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Supreme Incompetence

The investigation of the Dobbs leak proves that elites’ incompetence knows no bounds.

Annual March For Life Held In Washington, D.C.
(Photo by Anna Moneymaker/Getty Images)

On Thursday, January 19—three days before the 50th anniversary of a Supreme Court decision that killed 60 million Americans and eight months after someone leaked the opinion that would overturn it—SCOTUS Marshal Gail Curley, who was charged with investigating the security breach, announced that she had simply given up.

A statement from the Court on throwing in the towel simply admits that “the team has to date been unable to identify a person responsible by a preponderance of the evidence.” They interviewed 97 people, looked through some outdated computer systems, reviewed personnel training policies, then called it a day.

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With the resources of the federal government at their disposal and a good bit of the work already done for them, the marshal and her team could not connect the fairly few dots between disgruntled SCOTUS staff and the leaking team at Politico. They actually seem to know less, after months of ostensibly professional investigation, than amateur Twitter sleuths were able to uncover in the first few days after the leak. 

To give the surrender a sense of legitimacy, the Court hired Michael Chertoff, former secretary of Homeland Security, to review its investigation. Unsurprisingly, Chertoff concluded that he could not “identify any additional useful investigative measures” that might help the Court determine one simple fact after an eight-month investigation.

Like the marshal herself, Chertoff also suggested some reforms that might prevent a repeat of the Dobbs leak in the future. Chertoff’s final recommendations to the Court consisted of:

  1. Restricting the distribution of hard copy versions of sensitive documents
  2. Restricting email distribution for sensitive documents
  3. Utilizing information rights management (IRM) tools to better control how sensitive documents are used, edited and shared; and
  4. Limiting the access of sensitive information on outside mobile devices

The questions this raises should be fairly obvious: was the Supreme Court not already doing all of that?

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Did the highest tribunal of the most powerful empire in the history of the world really operate with less information security than a small-town public library? Did it take a breach of confidentiality on the most important case it had considered in half a century for anyone to notice that?

It would not be unreasonable to ask whether the investigators really did the best they could. Are we really supposed to believe that the federal government’s law enforcement tentacles can reach into the pocket of each and every one of the tens of thousands of people who wandered in the general vicinity of the Capitol on January 6, but they can’t identify one out of 97 candidates as the primary actor in one of the most publicized events of the last year?

But that’s a tough nut to crack, and fed incompetence knows few bounds.

Let’s take them at their word. They really were incapable of determining which employee of the United States Supreme Court leaked a major draft decision in an effort to put pressure on justices’ votes. In a way, that’s worse.

When we speak of “the legitimacy of the Court” moving forward, we can do away almost entirely with the liberal-democratic platitudes, the paeans to deliberative democracy, the whinging over politicization, the half-deification of Ruth Bader Ginsburg and the pearl-clutching over Amy Coney Barrett.

Let’s talk about minimum competence. Decades of hiring Ivy-grad clerks who have never come near the classics that once animated lawyers’ minds and who fell into the business hoping for a cross between The West Wing and Legally Blonde have ended exactly as any sensible person could have told you they would end. Intelligence and ethics have both given way to a Sorkinesque sense of intrigue and melodrama.

And so, in the third millennium, SCOTUS clerks who couldn’t have passed the bar a century past usurp the prerogatives of their constitutionally empowered superiors because seven years of classes on situational ethics convinced them that it’s the right thing to do. Then, when the damage is done, slipshod investigators make a show of looking into it before throwing in the towel after just enough time to preserve appearances.

This is the essence of civilizational decline. Law is a science, and jurisprudence is perhaps its highest form. Yet we wonder at how our ancestors fumbled the magic of concrete as we watch the structure of government collapsing all around us.

There are closer comparisons, too. In California—which not too long ago seemed to embody all of America’s hope and promise—an effective drought continues despite record rainfalls. Enough water has dropped on the Golden State to kill seventeen people in the last few weeks, yet the collective intelligence of the high-tech haven cannot be mustered to direct that resource in service of human needs. It is a human failure as much as it is a material one, with the loss of hard science and competence reverberating into social catastrophe.

It’s a striking enough image of where California, and the Court, and the country have wound up: caught between a desert and a flood.

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