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Supreme Court Justices and Spouses Cleared in Leak Probe by Marshal

Supreme Court Marshal Gail A. Curley issued a statement Friday afternoon correcting a glaring omission in her report released Thursday on the leak last May 2nd of a draft ruling in the Dobbs v. Jackson Women’s Health Organization abortion case. Curley’s initial report said the source of the leak had not been determined and that all court staff had denied being the leaker and had signed sworn affidavits to that effect. Not mentioned was any investigation of the Justices.

The Roberts Court, April 23, 2021
Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States

(Note: Photo is of the Supreme Court as constituted when the leak occurred in May 2022. Justice Breyer retired at the end of the 2021-22 session on June 30. The Dobb decision was released June 24.)

Colonel Gail A. Curley, marshal of the U.S. Supreme Court. Photo: Collection of the Supreme Court of the United States.

Friday’s statement by Curley clears up the omission but also indicates the Justices were were not held to the same standard as Court staff:

For Immediate Release
January 20, 2023

Statement from Marshal Gail A. Curley:

During the course of the investigation, I spoke with each of the Justices, several on multiple occasions. The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits.

Excerpt from the initial report:

The investigation has determined that it is unlikely that the Court’s information technology (IT) systems were improperly accessed by a person outside the Court. After examining the Court’s computer devices, networks, printers, and available call and text logs, investigators have found no forensic evidence indicating who disclosed the draft opinion. They have conducted 126 formal interviews of 97 employees, all of whom denied disclosing the opinion. Despite these efforts, investigators have been unable to determine at this time, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion in Dobbs v. Jackson Women’s Health Org. or how the draft opinion was provided to Politico. Investigators continue to review and process some electronic data that has been collected and a few other inquiries remain pending. To the extent that additional investigation yields new evidence or leads, the investigators will pursue them.

…At the conclusion of the initial interviews, each employee was asked to sign an affidavit, under penalty of perjury, affirming that he or she did not disclose the Dobbs draft opinion to any person not employed by the Supreme Court, did not disclose to any person not employed by the Supreme Court any information relating to the Dobbs draft opinion not made public through means authorized by the Court, and had provided all of the pertinent information known to him or her relating to the disclosure or publication of the Dobbs draft opinion. Each employee was then asked to swear to the truth of the statements in the affidavit before a Notary Public. Each of these employees
signed a sworn affidavit. A few of those interviewed admitted to telling their spouses about the draft opinion or vote count, so they annotated their affidavits to that effect. If investigators later determine any personnel lied to the investigators, those personnel would be subject to prosecution for a false statement in violation of 18 USC § 1001.

Curley was appointed Marshal in 2021. Supreme Court press release:

For Immediate Release
May 3, 2021

Colonel Gail A. Curley has been appointed the new Marshal of the Supreme Court of the United States. She will be the eleventh Marshal of the Court and the second woman to hold the position. She succeeds Pamela Talkin, who retired on July 31, 2020 after 19 years as Marshal. Col. Curley is expected to assume her new duties on June 21, 2021. As Marshal, Col. Curley will serve as the Court’s chief security officer, facilities administrator, and contracting executive, managing approximately 260 employees, including the Supreme Court Police Force, which provides security for the Justices, Court staff, visitors, the building, and surrounding grounds. Col. Curley will call the Supreme Court to order in argument sessions, maintaining order and decorum during Court proceedings.

Col. Curley comes to the Court from the U.S. Army where she was the chief of the National Security Law Division in the Office of The Judge Advocate General. She supervised a team of judge advocates, led the strategic engagements program for the Judge Advocate General’s Corps, and provided legal advice and support on national security law to senior Army leadership. From 2016 to 2019, Col. Curley was the staff judge advocate for Headquarters, U.S. Army Europe in Wiesbaden, Germany, where she served as the senior U.S. Army attorney for an area consisting of 50 nations and supervised over 300 legal professionals. She has held a wide variety of leadership and legal positions over her military career at many locations including Germany, Afghanistan, and the continental United States.

Col. Curley earned her Bachelor’s degree in political science in 1991 from the United States Military Academy and received a J.D. in 1999 from the University of Illinois College of Law. She received a Master of Laws degree in 2004 from The Judge Advocate General’s Legal Center and School and a Master of Science in 2014 from the Dwight D. Eisenhower School for National Security and Resource Strategy.

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