Episode Overview

Podcast: Amicus With Dahlia Lithwick | Law, justice, and the courts
Episode: Absolutely No One Is Happy With the Dobbs Leak Investigation
Date: January 28, 2023
Host: Dahlia Lithwick
Guest: Jodi Kantor (Pulitzer Prize-winning investigative reporter, New York Times)

This episode centers on the aftermath and investigation into the unprecedented leak of the Supreme Court's draft opinion in Dobbs v. Jackson Women’s Health Organization. Dahlia Lithwick discusses with Jodi Kantor the integrity of the Supreme Court's internal processes, the challenges of transparency vs. secrecy, and how the resulting investigation sparked dissatisfaction across ideological divides. Kantor shares insights from her investigative reporting about the Dobbs leak and broader questions of power, secrecy, and ethics within the Court.

Key Discussion Points and Insights

The Dobbs Leak: Context and Impact

• Historical Shock: The leak of the Dobbs opinion draft was unlike anything that had previously occurred at the Supreme Court, deeply shocking the institution and the public.
  • “Nothing of this sort has ever happened at the Supreme Court.” (Dahlia Lithwick, 02:15)
• Internal Fallout: Justices labeled the leak an “unspeakable betrayal.” Trust within the court was fundamentally shaken.
  • Quote: “When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally.” (Justice Clarence Thomas, as paraphrased by Lithwick, 02:55)

The Leak Investigation’s Process and Reception

• Process Flaws: The court's investigation, led by Marshal Gail Curley, interviewed 97 employees but concluded without identifying the leaker.
  • The justices, and by extension their spouses, were held to a much lower standard of scrutiny than clerks and permanent employees.
  • “The justices were not even held close to the same standard of interrogation as everybody else.” (Jodi Kantor, 10:30)
• Internal Double Standard: Employees and clerks felt intense pressure—threats of criminal liability, affidavits—while justices had “iterative conversations” with the Marshal.
  • “...the gap is unmistakable. I mean, this was an investigation that scared people. They were sat down in a room. They were told they could face criminal liability for misstatements... while this was going on, people inside the court knew the justices weren’t being treated the same way.” (Kantor, 11:14)
• Universal Dissatisfaction: Both liberal and conservative insiders expressed dismay at the process; no one left satisfied or reassured.
  • “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.” (Lithwick, 27:14)

Court Culture: Secrecy, Power, and Asymmetry

• Culture of Silence and Deference: The Supreme Court is renowned for near-absolute secrecy; insiders rarely speak, even to trusted reporters.
  • “The Supreme Court and its employees and certainly the law clerks simply do not speak to journalists, like ever… in my 23 year career, I don't get anyone to talk to me ever.” (Lithwick, 06:25)
• Strong Internal Hierarchies: Law clerks’ careers are profoundly shaped by their relationship to justices, breeding silence and compliance.
  • “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...” (Kantor, 14:35)
• Secrecy vs. Privacy: Kantor raises whether the Supreme Court has overcorrected, using secrecy to protect what should be aired for public trust, referencing parallels to the MeToo movement’s excesses of secrecy in settlements.
  • “Sometimes what Megan and I would talk about with people is there’s a difference between privacy and secrecy. A lot of things deserve privacy. [...] But then, you know, the question is, how much secrecy is too much?” (Kantor, 15:27)
• Partisanship and Double Standards: Staff are constantly reminded not to show political bias, while justices attend overtly ideological events.
  • “Some people felt 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?” (Kantor, 20:25)

Unanswered Questions and Broader Institutional Issues

• Limits of Internal Accountability: There’s no effective way to enforce higher ethical standards on justices, raising pressing questions about self-policing.
  • “They are not bound by the same ethics rules as lower federal judges. And so, you know, why?” (Kantor, 20:49)
• Judicial Spouses and Confidentiality: Unclear and inconsistent practices about sharing information with spouses add confusion and ethical gray areas.
  • “...there was real confusion around whether [sharing information with spouses] was okay or not, because there's an assumption that the justices… speak to their partners, but who knows?” (Kantor, 23:45)
• Lax Information Security: Reporting revealed surprisingly weak standards for securing drafts and other sensitive documents — at odds with the Court’s reputation.
  • “Information security standards were very lax at the court… burn bags were sitting around for too long. [...] Conceivable that somebody could have grabbed a burn bag without particular motive, found this, leaked this, etc.” (Kantor, 26:09)

On Reporting and Structural Opacity

• Need for Sunlight: Kantor emphasizes the journalistic mission as essential for institutional reform.
  • “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.” (Kantor, 30:17)
• The Court as a Political Institution: Lithwick argues that continued refusal to cover the Court as a politics-driven body perpetuates issues of secrecy and unchecked power.
  • “Maybe the unifying theme in both these pieces… is that we start covering the Court as just a purely political institution…” (Lithwick, 31:31)
• External Influence: Kantor’s previous reporting uncovered efforts to influence justices via coordinated donor access, further blurring the apolitical façade.
  • “You’re sitting there reading that story and reading language about the lunches with Supreme Court justices… it is really contrary to our image of what the Supreme Court is supposed to be.” (Kantor, 32:22)

Notable Quotes & Memorable Moments

• On the investigation’s double standard:

  “The Justices were not even held close to the same standard of interrogation as everybody else.”
  — Jodi Kantor [10:30]

• On Court secrecy and unhealthy dynamics:

  “There’s a difference between privacy and secrecy. A lot of things deserve privacy. [...] But then, you know, the question is, how much secrecy is too much?”
  — Jodi Kantor [15:27]

• On staff’s sense of injustice:

  “Some people felt a double standard because they would see… 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?”
  — Jodi Kantor [20:25]

• On universal dissatisfaction and legitimacy:

  “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.”
  — Dahlia Lithwick [27:14]

• On transparency and potential for reform:

  “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.”
  — Jodi Kantor [30:17]

• On covering the Court as a political body:

  “Maybe the unifying theme in both these pieces… is that we start covering the Court as just a purely political institution…”
  — Dahlia Lithwick [31:31]

Important Segment Timestamps

• 00:30—04:00: Opening context; scope and impact of the Dobbs leak
• 06:20—09:58: Culture of secrecy; challenges of reporting inside the Court
• 09:58—12:30: Flaws and double standards in the investigation process
• 14:30—17:45: Power dynamics between clerks and justices; MeToo parallels
• 20:07—22:07: Double standards in partisanship rules and public confidence
• 23:15—25:53: Spouses, confidentiality, and the investigation’s limits
• 25:53—27:12: Motives for the leak; information security lapses
• 27:12—29:07: Universal discontent; the Chief Justice’s constrained role
• 31:31—32:22: The Court’s intersection between politics and secrecy

Conclusion

This episode delivers an in-depth exploration of the Supreme Court’s professional culture, its struggle with transparency, and the deeply unsatisfying aftermath of the Dobbs leak investigation. With powerful reporting insights from Jodi Kantor and incisive commentary from Dahlia Lithwick, listeners are provided a rare look at institutional opacity, questions of internal accountability, and the urgent need for structural reform and sunlight at the heart of the American judiciary.