This story was originally published by the WND News Center.
The Supreme Court’s investigation of a leaker who delivered a copy of the then-unreleased Dobbs opinion that overturned the faulty 1973 Roe v. Wade abortion decision to the media failed to identify the offending person.
And that’s “unsatisfactory,” according to Alan Dershowitz, the Felix Frankfurter professor of law emeritus at Harvard, who wrote a column at the Gatestone Institute, where he is the Jack Roth Charitable Foundation fellow.
The court investigated, said it did not identify the perpetrator, and then closed the matter, he said.
“This is an unsatisfactory resolution to one of the most serious breaches of confidentiality in American history,” Dershowitz explained.
“Let us not underestimate the seriousness of this leak. It apparently encouraged a potential assassin to try to murder Justice Brett Kavanaugh in an effort to change the outcome of the case. It could easily have succeeded in doing so,” he warned. “The failure to discover the leaker will encourage others to engage in actions which they believe are well-intentioned civil disobedience even if it does not involve the disclosure of governmental wrongdoing. The mystery of who leaked this draft decision must be solved.”
He said the court’s own review was destined to fail because the investigator, the court marshal, is not equipped for such work.
“The matter should have been turned over to the FBI or a special counsel appointed by the Justice Department, as was done with the unauthorized possession of classified material by President Joe Biden and former President Donald Trump,” he said. “Let us be clear about one thing: the improper disclosure of the Supreme Court draft opinion, in this case, was at least as serious a breach as the Biden or Trump violations. Neither Biden nor Trump disclosed any classified material or actually endangered the security of the United States. They were dangerous because of the potential improper disclosure, whereas the Supreme Court leak involved an actual disclosure that impacted the High Court in numerous negative ways.”
He cited President Trump’s suggestion to subpoena the journalist who wrote the story and offer the option of disclosing the source or jail.
But Dershowitz said that likely “should be an absolute last resort.”
“Would it be justified in this case? Perhaps,” he said. But, he noted, “The journalist was not at fault for publishing the draft opinion. It was highly newsworthy, and like the Pentagon Papers and other confidential materials that have been published, the journalist receiving them has an obligation of disclosure to the public.”
The court worker who violated protocol, however, doesn’t have an excuse, he said.
“If the source or sources are finally identified, they will probably defend their actions on the basis of a higher good. But noble ends do not justify improper or unethical means, especially if the disclosure might well have threatened innocent lives<” he said.
He explained, “All Americans are the victims of this breach, and both the executive and legislative branches have default roles to play if the Supreme Court cannot do the job properly.”
