← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Absolutely No One Is Happy With the Dobbs Leak Investigation
00:34:40
Jodi Kantor on the tipping scales of secrecy and privacy at the High Court.
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- [00:06]
A
What's the way forward for a court that's troubled? Has the secrecy grown so great that it is protecting things that shouldn't be protected?
- [00:31]
B
Hi, and welcome back to Amicus. This is Slate's podcast about the courts and the law and the Supreme Court, and I am Dahlia Lithwick. This past few weeks have been deeply, deeply strange, even by the Court's own standard for whatever is the new normal. We finally heard about the Court's investigation into last May's Dobbs leak. Then we heard a supplemental statement about the Justice's participation in that leak investigation. And then we heard, by way of some stellar reporting from the New York Times, Jodi Kanter, about how that leak was roiling the building from the inside and from all around. Nothing about any of this is good for the Court, but maybe more importantly, it raises some questions about what it means for all the rest of us. Later on in this show, Slate's very own Mark Joseph Stern is going to join us for our special Slate plus segment where we kick around the news we couldn't fit into the main show this week. That'll include the announcement of the first opinion of term and its baffling unanimity involving benefits for disabled veterans, plus whether a new documentary about Brett Kavanaugh is indeed anything new. If you're not a Slate plus member, here's the skinny. Plus members get no ads on any of Slate's podcasts, unlimited reading on the Slate website, and member exclusive episodes and segments from our show and other shows like Slow Burn and Political Gabfest. You can sign up for Slate plus right now@slate.com amicusplus to access all of Slate's content and support our work, that is slate.com amicusplus but first, the leak, the leakers, the leak investigation, and the investigation of the leak investigation. When the full draft of the Dobbs opinion was published in Politico last May, it caused, I think it's fair to say, a shockwave experienced around the country, if not, in fact, the world. Nothing of this sort ever. Nothing of this sort has ever happened at the Supreme Court. And while the various justices described it as an act of unspeakable betrayal and violence within the Court, the Chief Justice, John Roberts, was tasking the Marshal of the Court, Gail Curley, to investigate. In a May 2022 speech, Justice Clarence Thomas described how the leak had changed the atmosphere at the Court. When you lose that trust, especially in the institution that I'm in, it changes the institution fundamentally. You begin to look over your shoulder.
- [03:08]
A
It'S like kind of an infidelity.
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B
We never had that before. We actually trusted it was. We may have been dysfunctional family, but we were a family. Over the summer, we heard rumors that law clerks had had their phones seized, that they had hired lawyers in some cases. In the fall, Justice Neil Gorsuch said that a report was imminent. Still nothing. Then more nothing until late last week, we heard that a 20 page report had dropped, concluding in many, many words that the identity of the leaker was unknown and probably unknowable. The investigative Team had interviewed 97 employees, all of whom just denied disclosing the opinion. The investigation, quote, has to date been unable to identify a person responsible by a preponderance of the evidence, end quote. Over and above that, former Homeland Security Chief Michael Chertoff, who had sat with Justice Alito on the Third Circuit Court of Appeals, signed off on a note to add that the probe was a thorough one and that, quote, he cannot identify any additional useful investigative measures. Look, the blowback was pretty swift. The report had noted that, quote, the investigation focused on court personnel, law clerks and permanent employees. It implied that the justices and their spouses simply were not questioned. And if all this were not the single most mortifying screw up in the history of detective work, the very next day, Supreme Court Marshal Gail Curley issued the saddest PS Ever, indicating that as part of the probe, she had in fact interviewed the justices and, quote, nothing implicated the justices or their spouses. No sworn affidavits, no threats of criminal penalties. It was, per Marshall Curley, an iterative process, end quote, in which I would only imagine the justices and the marshal took turns asking one another questions like, would you like one lump of sugar or two? Or could you kindly pass the macaroons? But into this morass step my old dear friend Jodi Kantor, who is, of course the Pulitzer Prize winning investigative reporter, co author of she Said, a book that recounts how she and Megan Tuohy broke the story of sexual abuse allegations against Harvey Weinstein helping ignite the MeToo movement. She said, has also just been turned into a fantastic movie. But in recent months, Jodi has been turning her investigative lens onto the Supreme Court, reporting the blockbuster news this fall of a possible leak in the Hobby Lobby, deliberations that may have come from Justice Alito or his wife to a wealthy donor to the Supreme Court Historical Society. It was at the time a rich, scoopy piece about access to the court and what happens in the court, as was her piece this past weekend about the Dobbs Leak. Now, I have known, Jody, to be sure, since we were both toddler reporters, and it is just a pleasure to welcome you back to your Slate family of origin and to just say, Jodi, you are a national treasure and it is a joy and also somewhat fearsome to have you moving over to cover my beat.
- [06:21]
A
Well, thank you very much. It is incredible to be back at Slate with you.
- [06:25]
B
I think the best place to start, and this is gonna seem obvious to you, but maybe not obvious to our listeners, is that the Supreme Court and its employees and certainly the law clerks simply do not speak to journalists, like ever. They are warned against it after the brethren clerks and employees were truly, I think, instilled with the fear of God. And I have to say, in my 23 year career, I don't get anyone to talk to me ever, including former friends who in the year that they're clerking, just like put on a fake nose and mustache and hat and pretend they don't know me. So part of me just wants to start with this precatory question of did you have any sense that this building that is usually and for decades has been locked down like a drum was ready to blow? Did you take it for granted that folks would talk to you?
- [07:17]
A
No, of course not. I think you have to go in with a lot of respect, not only for the court, but for, you know, why people maintain its secrets. And I think this was, you know, obviously I can't say a lot about this, but I think that people were speaking because they cared. Actually, you know, there were all sorts of reasons why people talk. And sometimes I acknowledge that it can be destructive sometimes and it can feel destructive to the organization. But the people who helped me with this last story, they care. They cared and they care.
- [07:50]
B
And it's interesting because you note it too, that the paradox is what they care about isn't just me, criminal exposure. They care actually about the institution of the court. In other words, they're having, it seems to me, some feeling on the inside that there is a reputational loss here that they are trying to correct for too. In other words, it seems to be coming from a place of not like I'm mad, but I'm worried about this institution that I love and all of the sort of norms and expectations around how we conduct ourselves.
- [08:25]
A
Yeah, I think that's right. And I think that also you have to be sympathetic to the real riddle that the court is facing. What a lot of these stories add up to is the question of can this court police itself? How can it manage to maintain its independence, which is genuinely so important. There's a real case for that. And yet self managing is. We've seen some real problems come from that lately. And there are, you know, there are some pretty urgent questions about accountability floating in the air. I think it's really important to go in with the knowledge that this is structural as much as the personalities are super interesting. These dilemmas are baked into what the Court is because it really is nine individually confirmed people who don't have a traditional. People see Roberts as, you know, sort of the boss, but he's more of an administrator of the Court than an executive.
- [09:29]
B
I'm guessing that most of the folks who are listening now have read the piece, but would you mind just kind of giving us the high points of what your takeaway after talking really pretty extensively to people inside the building who, as I say, are not generally inclined to talk to the press, and you also talk to, I know, folks who litigate in front of the court. Can you just give us the sort of three big takeaways that you got from your reporting in this piece?
- [09:58]
A
I think the biggest takeaway is that this investigation was obviously some sort of attempt to right the institution after this leak. Like this breach was a shock, as you said at the top of our conversation to people. And the investigation was the answer. I mean, the Chief justice announced it like the next day. And these investigations can be tricky, right? They can restore some confidence even if they don't find the answer. They can like, process builds faith, right? They can restore a sense of normalcy and rightness and introduce new policies and whatnot, or they can further lower faith. And my impression, and let's also stipulate that I don't have a God's eye view and of course I did not speak to everybody involved, but there was a loss of faith that came out because of the way this investigation played out. So the big one is that the Justices were not even held close to the same standard of interrogation as everybody else. The Marshall statement is actually pretty hard to understand. She says that she had iterative conversations with the Justices. Listen, we don't know what that means, but when you contrast it with the way others were treated, the gap is unmistakable. I mean, this was an investigation that scared people. They were sat down in a room. They were told that they could face criminal liability for misstatements. They were presented with affidavits. There was a lot of implicit pressure to sign, as the report says, they had to confess even to small things like, wow, I did tell my partner you know something about this. And what I also made sure to say in the story is that while this was going on, people inside the court knew that the justices weren't not being treated the same way. It was pretty obvious to them. And so the questions that we are all contemplating now, people inside the court have contemplated for longer.
- [12:05]
B
We're taking a quick break to hear from some of our sponsors. Let's get back to my conversation with the New York Times. Jodi kantor, it's funny, I made a very flip joke on one of the TV shows this week where there was such big Downton Abbey energy around this, where you just had the sense that downstairs people were being, you know, interrogated and threatened and lived in fear of, as you say, not just having to disclose things that materially had to do with the leak, but anything. They felt that everything about them was being exposed to the investigators and that upstairs, you know, quite literally there was just conversations, iterative ones to be sure, but conversations over tea. And it does raise this question that you really, I think, flow flag in the piece where these very lopsided relationships exist. Right. I mean, you note at the beginning, you know, the justices have someone help them put their robe on, and you talk about and this is so relevant to some of the work we did on MeToo for law clerks, but this sense that you go along as a clerk or face just huge professional consequences if you displease your judge, the lopsided incentives are so acute, put aside the massive signing bonuses for clerks, which is insane. But nobody is going to risk these contacts, this lifetime of opportunities. And so there's this need to please your judge that is all out of proportion, I think, to a normal employee employer relationship. And I wondered, because you've done so much reporting about closed systems, I mean, this is the nature of your me too pathbreaking work. But talk a little bit about the nature, in your view of this sort of deeply respectful, hagiographic in your, in your piece, you talk about the family relationship in the court, which is a phrase that always makes me crazy because families are rife with abuse and lying and cover up. Being in a family relationship at work never redounds to the benefit of the children, it seems to me. So I just wondered if you could map some of that weird, weird asymmetry in sort of power and respect and consequences onto other work you've done in investigating these pretty closed, secretive loops with funny incentives. Wow.
- [14:30]
A
That is, I mean, we could unpack that for a long time. I mean, I think first of all you already said the most important thing about the clerk relationship, which is that it's a heightened version of the usual power dynamic that exists between bosses and employees, because that one year you spend as a clerk can become the foundation for the rest of your professional life. And, you know, maybe you have an opportunity to become a federal judge years later. Or maybe what you really want is a law professor perch, or maybe you want to argue cases in front of the Supreme Court in which you're sort of like, intimacy with the court is a huge asset. There are these reunions that clerks go to that are a really big deal. I mean, not only is there a lot of fondness and affection, but it's an incredible professional networking opportunity to be a kind of member of this club. So I think you're right that the levers are particularly powerful. And then the other thing I thought about a lot and listen, I think about all the time as a reporter is what's an appropriate amount of secrecy? You know, that's one of the great questions of the world with me, too. You know, sometimes what Megan and I would talk about with people is that there's a difference between privacy and secrecy. A lot of things deserve privacy. People's intimate stories of trauma deserve privacy. The internal workings of a business or of a court, they can deserve privacy. I mean, the sort of argument of protest against the leak from the justices was this was an assault on our deliberative process. It's necessary for us to come into a room alone together to figure this stuff out. And this was, from whatever side, an attempt to interfere. But then, you know, the question is, how much secrecy is too much? And I can't tell you the exact answer with the court, but what we experienced with the MeToo reporting is that there was way too much secrecy. I mean, women, like, with a straight face. Everybody thought it was normal that women would sign these settlements saying that they would never speak to another human being about what happened. We saw papers in which people agreed not to tell their shrink without permission, not to tell an accountant without permission. There were women who received really large sums of money, like huge amounts of money. And the settlements were. I think they became a legal fiction because it was like, oh, you just got $20 million, and you are not going to tell your sister how you got that money. And it didn't make any sense, and it wasn't healthy, because the main point about the settlements is that it was enabling people to rack up repeat allegations. You know, somebody could essentially dispose of one incident and go on to alleged hurt somebody else five minutes later. So I think the question that everybody involved, you know, readers, reporters like me and you people at the court have to answer is like, what is the appropriate and healthy amount of privacy and secrecy for this organization?
- [17:45]
B
So maybe this is connected to that. Jodi. But one very arresting kind of side note in your piece, but it really struck me, was that some of the employees and the clerks are actually kind of pissed off about this double standard at the court that has to do with being politically active. So not only are they, you know, downstairs with the bright light shining in their face, being told to sign affidavits and threatened with, you know, criminal sanctions as their bosses are upstairs seemingly, you know, swatting around, having iterative conversations, but you note further that the staff had this sense, or the employees and staff that you talked to, that they were being sort of roughed up over threats to the institution and their bosses were not super interested. And the example that you brought that I hadn't really heard anyone say out loud was, you know, employees receive, as you wrote, a stern memo reminding them they may not participate in partisan priorities, political activities, no events, no fundraising, bumper stickers, statements on social media. And so some bristled, you write, when four justices attended the 40th anniversary dinner for the Federalist Society, an influential conservative group that focuses on the judiciary, in November. And it really made me think, Jodi, of the fact that when I clerked, I wasn't allowed to go to marches. I couldn't have bumper stickers or lawn signs or do anything to events. And I was clerking on the 9th Circuit, but the rules were the same, that I had a political life that year, and that the disjunction between how the employees that you talk to and the clerks that you talk to are experiencing that ban on what looks like partisanship and what the bosses are doing is crazy making. And I just wonder if that's a new thing. I mean, I confess it never occurred to me to do anything else, but I think my judge never did anything but adhere to those strictures. And so I wonder if it's always been the case that the employees in the building just have to, you know, rise to this very high standard of nonpartisan behavior, and the justices go ahead and speak where they want and say what they want, or if this is something that folks are newly aware of in the building, that this. This rule of nonpartisanship for thee but not for me is just fundamentally unfair.
- [20:08]
A
Just to be clear, I don't know that what you said is true about employees being roughed up over this memo. I think it's more the case that this memo went around very routinely.
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B
Right.
- [20:18]
A
And it's not surprising. You know, the Supreme Court is not supposed to be partisan. No lawn signs, no social media activity around, you know, elections. Please. Like, here's a reminder to everybody. But some people felt that there was a double standard because they would see, for example, justices going to a big Federalist Society gathering and speaking, and their question was, do the justices have to play by the same rules as everybody else? And that's the question that keeps coming up up with the Supreme Court. Right. They are not bound by the same ethics rules as lower federal judges. And so you know why. Right. I mean, that question has been asked like a million times in a million ways. A lot of people were troubled, not just that Ginni Thomas was involved in efforts to overturn the 2020 election, but then that her husband, Justice Thomas, didn't recuse himself from those cases. And people ask, like, where do you take that? Can anybody enforce that? Is there another forum beyond this? You know, it's funny, I was still thinking of your last question about secrecy as we were talking about this one. And, you know, they're both about the same thing, which is like, what's the way forward for a court that's troubled? Right. Like, has the secrecy grown so great that it is protecting things that shouldn't be protected? Right. Like, has it gone beyond an appropriate level of secrecy to a point where there is not a healthy discussion and things are not, you know, getting addressed? And then this question, you know, is a little bit the same. I mean, public confidence in the court has really, really plummeted. And so there's the question of how do you restore that? How do you rebuild that?
- [22:07]
B
We'll be right back after this quick break. More now from investigative journalist Jodi Kanter. I want to ask you about the question of judicial spouses only because it's clear from the report, the initial report, that some folks seemed, as you noted in the investigation, to have talked to partners and spouses. It felt fairly clear from Marshall Curley's report initially that spouses were certainly not questioned. I think when the supplemental memo came out saying we talked to the justices, that seemed even more clear that spouses had not been questioned. Is that something that rankled inside the building? Was there a sense that a more thorough investigation would have included the spouses of the justices and the kids of the justices and other interested parties, or is there an acceptance of that ethos that we get so Often from the Thomases, that spouses are untouchable, that they are, you know, in their own lane, and whatever it is that they're doing does not inflect on the business of the court.
- [23:15]
A
Yes, people mentioned it, but I have to say that, you know, from some long reporting experience, spouses are really interesting, and they're tricky. And it's kind of a classic Washington question of, like, I mean, I once, in a former reporting life, I wrote a book about the Obamas when they were president and first lady. And the first lady's role is really ambiguous. It's an unpaid position. She is part of the White House, not part of the White House. Where it came up most in the investigation is that there was a lot of ambiguity. So basically, people were asked whether they had told anybody anything about the Dobbs decision. And as the report indicated, some people had told their partners. And I think there was real confusion, you know, around whether that was okay or not, because there's an assumption that the justices, that the justices who have partners, you know, speak to them, but who knows? Right. None of us can really say that for sure. And. And there are different rules at different federal government agencies. But when you are holding sensitive information, even in a different field, say when you're a therapist, you know, I think there's always a real question of is it better or worse to tell your spouse worse, because obviously it can be compromising in the worst situations or potentially better, because everybody needs a lockbox and everybody needs a release valve. And if your spouse is your. I mean, part of the role of a spouse in life is to be the one safe space where you can go. And so it turns out there was tremendous confusion over that.
- [25:01]
B
And I think one thing that was clear to me from the initial report is that they chased down some of the early Twitter investigative citizen journalism around the leaker. You know, the. What I think in some case amounted to actual, you know, doxing and harassment of clerks because of who they worked for and allegations of what they studied in college or who they knew. And it seems as though the investigators found, quote, nothing to substantiate the accusation that it was done by a clerk for some political motive. But it does raise the question for me, Jodi. I wonder if it raises it for you, then what is the motive like, if you've put that aside, that some clerk was trying to force this issue into the public to change the result in Dobbs, what does that leave as the motive, if anything?
- [25:53]
A
I don't know the motive for sure. I don't want to speculate. I don't have a firm answer for you. The universe of possibilities of how this got out is so large, you can read it in the report. So many people got the draft right, and then there were email copies, there were paper copies. And also, you know, one of the things I learned in the course of reporting that I was very surprised by is that information security standards were very lax at the court. I hadn't heard the term burn bag. It's a very Washington term. It's a bag where you keep sensitive documents that are on their way to being destroyed. But, you know, like when you leave stuff on top of the shredder and you don't shred it, and so it actually makes it less secure, that's sort of the equivalent of what was happening. The burn bags were sitting around for too long. And so listen, it's conceivable, conceivable that somebody could have grabbed a burn bag without particular motive, found this, leaked this, et cetera. And one thing to add is that the upset with the investigation and the feelings of unfairness. I heard them. I think it's important to say that I heard them from both sides. I heard them coming from liberal and conservative corners.
- [27:09]
B
Yeah. I absolutely think that the takeaway of both the investigation and the supplemental investigation in your piece is that there are zero people who are happy with how this went. This is a rare moment of bipartisan unanimity that this just was not handled well. But it leads me, Jody, to the question you've been flicking at through this conversation, which is the chief justice. And you know, as you said, these are nine separate law firms. Right. He does not have power. He can't go into people's chambers and boss them around for right or for wrong. I do think it's fascinating that it's clear, I think, from the report that he controlled every aspect of this investigation, up to and including who to direct to do it. And I do wonder if this question of what the chief could have done different is weighing on you as much as it's weighing on me, because I think in some sense it's just not the case. And I think. I think Steve Vladek has written this week, there's a separation of powers question. If he had contracted it out to the FBI, there's a real question of, given the limits of how much control he actually has as the administrator, what he could have done different. And there's a real question for me, because you are, you and an investigative reporter. I just have to ask Jodi if You were the Chief justice, how would this investigation have gone differently? And within, I'm saying, like, if he had Jodi Cantor, like micromanaging this, what would he have done different? And then under that is this deeper question of would he have even wanted to? Because my sense of his temperament is. And I guess this is part B of my question. He really just seems to be taking the position that if he keeps saying the justices are perfect and magic and flawless and have to police themselves, at some point the public's going to come around. That seems to be the frame for this investigation.
- [29:07]
A
So to your question of what I would do if I were investigating, if I were in charge of the Court's investigation, I feel like I can't really answer that. It's not fair. I mean, I can't tell the Court what to do. And we're on a different pursuit and inquiry, which is journalistic. It's about learning more deeply about this Court. It's about giving people the confidence to tell the truth, whether it's on the record or very secretly. Listen, if anybody has any information to share, you can reach us@nytimes.com tips you can put my name on the tip and it will get to me. And if we talk, of course, the first discussion is about ground rules. The question hovering over all of these conversations is what would happen if we knew more about the Court? And I understand there's some cynicism about that. I've talked to many people who feel like the Court's problems just can't be fixed. But I don't share that because you can't solve a problem you can't fully see, and we don't know what it's like to look at this court in the sunlight.
- [30:19]
B
My last question for you, Jody, connects up to the earlier piece, the Hobby Lobby piece, and the alleged Justice Alito leak. I think, I assume Justices tell their spouses about the outcome in drafts of cases. So I wasn't so much shocked that there was like, an allegation that Justice Alito or his wife had leaked the results of Hobby Lobby. But I was really shocked that you were reporting on this elaborate pay to play operation with a headquarters across the street from the Supreme Court. Nobody knew about it, or maybe everybody knew about it. But because we refused to cover the Court as a political branch, the idea of this unregulated lobby operation across from the Court never occurred to anyone. And I just wonder if maybe this goes back to your sort of secrecy question. There's so much both privacy and secrecy around as you said, the sort of structural norms, the ethical norms of the Court, because we keep telling the story of the Court as this different thing. We tell the story of the Court as the closest thing to a monarchy, I guess we have in this country that has its own rules and systems and its own mythology and its own ideas about boundaries and privacy. And maybe the unifying theme in both these pieces, again, you'll tell me that I'm overstating it, but the unifying theme in both of these pieces has to be that we start covering the Court as just a purely political institution, because the stuff that is getting swept away that you're covering is purely political in some sense.
- [31:59]
A
You know, Dalia, I really know what you say about your reaction to the Hobby Lobby story. You're not the only person to react that way. And I think part of it is because of the degree of email evidence we had on Reverend Rob Schenck's attempts to plant donors inside the court influence, conservative justices, et cetera. You're sitting there reading that story and reading language about the lunches with, you know, Supreme Court justices. And we, we were able to quote from like a training briefing that they used, you know, saying to these wealthy anti abortion donors, here's how you speak to the justices, here's the code language, you know, that you're supposed to use. And so reading those emails for the first time, you know, seeing that in black and white newsprint, it is really contrary to our image of what the Supreme Court is supposed to be. But also, by the way, I should say that it's unclear the extent to which the justices knew what was going on.
- [33:04]
B
Jodi Kanter, not only is the Pulitzer Prize winning investigative reporter responsible for half of she Said, the book about how she and Megan Tuohy broke the story of sexual abuse allegations against Harvey Weinstein, which has now been made into a movie, but she has really, really, I think, been helping to invent this beat, which is covering the Court from a different lens. For those of us who are inside the court who can't always imagine the scope of what she's doing, it's really immense. So, Jody, as you said, it is just such a treat always to get to talk to you, but to get to talk to you about something that is really gnawing away on me on my beat about how we think about the Court differently. I just. Thank you so, so much for your time.
- [33:50]
A
Well, thank you, Dalia. It's great to be with.
- [33:58]
B
And that is a wrap for this episode of Amicus. Thank you. So much for listening in, and thank you always for your letters and your questions. You can always keep in touch@amicuslate.com or you can find us@facebook.com AMICUSpodcast Today's show was produced by Sarah Burningham. Alicia Montgomery is executive producer of podcasts at Slate and and Ben Richmond is senior director of operations for podcasts at Slate. We'll be back with another episode of Amicus in two short weeks. Until then, take good care.