Supreme Court Justice Elena Kagan said on Sept. 12 that justices will be updated by month’s end on the progress of an internal investigation into the wintertime leak of a draft abortion opinion that previewed the reversal of 49-year-old abortion precedent Roe v. Wade.
Kagan’s comments came as the Supreme Court prepared to embark on a new term on Oct. 3. High-profile cases scheduled or expected to be heard include a case about the authority of state legislatures to set the rules for redistricting and congressional and presidential elections, a challenge to affirmative action in college admissions, a challenge to the Clean Water Act, a case about a Colorado law forcing a graphic designer to create websites to celebrate same-sex marriage despite her religion-based opposition to them, and a case about California’s efforts to export its agriculture policies to the rest of the country.
“I don’t know anything,” Kagan said at the Temple Emanu-El Streicker Center in New York during an event with Judge Alison J. Nathan, a Biden appointee on the U.S. Court of Appeals for the 2nd Circuit.
“I suspect my colleagues don’t know anything, except for the chief justice maybe, about what the investigation has turned up, if anything,” Kagan said, adding that the leak was both “shocking” and an “obvious, blatant violation of the court’s rules,” according to media reports.
If those investigating have “not figured out who the perpetrator was,” it remains to be seen how the court would prevent another leak from happening, she said. The justices need to be able to privately deliberate “and you can’t do that if you know that you might wake up tomorrow morning and there is a decision and it is on the front page of newspapers.”
The Supreme Court ruled on June 24 in Dobbs v. Jackson Women’s Health Organization that there is no constitutional right to abortion, overturning Roe v. Wade, the 1973 precedent that legalized abortion nationwide. The Dobbs ruling returned the regulation of abortion to the states.
But an early version of the draft majority opinion in Dobbs made its way to the media, an unprecedented leak of a full high court opinion. Politico published the draft document dated Feb. 10 on May 2 without disclosing its source.
Supreme Court Marshal Gail Curley, who is responsible for court security, the court’s police force, and the personal safety of the justices, was tasked with investigating the leak. Curley and court officials have been tight-lipped so it is not at all clear what, if any, progress has been made in the investigation. CNN reported in June that court clerks who work for individual justices were asked to hand over private cellphone data and swear affidavits.
“Nobody elected me,” Kagan added in an aside.
“And the only reason people should accept what judges do is because they’re doing law, they’re doing something that they were put there to do. And so I think judges … undermine their legitimacy when they don’t act so much like courts and when they don’t do things that are recognizably law, and when they instead stray into places where it looks like they’re an extension of the political process, or where they’re imposing their own personal preferences.”
Chief Justice John Roberts said on Sept. 9 at a conference in Colorado that a dip in public approval ratings for the court doesn’t mean the court is illegitimate.
“Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” Roberts said.
“That committee has been busy and we’re looking forward to their report, I hope soon.”
