessary to overcome the filibuster to do it.”

That’s not going to happen, not even for as profound an issue as saving reproductive rights. But don’t get discouraged, says another key proponent for expanding the court, Sen. Elizabeth Warren (D-MA). She gave a much-needed pep talk to all of us in Teen Vogue this week. “We may not end the filibuster in the next hour and a half, but it doesn't mean we shouldn't fight to do exactly that. To make change takes not only passion, but persistence. We gotta turn the heat up under it, and keep it up,” she said.

“Those who don't want to make change count on the fact that people get tired. Over Roe v. Wade, we don't have the luxury of getting tired. So if we want to make real change, we've got to push [to end the filibuster].”

She also gave an impassioned argument for expanding the court and for Democrats to keep fighting. “We need to be as visionary as right-wing Republicans have been,” she said. “The Roe decision, at some level, should have shocked no one. They've been working on this for decades. They've been working to stack the Supreme Court, so that it would be a handful of extremists who would deliver one opinion after another that would impose their worldview on the rest of us.”

“The number of justices on the Supreme Court is determined by Congress, that's what the Constitution says,” she pointed out. “Nine is not a magic number. It's been changed seven times before. When a court has gotten this far out of sync with American values, then it's time to expand the court and pull it back toward the middle.”

That’s the fight. It wouldn’t hurt for Schiff, who led the first Trump impeachment, to start making a legislative case for expansion by investigating all five extremist justices for swearing, under oath, to varying degrees of fealty to the idea of stare decisis—Supreme Court precedent. They all lied to different degrees about the respect they would give to the previous courts’ decisions.

They’ve, as Schiff said, squandered the integrity of the court. “[S]adly, most Americans now view the court as they should in the wake of this draft opinion as no longer a conservative legal court but merely a partisan one. The court has sadly become a partisan institution, like every other.”