Supreme Court to Scour Clerks’ Phones in Leak Investigation

Photo: Drew Angerer/Getty Images

In the month since a leaked draft opinion indicated that the Supreme Court is poised to overturn Roe v. Wade, conservatives have made it clear that they’re very distraught — not so much about the human suffering that will accompany the loss of abortion rights, but about the damage the leak did to the Court as an institution. Chief Justice John Roberts called the disclosure to Politico a “betrayal” in a statement announcing that he had directed the marshal of the Court to launch an investigation. And two weeks ago, Justice Clarence Thomas complained at length about the disclosure during a public event.

“Look where we are, where now that trust or that belief is gone forever,” Thomas said. “When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity, that you can explain it, but you can’t undo it.”

It turns out the cheating spouse is an apt comparison. Apparently, the Supreme Court’s leak investigation has yet to turn up any solid evidence, so now it’s entering the “scrolling through your call list” phase. CNN reports:

Supreme Court officials are escalating their search for the source of the leaked draft opinion that would overturn Roe v. Wade, taking steps to require law clerks to provide cell phone records and sign affidavits, three sources with knowledge of the efforts have told CNN.

It seems this is not going over well with the clerks, elite young lawyers who are selected to assist the justices for one-year terms. Some are reportedly so worried about being targeted in the leak investigation that they’re exploring whether they need lawyers themselves. Per CNN:

Lawyers outside the court who have become aware of the new inquiries related to cell phone details warn of potential intrusiveness on clerks’ personal activities, irrespective of any disclosure to the news media, and say they may feel the need to obtain independent counsel.

“That’s what similarly situated individuals would do in virtually any other government investigation,” said one appellate lawyer with experience in investigations and knowledge of the new demands on law clerks. “It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection.”

So far it’s unclear what exactly the affidavits will say and how extensive the cell-phone search will be. And curiously, we don’t know if anyone other than the clerks will be subjected to this intrusive investigation, though as CNN notes, there are dozens of other plausible suspects.

Other employees connected to the nine chambers would have had some access to the opinion. CNN could not verify that number, but former law clerks say the document could have been sent through regular channels to nearly 75 people. It is not known if court officials are asking employees who are part of the permanent staff, beyond the one-year law clerks, for their phone records.

Though there’s been wild speculation about one or more Supreme Court justices leaking the draft themselves, presumably the marshal of the Court won’t be rifling through their call logs. The Court has already demonstrated that it’s not that interested in probing behavior that threatens U.S. institutions when it gets a little too close to home.