Following the stunning leak of a draft Supreme Court opinion that appears poised to roll back nearly 50 years of guaranteed access to abortion, Chief Justice John Roberts pledged that the person who provided the document to Politico would be found. The high court’s hunt for the leaker has stirred controversy among legal experts, who gave varying responses to Law&Crime about whether law clerks should comply with the investigation.
“This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” Roberts said in a statement at the time. “I have directed the Marshal of the Court to launch an investigation into the source of the leak.”
It appears that the investigation is indeed underway, and according to reports, may be reaching into the private lives of Supreme Court law clerks.
According to a CNN report, officials conducting the investigation have been “taking steps” to require law clerks to provide cell phone records and sign affidavits in connection with the investigation into the leak of a draft opinion in the case of Dobbs v. Jackson Women’s Health Organization. That draft opinion, written by Justice Samuel Alito, appears to overturn the landmark 1973 Roe vs. Wade decision, in which the Supreme Court ruled that women nationwide have the right to access abortion through the second trimester of pregnancy.
According to Alito’s leaked draft, Roe was “egregiously wrong from the start.”
Some clerks are reportedly “so alarmed” by the investigation that they have started considering whether to hire outside counsel.
This, according to some, is exactly what the Supreme Court law clerks should do.
If any law enforcement official ever asks you to hand over your phone or phone records without a warrant, the answer is “no,” then “talk to my lawyer.” Supreme Court clerks know this better than most. https://t.co/KV1XVuqSOM
— Mark Joseph Stern (@mjs_DC) May 31, 2022
Wow. SCOTUS clerks are being asked to turn over their cellphone records in the leak investigation. If I were a clerk, I might refuse even if I weren’t the leaker. https://t.co/uQFs2qyDdT
— Dan Epps (@danepps) May 31, 2022
Attorney and Tulane Law School professor Ross Garber, who specializes in political investigations, told Law&Crime that, if true, asking for cell phone records is a significant escalation.
“This is quite an aggressive move, which arguably should be considered only after conducting interviews,” Garber said in an email. “The interesting questions are what will happen if one or more clerks refuse to sign an affidavit or provide cell phone records and whether the justice or justices they work for will support them. Clerks might be considering a refusal to cooperate on principle.”
Garber suggested that it might be time for the law clerks to lawyer up.
“It would be wise for the clerks to seek counsel who can advise them on their options and perhaps negotiate with the Court’s investigators,” Garber said.
But not everyone agrees.
“The law clerks have positions of very special confidentiality and responsibility, and a leak of this kind—though it shouldn’t distract our attention from the more important issue of what was in fact leaked and the importance of the impending overruling of Roe vs. Wade—nonetheless is extremely damaging to the court as an institution and to its ability to function,” Harvard Law Professor Laurence Tribe told Law&Crime on Tuesday. “If law clerks can’t be trusted by their justices, it’s almost as bad as justices not trusting one another.”
The responsibilities of the Supreme Court law clerks obligate them to cooperate with the investigation, Tribe said, echoing what he had posted on Twitter.
“I think whoever was the source of this leak really ought to be fired, and ought not to get all of the perks that go along with having been a clerk at the court, perks that are enormously valuable both in monetary terms, with the bonuses of hundreds of thousands of dollars that law clerks get, and in terms of prestige,” Tribe said.
Tribe added that he wouldn’t expect the same level of cooperation in other employment situations.
“All of those observations are unique to the Supreme Court,” he said. “I would not extend them to an ordinary workplace situation.”
Tribe emphasized that the biggest blow dealt to the Supreme Court by the leaked draft wasn’t to the court’s credibility in the eyes of the American public—the court, Tribe said, has been “damaging its own credibility” for decades by being “much too casual in its willingness to let partisan ideology drive results”—but to the court’s ability to function well enough to do its job.
“I’m talking about the ability of the court as a collegial institution to get its work done,” he told Law&Crime.
“The relationship between law clerks and their justices, and among the justices, is extremely close and confidential,” Tribe said. “Justices have to feel free to express their views to one another in initial drafts without thinking they’ll be ventilated publicly. Without that, the court might as well stop functioning.”
Tribe said that finding the source of the leak—and firing them—will make it “much less likely that this kind of breach would occur in the future.”
Tribe noted that there is a “finite number of people who see these drafts,” including secretaries, some Supreme Court staffers, and, possibly, the spouses of the justices.
“I think many of the justices would quite naturally share some of their work with their spouses even though they’re not supposed to,” Tribe said, before implying that other, perhaps spouse-related controversies, possibly could also be resolved with a similar level of transparency to what is being asked of the law clerks. (Tribe did not specifically cite the case of Ginni Thomas, whose Jan. 6-related text messages increased scrutiny of her Supreme Court justice husband.)
“I think its only fair that everyone who might have seen this draft be under at least some moral pressure to clear their name by sharing with the marshal of the court, on a confidential basis, the same kinds of personal information that the law clerks are being asked to share.”
The Supreme Court’s public information office did not reply to Law&Crime’s request for comment.
[Image via Chip Somodevilla/Getty Images]
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