The day after Politico published a leaked draft opinion showing the Supreme Court was ready to overturn Roe v. Wade, Chief Justice John Roberts announced the court’s marshal would investigate said leak. Now, CNN reports that law clerks for the nine justices may be required to hand over cell phone records and sign affidavits, and some clerks are reportedly so alarmed by the request that they may lawyer up. (Leaking non-classified documents isn’t usually treated as a crime, but lying in an affidavit could be.)
Each justice typically has four clerks, and draft opinions would be sent to almost 75 people: “the nine justices, their clerks, and key staffers within each justice’s chambers and select administrative offices.” There would have been digital and physical copies and—ahem, family members could have had access to them:
There are protocols for handling drafts of court opinions, which circulate electronically on a closed system, separate from the computer system the justices and court employees use to communicate with people outside the court. Yet it is possible for printed copies to leave the building under even innocent circumstances, as work is taken home.
A bunch of conservatives—and justices themselves!—have chosen to focus on the impropriety of the leak, rather than its substance, and have suggested that “the left” is responsible or that a clerk for a liberal justice did it. They ignore the possibility that the leaker could have been someone close to a conservative justice who wanted to bully a wishy-washy vote into sticking with the maximalist outcome.
Importantly, CNN notes that the results of the investigation may not ever have to be made public. But the continued hand-wringing over who leaked the document and coverage of the probe conveniently distracts from something much more pressing: THE SUPREME COURT LOOKS LIKELY TO OVERTURN A 49-YEAR-OLD PRECEDENT AND LET TWO DOZEN STATES BAN ABORTION AND LEAVE OTHER IMPORTANT RIGHTS HANGING BY A THREAD.
Frankly, there are much better things the court’s marshal could be investigating, like, say, the activities of Ginni fucking Thomas. Roberts called the leak a “betrayal”—but what about the duplicity of now-Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, who all said during their confirmation hearings that they valued precedent?