When the Supreme Court announced yesterday that its investigation into the leak of the Dobbs decision had been inconclusive, one point that some news site highlighted was that the Justices themselves had apparently been excluded from the investigation. For instance, this story from Jezebel strongly focused on the idea from the second paragraph:

…this report is far from conclusive, as it appears the investigators did not question the nine justices themselves. Those justices include Sam Alito, who allegedly leaked a birth control opinion in 2014, and Clarence Thomas, whose wife Ginni is a conservative activist who tried to overturn the 2020 election of Joe Biden.

Legal journalist Chris Geidner highlighted that on page 3, the report says: “The investigation focused on Court personnel—temporary (law clerks) and permanent employees—who had or may have had access to the draft opinion during the period from the initial circulation until the publication by Politico.”

Jezebel then highlighted a statement from a progressive group called Take Back the Court that is promoting court expansion. That statement also leaned heavily on the idea that conservative Justices they consider under suspicion hadn’t been interviewed.

“As Justice Alito and his right-wing colleagues promote the results of their sham investigation, we should not lose sight of the irony of this probe: that the Court has lamented the violation of its own purported ‘right to privacy’ at the same time it dismantled this very same right for pregnant people across the country in order to rip away their access to abortion.

“At the same time, the question remains: were Justices Thomas and Alito, perhaps the most ethically dubious justices on the bench — who reportedly had extensive contact with outside anti-abortion forces prior to the Dobbs decision — interviewed? The report doesn’t say, and the Court must be asked. Given what we know about Alito and Thomas, if nobody talked to them directly, that seems like an admission by omission.

This reasoning was pretty common: If the leaker wasn’t found and only the Justices weren’t question, therefore the leaker must be one of the Justices.

Occam's Razor: eliminate all unlikely answers to identify the likely one.

After extensive investigation being conducted w/no result based on low preponderance of evidence, who was not interviewed? The Justices.

What does that tell you? https://t.co/4sAqPQota1

— Mark S. Zaid (@MarkSZaidEsq) January 20, 2023

There was increased certainty for some commenters that the failure to find the culprit meant the person responsible was a conservative.

I told everybody, from the very beginning, that if the Dobbs leaker turned out to be a Republican, the Supreme Court would somehow never find who did it.

Welp, the report's out and, what do you know, they don't know who did it.

— Elie Mystal (@ElieNYC) January 19, 2023

Laurence Tribe jumped on it. He was responding to Peter Strzok who has since deleted his tweet.

Right. The Justices evidently weren’t interviewed! https://t.co/N3r180ruyC

— Laurence Tribe (@tribelaw) January 20, 2023

Norm Ornstein:

Odds that the Court interviewed any of the justices are zero. Including, of course, Alito and Thomas. Much less Ginni. https://t.co/azeHhaURzq

— Norman Ornstein (@NormOrnstein) January 19, 2023

And so on:

All this talk of interviewing employees. Not a word about interviewing the justices. What am I missing? https://t.co/OrssaCWH4Z

— Irin Carmon (@irin) January 19, 2023

So today the Court clarified that all nine Justices were in fact questioned, some more than once, about the leak.

“During the course of the investigation, I spoke with each of the justices, several on multiple occasions,” Ms. Curley said. “The justices actively cooperated in this iterative process, asking questions and answering mine.”

However, she said, she did not ask the justices to sign sworn statements attesting that they had not leaked the draft opinion or information about it after the interviews, unlike dozens of clerks and permanent employees of the court. She also did not say whether she had interviewed any of the justices’ spouses.

“I followed up on all credible leads, none of which implicated the justices or their spouses,” she said. “On this basis, I did not believe that it was necessary to ask the justices to sign sworn affidavits.”

With their first fallback having been eliminated, some of these same progressives are now doubling down.

Over 24 hours later, 4pm on a Friday: The justices were interviewed but didn't even have to pinky promise. https://t.co/Ssf3Fcq2z3

— Irin Carmon (@irin) January 20, 2023

If the marshal was so certain the justices weren't involved with the leak, she could've simply asked them to sign a sworn affidavit saying so, just like everyone else. It would not have been difficult. If she has a good reason for refusing to do so, she has not provided it!

— Mark Joseph Stern (@mjs_DC) January 20, 2023

That appears to be the approach going forward. The marshal didn’t make the Justices sign sworn affidavits therefore one of the Justices is probably the leaker. Maybe one day we’ll find out but I doubt it will be soon.