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Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Friday, January 20th,
2023. It's about 1030 in the morning here, Central Time, I find myself in Austin, Texas today.
I'm very disappointed in the outcome of the Supreme Court's so-called investigation in order to find out who the leaker was of Justice Samuel Alito's draft opinion written by Justice Alito and temporarily signed off on
by five of his colleagues, I say temporarily because this was in February, which was four
months before the actual opinion came out, the draft was leaked. I surmised at the time
that it was leaked either by someone who wanted to cause an uproar to see if that person
could shake loose the weakest member of the majority, the Supreme Court justice who had the
most doubts about the opinion and who would fear the public uproar, or that it was leaked by someone
who wanted to lock that person in. But either way, in my view,
was then and still is now that the leaker is an inside person who either likes, liked the draft
opinion or hated the draft opinion. Well, the draft opinion is substantially the same as the
final opinion that came out. We all know the outcome there was a 63 vote to invalidate the parts of
Roe versus Wade that addressed abortion. There are parts of Roe versus Wade that do not address
abortion and that from a libertarian perspective are excellent. We're just talking about the
abortion parts of Roe versus Wade that was invalidated by the Dobbs opinion. And I applauded that, even though I thought there
was a better way to do it. And you will recall that that invalidation of Roe v. Wade took it
away from the federal government, said it's a state issue. The federal courts don't have
jurisdiction over it, and Congress can't legislate on it. Okay, that's where we are today.
But yesterday we learned that after a six-month
investigation, the marshals that work for the Supreme Court, many of whom are former military
intelligence, former FBI, sophisticated investigators, were unable to find the culprit.
Well, the reason they couldn't find the culprit is because they don't have subpoena power. They can ask people to talk to them, and those people can say, go take a hike.
If there were litigation or if there were a criminal investigation, then there'd be either
subpoena power by the lawyers in the litigation or subpoena power from a grand jury. So if Chief Justice Roberts
is serious about finding out who the leaker was, whether it's a member of the court or whether it's
a clerk for the court, it could only have been those 45 people, the nine justices and their 36
clerks. Nobody else would have had their hands on this. Maybe there's another 10 people that are in IT that work for the court. If,
on the other hand, it was some outside person, well, then we have a crime. And then that's the
basis for the criminal investigation. And the criminal investigation would give the FBI
and the federal prosecutors in Washington, D.C., the ability to summon a grand jury
and to issue subpoenas and maybe even to get some search warrants.
None of this is new to the chief justice, and he certainly doesn't need me to tell him
how these things work. But I'm not so sure that he's so serious about finding the culprit because this investigation was fruitless.
And if he really wants to find the culprit, he knows how to do it. More as we get it.
Judge Napolitano from a freezing cold, Austin, Texas, for Judging Freedom.