The U.S. Department of Justice is running a criminal investigation into one of the most serious breaches in the modern history of the Supreme Court — the 2022 leak of the draft opinion that overturned Roe v. Wade — The New York Times reported on Thursday, November 5. Federal prosecutors have stepped up the inquiry in recent weeks, issuing grand jury subpoenas for testimony and seeking information from people who worked at the court when the draft escaped, according to the Times and follow-up reporting by Fox News and the Washington Examiner.
The investigation is being overseen by Jeanine Pirro, the U.S. Attorney for the District of Columbia, the Times reported, with Carlton Davis, a prosecutor described as Pirro's top lieutenant, working on the case. A source familiar with the inquiry told the Washington Examiner that the probe is being handled primarily by career prosecutors. Fox News reported that the criminal investigation has been underway for at least a year. The Justice Department declined to comment, saying it would neither confirm nor deny an ongoing investigation.
What was leaked, and when
On May 2, 2022, Politico published a draft opinion written by Justice Samuel Alito in Dobbs v. Jackson Women's Health Organization. The draft showed that at least five justices were prepared to overturn Roe v. Wade, the 1973 decision that had established a constitutional right to abortion, and Planned Parenthood v. Casey, the 1992 decision that had reaffirmed it. The final Dobbs ruling followed on June 24, 2022, ending the nationwide constitutional right and returning abortion policy to the states.
The leak was unprecedented for the modern court, an institution that guards its drafts closely. Chief Justice John Roberts confirmed the draft's authenticity the day after publication, called the disclosure a betrayal of the court's confidences, and ordered the court's Marshal, Gail Curley, to find the source.
Source: The New York Times via Christian Post
The court's own investigation came up empty
The Marshal's investigators interviewed 97 court employees and law clerks, brought in forensic experts to trace who had printed or emailed the draft, and collected sworn affidavits from everyone with access to it. A few employees admitted telling their spouses how the case had come out and how the justices had voted. But the report released on January 19, 2023 concluded that, 'by a preponderance of the evidence standard, it is not possible to determine the identity of any individual who may have disclosed the document or how the draft opinion ended up with Politico.'
The 2023 report blamed pandemic-era working from home and gaps in the court's security policies, which it said made it too easy to remove sensitive information from the building — hard-copy documents moved between the court and homes, with no mechanism to track print jobs on court printers and copiers, and too many people able to access sensitive papers. Former Homeland Security Secretary Michael Chertoff, who reviewed the probe, said he could not identify additional useful investigative measures. The report never said whether the justices themselves were questioned. Last year, FBI Deputy Director Dan Bongino announced on his official X account that authorities would add more resources to the leak investigation.
Why a grand jury changes the case — and the legal problem ahead
A federal grand jury has the one tool the Marshal lacked: subpoenas that can compel witnesses to testify under oath. But identifying a leaker may not be the hardest part. As the Times reported, no federal law explicitly criminalises leaking a Supreme Court draft opinion, and it remains unclear what crime prosecutors could charge even if they find the source; legal commentary reported this week has suggested any charges might instead involve false statements to investigators. The inquiry may also require prosecutors to examine the justices' personal internal records on the Dobbs case, raising separation-of-powers concerns about the executive branch reaching into the judiciary's inner workings.
"It was a grave breach of the trust that everybody who worked in this building had before that point. It very predictably made the five of us in the majority targets for assassination." Asked whether he has an opinion about who leaked the draft, Alito said: "I do have an opinion. But the evidence available at this time is not strong enough for the court or for me to say this is the person who was responsible."
The danger Alito described was not theoretical. In June 2022, weeks after the leak and shortly before the final ruling, Nicholas Roske of California was arrested near Justice Brett Kavanaugh's Maryland home carrying a gun, a knife and zip ties. Roske pleaded guilty to attempting to assassinate a U.S. justice and was sentenced in October 2025 to eight years in prison. The leak also brought demonstrations outside the justices' homes and a security fence around the Supreme Court building in Washington.
Reaction split quickly. Senator Mike Lee of Utah thanked Pirro in a November 6 post on X, writing that the fact the leak 'has never been thoroughly investigated is inexcusable' and that it was time to find out who did it. Legal commentator Katie Phang, by contrast, called the probe 'farcical' in a podcast episode on Thursday and questioned what law the leak itself broke — a criticism prosecutors have not publicly answered.
What happens next
For now, the known facts are narrow: grand jury subpoenas are circulating, former court personnel are being approached, and no suspect has been publicly named and no charges announced. The Justice Department's refusal to confirm or deny the inquiry means the next development is likely to surface the same way this one did — through reporting, a court filing, or an indictment. For readers whose families follow U.S. abortion law state by state, the case also carries a practical reminder: the Dobbs decision itself is not being reopened by this probe. What is at stake is who breached the court's secrecy in 2022, and whether leaking a draft opinion is a crime at all.