Jodi Kantor of the Supreme Court Abortion Leak

SARA SIDNER, SENIOR CORRESPONDENT: Next, the overturning of Roe V. Wade created a political firestorm, both outside and inside the U.S. Supreme Court. A leaked draft opinion sparked an investigation into the institution but failed to find whoever was responsible. “New York Times” investigative reporter, Jodi Kantor, has reported extensively on the leak and the inquiry with her latest piece detailing the distrust that now exists among the courts’ employees. She talks about the impact of this investigation with Hari Sreenivasan.

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HARI SREENIVASAN, CORRESPONDENT: Jodi Kantor, thanks for joining us. This is a story you have been following and reporting on at “The New York Times” for months, the leak from the Supreme Court. Just in case people have forgotten what happened, what was the leak itself?

JODI KANTOR, INVESTIGATIVE REPORTER, “THE NEW YORK TIMES”: Last spring, the Supreme Court overturned the right to abortion, they overturned Roe V. Wade. But as if that was not major news enough, the decision actually leaked well beforehand. And it — slightly similar things had happened but nobody can really remember this exact thing ever having happened at the court. You know, this draft opinion that was written in February shows up in May, in public, in “Politico”, and that is how the public learns that the right to abortion has been overturned. And this is a very secret institution. It guards its deliberative process very closely. And so, you know, there is the, sort of, vague story of what’s going on with abortion in America. But there’s also a story of what’s going on with the Supreme Court, which has had many problems in controversies and scandals recently. And the latest one has become what happened to the investigation into that leak and was the investigation fair? And did the courts attempt to, sort of, fix its own problems or actually make things worse?

SREENIVASAN: You know, for people who aren’t familiar with the processed of the Supreme Court, I mean, they actually have the justices make their decision, so to speak, and then the opinion is kind of circulated around. Their clerks are all writing it and redrafting it, et cetera. It’s not like the day before the opinion comes out is when the vote happens, right? So, what is it in between that time when the justices have kind of weighed in. They’ve heard their argument, until the time that you and I traditionally hear about the decision from the court. How many people have access to this information? Who gets to see it? Who could have possibly leaked it? What did the investigation find?

KANTOR: Well, so the justices spoke after the oral arguments in Dobbs which were in December of 2021. And they take — you know, they have a meeting where they take a kind of, like, early vote. And at that point, it looks like Roe — it looked like Roe was going to be overturned. So, some people in the building knew that, for example, the clerks, you know, who are very close to the justices knew that. But here was no draft opinion yet. The draft opinion that leaked has a February date on it. So, you know, in February, this draft goes around the chambers of the Supreme Court. And to answer your question, at that point, it goes to a pretty big group of people. The Supreme Court said in a report that it was about 80 people who got that, and there are both electronic and paper copies. And one of the, sort of, surprises of this reporting is that people really talk to me about how weak the information security was at the court. They talk about, like, burn bags (ph) filled with documents waiting to be destroyed just sat around for days. You know, we’re left in places they could be accessible. There weren’t clear rules on what could be brought home and what couldn’t. So, when you really look at the number of people — the number of people who definitely had access to the draft is around 80. But then if you really look at the holes, it begins to get kind of exponential.

SREENIVASAN: So, let’s talk a little about the process of the investigation itself. Chief Justice John Roberts, he wanted to do this himself within the court. Why was that important to him?

KANTOR: Well, he wanted the courts marshal to control it. And I think that’s because John Roberts really prizes the courts independents. And for good reason, I mean, he says this is the separate branch of government and for separation of powers issues and for the health of our democracy. You can’t — you — you know, it — his viewpoint is, I think, very logical in so many ways.

SREENIVASAN: Sure.

KANTOR: I don’t think any of us would want political incursion on the court. So, that would be really, really scary. But there’s also a question of, can this institution truly run itself? Because you’ve got, essentially, nine individually confirmed justices. And while John Roberts is the Chief Justice, he’s not really their boss.

SREENIVASAN: Uh-huh.

KANTOR: I mean, it’s actually kind of surprising and confusing. He is more an administrator of the court. Someone compared him to, like, a faculty dean, you know, who has all these professors, you know —

SREENIVASAN: Yes.

KANTOR: — to wrangle. And so, when the court has a problem, when there is a scandal, when there is a controversy, when there is an ethics breach, who — how do you really address it, right? This is a riddle because in its very nature, the court is supposed to be the last word and the highest authority.

SREENIVASAN: So, what was the infrastructure that Chief Justice John Roberts had at his disposal to carry this out? Who actually did the investigating?

KANTOR: It was slender compared to what a lot of other Washington bodies have. So, the marshal of the Supreme Court, her name is Gail Curley. She’s a former army lawyer. People describe her as, you know, experienced, smart, professional person. So, none of this is meant to impede in her personally. The question is just whether she had the infrastructure to do this. If you go over to the FBI, or if you go over to the Department of Justice, there are people who do, like, very little about investigations, right. This is their business. The fine points they’re really versed in. The marshals’ office of the Supreme Court is much more of a grab bag. You know, they’ve got a security function but providing security for a justice who’s going to a cocktail party is very different than performing a leak investigation. And also, there are parts of the marshals’ office that have nothing to do with, you know, security — you know, secrecy, et cetera, et cetera, investigations at all. So, you know, there is always this — from the moment of the leak, pretty much, there were some public debate about who could do this. Because, you know, the Supreme Court is not going to call an outside law firm, you know, the way most businesses would to perform their investigations. And so, you know, the dilemmas were genuine and they were structural. And yet, even knowing that John Roberts had some very difficult choice, this investigation still turned out, I think, much worse than most people thought it would. And that’s because the justices were not interviewed in a rigorous way.

SREENIVASAN: Explain that. What does that mean?

KANTOR: So, what my reporting was really about, the question I was really pursuing is that, you know, I started to hear weeks ago from sources who said some things that almost didn’t make sense. What they were saying is that employees, clerks, you know, Supreme Court staff, these people were being grilled hard, you know. Truly investigated. Forced to sign affidavits, you know. Some of them had to hand over their cell phones. They were told that misstatements could result in criminal liability. That their jobs were at stake. They were pressed about, you know, very — like, for example — you know, the report says, some of them admitted that — you know, they told their partners, for instance, about this. So, they were pressed on all these fine points. And then, what sources were saying, initially, is like, we don’t think the justices were questioned and people inside the building were alarmed by that. They felt it was unfair. You know, a basic principle of the law is that everybody is equal under it. And in fact, it says that on the Supreme Court building. And so, I think people inside the building were asking a legal question of on a fairness basis, how could you not question the justices? But they were also asking a logical question which is, how can this be a real investigation if the central nine figures who, by the way had more access to the draft than anybody else are not questioned?

SREENIVASAN: So, did the Supreme Court justices ever have to give interviews, interrogations, however you want to put it under oath, so to speak? Is it written in transcripts somewhere that under threat of perjury that here is what I declare about that I had nothing to do with leak?

KANTOR: No, the Supreme Court has basically admitted that it didn’t happen. So, they released this report with a fair amount of detail about the investigation. But they left out the glaring question of whether the justices had been interviewed. And they got so many questions that they had to release a kind of follow-up statement that was very vague and said that the marshal had had iterative conversations with the justices. And that she felt satisfied that they did not need to sign the affidavits. So, that was very confusing. What’s an iterative conversation? What were they asked, especially in contrast with the kind of stark detail about what everybody else asked?

SREENIVASAN: Yes.

KANTOR: And, you know, it basically it amounted to an admission that the marshal had spoken to the justices, but not in the rigorous structured way that other people had been spoken to.

SREENIVASAN: It almost lands credence to the idea that you should have somebody from the outside come in because it’s almost like —

KANTOR: Yes.

SREENIVASAN: — you’re giving the Supreme Court justices some difference. I mean, you know, obviously, this is Supreme Court Justice. You are good for it. What I’m asking you this question. Versus your clerks, the janitor, everybody else, who I’m going to almost put under oath and say, hey, you’re never going to work in this town again if you lie to me.

KANTOR: Placed to the bigger theme of a lot of controversy about the Supreme Court now, which is the same question keeps coming up, which is, could it be that the people on the highest court in the land are actually held to lower standards than everybody else? For instance, Supreme Court justices are not bound by the same ethics rules as their federal judges. Why is that? Why do we subject people who have more power to less scrutiny?

SREENIVASAN: That’s been coming up because, in part of Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, and her support of some of the activities that were happening during the January 6th Insurrection. Supreme Court Thomas hasn’t recused himself from anything.

KANTOR: Correct. And it also came out because of a story that Jo Becker and I published about the “2014 Hobby Lobby” decision which allegedly was shared before it was shared with the public. And there’s a man named Reverend Rob Schenck, he used to be a leader of the anti-abortion movement. He since changed his views. But he essentially told us the story, not only of how he says, he got that information early, but a kind of influence campaign. The story he has to tell he can prove. We found a lot of documentation. So, essentially, he placed wealthy conservative donors with Supreme Court justices to kind of stiffened their spines on abortion rulings. So, you know, the question is, if something like that happens, how do you prevent it, you know? Is there any accountability? Are — what are we — one of them is fascinating parts of that reporting is delving into, well, what are the rules of the Supreme Court and how much of this is actually against the rules?

SREENIVASAN: What are the rules they are bound by? And compare that to public officials where we expect X or Y behavior.

KANTOR: OK. So, when I started writing about the court last year, one of the things I was most surprised by, and I don’t think that, you know, most Americans and even maybe most Americans who watched the show know this. Supreme Court justices are actually not bound by the same ethics rules that other federal judges are required to obey. The justices consult these rules, but they are not hard in facts to the way they are for lower court judges. And that’s really surprising because you say to yourself, like, how is it that, you know, the people at the very top of the heap don’t have to abide by the most stringent ethics rules there are? And, you know, I will give you some comparisons to other branches of government just to give you a sense of the difference between, sort of, what the Supreme Court does and how other places do it. The White House as visitor logs. So, we have the ability to know who is visiting the president. They are not perfect. But, you know, they serve a real purpose. Congress has lobbying rules and disclosure rules. Has that solved the problem of lobbying being, you know —

SREENIVASAN: Right.

KANTOR: — too great a force in American public life? No. But there’s a fair amount of disclosure and there’s a fair amount that’s visible. The Supreme Court is much more — it is much obscured. Now, they would say that because they hold the oral arguments in public, and because they actually publish their decisions. There is a certain kind of visibility in that. But I think it’s — I think it’s absolutely true that we know very little about this institution and about the justices. They really do work from behind a curtain.

SREENIVASAN: Did you have a chance to speak to any of the Supreme Court justices or did they respond to you in any way about your reporting?

KANTOR: You know, we always go to the, sort of, the public information office at the Supreme Court and they did not engage on the story but, you know, they released this public report.

SREENIVASAN: Why is this time different? If there have been leaks in the Supreme Court in the past — I mean, look there are some reporters who covered the courts who are so good at this, that you kind of feel like you must be talking to a justice because you almost telegraph —

KANTOR: Yes, that’s a great point.

SREENIVASAN: Right? I mean — so, let’s just assume that there is communication of some sort that gets out of the Supreme Court. Was it just the specific — the nature of this case because it had to do with such a third rail issues like abortion? Was it something else that makes this so impactful on us?

KANTOR: Well, I think the answer is in two parts. The first is, sure. I mean, this is — this was the overturning of a right that people had. That abortion has long been, perhaps, the most, you know, sensitive hot button issue in America. Public opinion has been divided for a long — as long as we’ve known, it right? And we’ve — I don’t think you or I have ever lived in an era in which, you know, Americans really agreed about abortion. And so, part of it was the scale of the case. How intimate it is, you know, to people’s bodies. It’s literally who’s going to be born, you know, or not. But I think that now it’s entering into a second stage, which is that, because the leak investigation had this giant problem, the story is shifting. And in my interviews, people talked less about the right to abortion, a lot less, and much more about is the Supreme Court a fair place?

SREENIVASAN: So, what kinds of things will the Supreme Court do to try to prevent this from happening again?

KANTOR: Well, I mean, there is — the most literal answer, is that there are plenty of new security measures in place. I mean, over the summer they, you know, redid some of their security measures. The report released last week has yet more promises to do so. But I think your question hints at a bigger one, which is what can the court really do to repair and write itself with? And how do you — you know, does it matter what the public thinks because there are purists (ph), you know, who believe, like, that the court should be so independent, that it cares only about the law. And are there are steps that can take to regain the public trust? Is it equipped to do? And you know, we’ll have to see.

SREENIVASAN: Jodi Kantor of “The New York Times”, thanks so much for joining us.

KANTOR: Thank you.