The Supreme Court is filled with anger and fear after the leak.

After Justice Samuel Alito's leakage of his draft opinion in the largest abortion case in almost a half-century, everything is different at the Supreme Court.

09 June 2022 Thursday 07:13
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The Supreme Court is filled with anger and fear after the leak.

After Justice Samuel Alito's leakage of his draft opinion in the largest abortion case in almost a half-century, everything is different at the Supreme Court.

Normaly, at this time of the year, justices would be sharing hundreds of pages worth of draft opinions with one another and working together to resolve disagreements and reach consensus in the most difficult cases. Instead, the court is filled with distrust between the law clerks, staff, and most importantly, the justices.

According to one source, the atmosphere behind the scenes is so bad that it sounds like the place is imploding. Just one example: Justice Clarence Thomas, in a speech from a few weeks back seemed to state that he doesn't trust his colleagues.

He told a conservative group that when you lose trust in institutions, especially the one I work for, it can fundamentally change the institution. You start to look over your shoulder. It's like an infidelity. You can explain it, but you can't undo.

He implied, specifically, that he didn't trust Chief Justice John Roberts.

"The court that was together for 11 years was a fantastic court. He said that it was one that you looked forward to being part of.

These 11 years were when William Rehnquist was the chief justice. He died in 2005. Roberts was his successor. Ironically, Roberts had been Rehnquist’s clerk many years before.

It isn't clear what the root cause of current antipathy is. It is known that Roberts angered some conservatives by voting to keep key provisions of the Affordable Care Act. Although these switches are not common, they happen. Justices can change their minds and do so in good faith. The court's conservatives were so upset by the switch, it was leaked from someone who was connected to a conservative justice and aimed to embarrass Roberts.

There is now a much larger and more serious leak to deal with "aEUR", an actual draft opinion that reverses a half-century worth of abortion precedents. The leak was called "a betrayal" by the chief justice and the Supreme Court marshal was ordered to conduct an investigation. However, the investigation could only add to the problems at the court.

The Supreme Court marshal who oversees the probe is not an experienced investigator, nor are the Supreme Court police. Their job is to safeguard the justices. People who have worked as investigators know that leak inquiries can be a nightmare.

Glenn Fine was an ex-inspector general of the Justice Department, then the Defense Department under both Democratic and Republican administrations. He oversaw many of these investigations.

He wrote that, most often, "we would be informed that only a few people have access to the leaked material." Only a handful of people were present at the key meeting and worked on the document.

He said that "exponentially" the number of people with access increased "exponentially" when they probed the universe. The number was not limited to a few people. It included "additional colleagues, office staff, computer admin staff, family members and friends of those who worked on the matter," and, in the pandemic era one might suppose, the homes and offices of justices and other workers from home. Fine stated that even though there was evidence of contact with a reporter in some cases, it was not always possible to prove that this contact caused the leak. Consequently, the most common conclusion that investigators reached was speculation and theories.

CNN reports that the court has "taken steps" to ask clerks to sign sworn statements and to basically dump their cellphones.

"Taken steps towards" does not necessarily mean that something has happened. However, if clerks were asked to sign an affirmative, it is not clear what information is or will be contained in the affidavit. Although leaking a draft opinion is a serious ethical breach, it is not illegal to do so. However, lying in a sworn statement is a crime.

Imagine you are asked to swear that you did not have anything to do the leak. However, it turns out that your old college classmate is a journalist and that you had dinner with him in April before the leak. You could get into serious trouble. There are indications that law clerks may be getting ready to go. Some justices might forbid cooperation in a probe they view as a witch hunt.

The court can also access information stored on a clerk's cell phone without a warrant. This is contrary to the Supreme Court's original ruling of eight years ago, which stated that police couldn't search the phone of a suspected member of a gang after he was stopped for speeding.

Roberts was the one who wrote the unanimous court opinion, stating that cellphones are more than a technological convenience. They can be a complete record of every aspect of a person's daily life, including their political preferences, hobbies, medical records, and where they have been.

He said, summarizing his opinion from the bench that "Allowing warrantless searches of all this information are not an incidental intrusion as a peek inside a cigarette packet." It is a serious invasion of privacy.

He noted that the Fourth Amendment was the Founders' reaction to the reviled colonial "general warrants", which allowed British officers to "rummage through houses in an unrestrained search of evidence of criminal activity."

The court ruled that a cellphone search without warrant is the same as a warrantless one.

However, the court could be doing this, and fearful law clerks have called law firms to ask if they need legal representation. This presents ethical issues because these law firms have cases before the Supreme Court.

The court itself is in poor shape.

A source close to justices said that "I don’t know how the court is going finish its work this term." He explained that the clerks are "the court's diplomatic corp." They talk to one another, especially at this time of the year, with approval from their bosses to figure out how far an envelope can be pushed for this case or that one EUR" or, conversely, how we can soften the language to get five justices aboard. He noted that the clerks are afraid that their entire professional lives may be destroyed, so they don't have the ability to make that happen. It's a dangerous time for the Supreme Court.



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