Nobody knows anything.
Newly retired liberal Supreme Court Justice Stephen Breyer told CNN’s Chris Wallace in an interview that, as far as he knows, the identity of the mysterious leaker of Justice Samuel Alito’s opinion draft on the overturning of Roe v. Wade, is still unknown.
According to a transcript provided by the network, Wallace asked about the leak, which happened in May: ‘Within 24 hours the chief justice ordered an investigation of the leaker. Have they found him or her?’
‘Not to my knowledge, but . . . I´m not privy to it,’ Breyer responded. Wallace pressed: ‘So in those months since, the chief justice never said, “Hey, we got our man or woman?” ‘
‘To my knowledge, no,’ said Breyer, who, despite being retired, maintains an office at the Supreme Court.
His admission comes as a huge investigation continues into the leak, the most shocking in the history of the Supreme Court.
It remains unclear if the leaked draft was shared by a liberal infuriated by plans to end Roe v. Wade – which came to pass in June – or by a conservative hoping to galvanize support for the planned measure.
The interview is to air Sunday on ‘Who´s Talking to Chris Wallace?’
Newly retired liberal Supreme Court Justice Stephen Breyer said he is not privy to the investigation since leaving the court, but as far as he knows, the leaker has not been caught
The infamous leaked draft opinion was written by Justice Samuel Alito
Justice Stephen Breyer was nominated by then-President Bill Clinton. He is pictured with his fellow justices in April 2021, before his retirement and replacement by Justice Ketanji Brown Jackson
The responsibility of identifying the leaker has fallen to the Marshal of the Supreme Court, Gail Curley, although it appears efforts to identify them are no further forward
Other justices have also suggested recently that the identity of the leaker remains unknown to the court.
At a conference in Colorado this month Justice Neil Gorsuch said it is ‘terribly important’ to identify the leaker and he is expecting a report on the progress of the investigation, ‘I hope soon.’
Justice Elena Kagan also said recently she does not know if the investigation Roberts ordered has determined the source of the leak.
In May, a Washington Post report speculated that the leaker may be a someone who works as a clerk for one of the justices.
The Post article notes that, increasingly, the lawyers who are chosen to become clerks, are selected for their political ideology as much as for their legal prowess.
An ABC News report speculated that the leaker was someone from the conservative wing of the court who did so in the hope that the publicity the leak would bring, would lock in the five vote majority.
The responsibility of identifying the leaker has fallen to the Marshal of the Supreme Court, Gail Curley, a former Army colonel and military lawyer.
She hasn’t commented on how her probe is going.
‘I’m confident that if the truth can be found out here, she’ll find it out and present it in an unbiased manner,’ said retired Army Brig. Gen. Patrick Huston, her direct supervisor at the Pentagon in her last military job before the Supreme Court.
Huston said he was incredibly impressed by Curley and that she had a tremendous reputation as a leader, but even as her boss of two years he didn’t know if she had a spouse or children.
In May, a Washington Post report speculated that the leaker may be a someone who works as a clerk for one of the justices
The network’s Supreme Court contributor, Kate Shaw, said: ‘The publicity will deter them from doing so because they will be worried about sending a message that they were somehow cowed into changing their votes by the public blowback and or the public encouragement.’
It’s also possible the leak came from someone who was so upset by the prospect of overturning Roe that informing the public at the earliest possible moment was of paramount importance.
In 1973, Chief Justice Warren Burger was infuriated by the leak of the outcome of the Roe case a few hours ahead of its announcement.
Burger threatened to subject employees to lie-detector tests, but the leaker quickly came forward and explained it had been an accident.
Earlier in the interview, Breyer said he was ‘very, very, very sorry’ to be on the losing side of the Dobbs decision, which overturned Roe v. Wade.
‘And you say did I like this Dobbs decision? Of course I didn’t. Of course I didn’t,’ he said in an interview with CNN’s Chris Wallace for an interview to air Sunday night. ‘Was I happy about it? Not for an instant. Did I do everything I could to persuade people? Of course, of course. But there we are and now we go on. We try to work together.’
He warned his Supreme Court colleagues that overly rigid decisions ‘will come around and bite you in the back.’
‘Because you will find something you see just doesn’t work at all. And the Supreme Court, somewhat to the difference of others, has that kind of problem in spades,’ Breyer said.
Dobbs overturned nearly 50 years of precedent, with the conservative justices writing that the implicit ‘right to privacy’ in the Constitution didn’t exist, throwing decisions about abortion laws back to the states.
Justice Stephen Breyer (right) who retired earlier this year, sat down with CNN’s Chris Wallace for an interview to be broadcast Sunday
Prior to the decision being handed down in June, a draft of it was released to the press – an unprecedented leak from a source within the high court.
Wallace asked, ‘Was there an earthquake inside the court?’ when the draft of the Dobbs decision was published in Politico.
‘An earthquake?’ Breyer asked. ‘It was very damaging because that kind of thing just doesn’t happen. It just doesn’t happen. And there we are.’
Breyer retired earlier this year and was replaced by the first black female justice, Ketanji Brown Jackson.
A liberal, he made his decision to step down while the Democrats had control of both the White House and Senate.
‘There have been delays, you know, when the party is split between control of the Senate and control of the presidency,’ Breyer said. ‘And sometimes, long times pass and I would prefer that my own retirement, my own membership on the court, not get involved in what I call those purely political issues.’
He also refused to criticize Ginni Thomas, the wife of conservative Justice Clarence Thomas, who’s been called to testify before the House January 6 select committee over her role in trying to overturn the results of the 2020 presidential election.
‘I don’t go through that in that I strongly believe that women who are wives, including wives of Supreme Court justices, have to make the decisions about how to lead their lives, careers, what kind of career, etc., for themselves,’ Breyer said.
‘I’m not going to criticize Ginni Thomas, whom I like. I’m not going to criticize Clarence, whom I like. And there we are,’ the liberal justice added.
Breyer said that while ‘sometimes’ there are two separate camps on the bench, the acrimony is ‘less than you think.’
‘Less than you think … but I can’t say never,’ Breyer said. ‘Maybe a little less jolly, but not I mean – I have not heard people in that conference room scream at each other in anger.’