SCOTUS Clerks Ordered to Turn Over Phone Records


In a startling move indicative of the seriousness with which the Supreme Court of the United States is investigating the leak of the draft opinion in the Mississippi abortion case, the investigators have ordered the Justices’ law clerks to hand over their phones to investigators. This is an extraordinary step on several levels. First, there is no individualized suspicion, it’s a sweeping move that targets a group, not a suspected person. Second, as of yet, there hasn’t been word of a suspected crime that would have been committed by leaking a draft opinion, though that doesn’t mean that a crime won’t eventually be found to fit a charge of some kind.

From CNN:

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.

Some clerks are apparently so alarmed over the moves, particularly the sudden requests for private cell data, that they have begun exploring whether to hire outside counsel.

The court’s moves are unprecedented and the most striking development to date in the investigation into who might have provided Politico with the draft opinion it published on May 2.

It certainly is unprecedented and it certainly would be a good idea to hire one’s own outside counsel. It is not unthinkable that a law clerk that did not leak the opinion may have shared a hint or even revealed the decision with a loved one with a pledge of secrecy, perhaps even an old law school friend but again with the promise of secrecy. So it is possible that even the clerk that did not leak the opinion may be found to have violated their promise.

The basis of the request also carries with it what might be a dangerous presumption. It is not out of the question that one of the justices, perhaps working with a clerk, could have asked that the draft opinion be leaked as part of an agenda, perhaps to keep the “block of five” locked in. If Chief Justice Roberts were able to persuade another justice to join him in only upholding the MS law, it would at least preserve the right to an abortion as some kind of right, however limited.

Regardless, this is a very serious and sweeping step indicative of just how serious the court is taking the matter.

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