Chief Justice Roberts directs investigation into leaked draft of abortion opinion

»Update: Read live coverage of the Supreme Court’s draft ruling.

Chief Justice John Roberts Jr. said Tuesday that the leaked draft opinion proposing to overturn Roe v. Wade is authentic but not final, and that he is opening an investigation into how it became public.

“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. “The work of the Court will not be affected in any way.”

While Roberts’s statement said the draft provided to Politico was genuine, “it does not represent a decision by the Court or the final position of any member on the issues in the case.”

Politico’s report said that five justices had decided to uphold a Mississippi law that would ban abortions after 15 weeks of pregnancy, and overturn the decision that established a constitutional right to abortion nearly 50 years ago.

» READ MORE: Leaked Supreme Court draft ruling on Roe v. Wade: What you need to know

Roberts’s news release was another extraordinary deviation from the court’s normal procedures, which generally entails paying no attention to outside influences. It was a sign that Roe v. Wade is too important, and the breach of Supreme Court operations too monumental, to ignore.

It was not immediately clear whether the court intends to disclose publicly the results of its investigation.

Republican politicians in particular have called for an investigation into the leak, which some have seen as an attempt to put pressure on justices who may be inclined to strike down Roe instead to modify their decisions.

Sen. Charles E. Grassley, R-Iowa, the Senate Judiciary Committee’s top Republican, praised Roberts’s announcement Tuesday, saying on Twitter that the chief justice is right to investigate the “unprecedented SCOTUS leak” and that the inquiry “should be done quickly & thoroughly.”

“The leak,” Grassley wrote, “was a monumental breach of trust w/in our judicial system. The independent judiciary must remain free from political intimidation & outside influence.”

In his statement Tuesday, Roberts said he has asked the court’s in-house police service, led by Marshal Gail A. Curley, to start an investigation.

Jonathan Turley, a George Washington University law professor who teaches a course on the Supreme Court, called the leak the “greatest crisis that the chief justice has faced during his tenure” and perhaps the “greatest security breach in the history of the court.”

The leak and ensuing investigation, he said Tuesday, will cause lasting damage to the court and its culture. In a city like Washington that traffics in leaks between public officials and journalists, the Supreme Court has largely been what he called “an island of confidentiality.”

“It’s a very insulated, monastic and personal environment,” Turley said. Drafts are circulated among a small number of people to allow open discussions of the cases and legal theories. “The fear,” he added, “is that a scandal of this kind can chill those deliberations that are based on a sense of mutual trust.”

Sheldon Snook, a former senior official at the Supreme Court, said the importance of confidentiality is deeply ingrained in the culture of the court’s workforce with all new employees receiving ethics training at the time of hiring. The court itself “usually does not comment on its internal business, so the fact that the chief justice did indicates just how grave the breach is,” said Snook, who worked in the office of the counselor to the chief justice for more than five years.

» READ MORE: ‘A truly dark day in America’: Pennsylvania, New Jersey governors react to leaked Supreme Court draft

The chief justice had no choice but to order an investigation to determine the leak’s source and the person’s motivation, he added.

Less clear if how aggressive the chief justice intends to be in seeking accountability. Disclosure of the draft document is not necessarily a crime, legal experts noted, though U.S. criminal code could be interpreted to make the case for a charge of theft of government information.

Broadly, the Justice Department has said that it is inappropriate to prosecute when the person “obtained or used the property primarily for the purpose of disseminating it to the public.” If, however, the leaker were dishonest with investigators, there could be significant consequences, as lying to federal agents is a crime.

Roberts’s decision to investigate is not without precedent. A law clerk to Justice Joseph McKenna resigned in 1919 after he was indicted by the Justice Department for sharing business-related court decisions before they were formally released with Wall Street investors, according to research by Judge John Owens of the U.S. Court of Appeals for the 9th Circuit.

Owens found that the Justice Department’s case against the law clerk fell apart in part because there was at the time no explicit prohibition on insider trading. The law clerk’s case never went to trial and was eventually dismissed in 1929.

In 1973, when the result of the Roe decision was leaked by a Supreme Court clerk to Time magazine, Chief Justice Warren Burger called for the leaker to be named and punished. According to author James D. Robenalt, the law clerk who gave the information to Time fessed up immediately and offered to resign his post with Justice Lewis Powell.

While Burger was angry about the leak, he accepted the law clerk’s apology and the clerk went on to serve another term with the justice, according to Robenalt.