Supreme Court Hunt for Who Leaked Draft Roe v. Wade Opinion Has No Road Map

The Supreme Court marshal tasked with finding out who leaked a draft opinion overturning Roe v. Wade, the landmark 1973 abortion-rights case, is a retired Army colonel with untested investigative powers to uncover the breach, which was extraordinary but might not be criminal.

Gail Curley, whose public duties include calling the court to order with “Oyez, Oyez, Oyez,” will seek to determine the source who shared the draft, which was published Monday by Politico.

The marshal oversees the Supreme Court Police Department, a federal law-enforcement agency that isn’t known to have ever conducted a leak investigation, a person familiar with the matter said. The primary functions of the fewer than 200 officers are crowd control and personal protection for the justices.

Chief Justice Roberts’s decision to rely on the marshal, rather than enlisting a large agency like the FBI, suggests the court wants to keep the controversy in-house, court observers said. Other law-enforcement agencies with potential jurisdiction fall under the executive branch, the District of Columbia city government or, in the case of the Capitol Police, Congress; the marshal reports only to the court.

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“It is not the most aggressive way to pursue” an investigation, said John Q. Barrett, a law professor at St. John’s University. “It’s a careful, nearby, trusted employee who can take on this task. It keeps it close and maximizes confidentiality.”

A Supreme Court spokeswoman didn’t respond to requests for more information about how the investigation might unfold or whether Col. Curley would be made available for an interview.

Court observers said the probe will likely first focus on a small group of people who have access to draft opinions: the nine justices, their 36 law clerks, and a small number of judicial and executive assistants in each office.

“It’s a tightknit group of people who work in that building,” said Allison Orr Larsen, a William & Mary Law School professor who was a law clerk to retired Justice David Souter. “Confidentiality is highly prized.”

When Ms. Larsen served, clerks were under strict orders not to take written work out of the building, and some worked on computers that couldn’t be accessed outside the court. But justices and staff have at times been working on laptops at home during the coronavirus pandemic, potentially expanding the pool of suspects to include roommates or family members, observers said.

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The authenticity of the draft, written by Justice Samuel Alito and circulated internally in February, was confirmed by the Supreme Court. The draft “does not represent a decision by the Court or the final position of any member on the issues in the case,” the court said.

Before joining the court in June, Col. Curley supervised a team of Army judges and lawyers as the chief of the National Security Law Division in the Office of the Judge Advocate General, a biography on the Supreme Court’s website says. She also provided legal advice and support on national-security law to senior Army leadership.

In her current post, she is an officer of the court and not part of the U.S. Marshals Service.

“In a sense, she is a supervisor of the pool of suspects,” Mr. Barrett said. “Everyone who works in the building is under her management.”

Congress has authorized the court police to enforce any federal or state law on or near the court’s grounds. According to the court’s website, the “department’s mission is to ensure the integrity of the Constitutional Mission of the Supreme Court of the United States by protecting the Supreme Court, the Justices, employees, guests, and visitors.”

It is unclear how extensive the investigation will be. The court’s announcement didn’t define the parameters of the probe. At this point, neither the FBI nor the Justice Department has been asked to help, a law-enforcement official said.

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“To run an effective leak investigation, especially against someone who is sophisticated, it would be extremely important to have the ability to compel both suspects and third parties to turn over relevant evidence,” said Kellen Dwyer, a former federal prosecutor who is now at the law firm Alston & Bird.

But in this case, Justice Department involvement might not be an option; unlike leaks of classified information, which can be unlawful, the disclosure of internal Supreme Court documents might not qualify as a crime, Mr. Dwyer and others said. “Even if you could find a statute that applied, you’d have a really hard time in the courts,” he said.

Court watchers couldn’t recall any other instance in modern times in which a chief justice publicly ordered an internal leak investigation.

In 1973, when Time magazine reported the outcome of the Roe decision before it was announced, Chief Justice Warren Burger wanted each justice to question his law clerks and even considered calling the FBI to administer lie-detector tests, reporters Bob Woodward and Scott Amstrong wrote in their book “The Brethren: Inside the Supreme Court.” The chief ultimately stopped short of that, when a clerk for Justice Lewis Powell admitted to giving the reporter background guidance so he could write an accurate story when the decision came down.

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“This is a much more grave thing,” Mr. Barrett said. “Maybe every justice will take it very seriously and direct his or her employees to cooperate with whatever the marshal is doing.”