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After the leak, the Supreme Court seethes with resentment and fear behind the scenes

Erin Schaff
Pool/AFP via Getty Images

At the Supreme Court, nothing is as usual this term after the leak of Justice Samuel Alito's draft opinion in the biggest abortion case in nearly a half-century.

Normally at this time of year, the justices would be exchanging hundreds of pages of draft opinions and working with each other to resolve differences and reach consensus in the most challenging cases of the term. Instead, the court is riven with distrust among the law clerks, staff and, most of all, the justices themselves.

The atmosphere behind the scenes is so ugly that, as one source put it, "the place sounds like it's imploding." To cite just one public example, Justice Clarence Thomas in a speech a few weeks agoseemed to say he no longer trusts his colleagues.

"When you lose that trust, especially in the institution that I'm in, it changes the institution fundamentally," he told a conservative group. "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."

Specifically, he implied that he doesn't trust Chief Justice John Roberts.

"The court that was together 11 year[s] was a fabulous court. It was one you look forward to being a part of," he said.

Those 11 years were when the chief justice was William Rehnquist, who died in 2005 and was succeeded by Roberts, who, ironically, had been one of Rehnquist's clerks many years earlier.

The root of the current antipathy is not definitely known. What is known is that Roberts infuriated some of conservatives on the court 10 years ago when he changed his mind and voted to uphold key provisions of the Affordable Care Act. These switches are rare, but they do happen; justices change their minds, and in good faith. But that switch so angered some of the court's conservatives that it leaked, obviously from someone connected to a conservative justice, who aimed to embarrass Roberts.

A much bigger leak — and problem

Now, there is a much bigger and, in fact, unprecedented leak to deal with — an actual draft opinion reversing a half-century of abortion precedents. The chief justice called the leak "a betrayal" and ordered the Supreme Court marshal to conduct an internal investigation. But the investigation may only be adding to problems at the court.

To begin with, the Supreme Court marshal overseeing the probe has no experience as an investigator; nor do the Supreme Court police. Their job is to protect the justices. And people who do have experience as investigators say that leak inquiries are, in the words of several, "nightmares."

Glenn Fine, a former inspector general for the Justice Department and then the Defense Department in both Democratic and Republican administrations, conducted and supervised lots of these investigations.

Typically, he wrote, in the beginning "we would be told that ... only a few people had access to the material that had been leaked. Only a few individuals were at the key meeting or worked on the document."

But, he said, "invariably when we probed the universe of people who had access," the number expanded "exponentially." Instead of a discrete few, the number included "additional co-workers, office staff, computer administrative staff, family and friends of those working on the matter, even people who passed through the office," and in the pandemic era, one might assume, the homes of the justices and others working from home. Fine said that even if there was some evidence of contact with a reporter, "we were usually unable to prove that the contact led to the leak." Therefore, most of the time, all the investigators ended up with were theories and speculation.

The internal investigation

Now, turning to this leak, CNN has reportedthat the court "has taken steps to" ask the clerks to sign sworn affidavits and to essentially dump their cellphones.

"Taken steps to" doesn't mean that anything has actually happened. But if the clerks have been asked to sign an affidavit, it is unknown what is in the affidavit or will be in the affidavit. And while the leak of a draft opinion is in fact a huge ethical breach, the draft is not classified, so the leak is not a crime. That said, lying in a sworn affidavit is.

So, imagine you swear under oath that you didn't have anything to do with the leak, and it turns out that your former college classmate is a reporter, and you had dinner with him in April prior to the leak; you could be in a heap of trouble. So, indications are that some law clerks are lawyering up. And some justices may forbid cooperation with a probe they see as a witch hunt.

Not to mention that if the court can dump information from a clerk's cellphone without a warrant, that directly contradicts the Supreme Court's own ruling eight years ago when it said that police could not search a suspected gang member's phone without a warrant after he was pulled over in a traffic stop.

Roberts wrote the court's unanimous opinion, saying that modern cellphones are not just another technological convenience. They are a compendium of everything in a person's life — your political preferences, interests, hobbies, medical records, where you have been and with whom.

"Allowing a warrantless search of all this information is not just an incidental intrusion like a peek into a cigarette pack," he said in summarizing the opinion from the bench. "It is a significant invasion of privacy."

The Fourth Amendment, he noted, was the Founders' response to the reviled "general warrants" of the colonial era, which allowed British officers "to rummage through homes in an unrestrained search for evidence of criminal activity."

A cellphone search, without a warrant, the court concluded, is no different.

A court in turmoil

Now, however, the court may be doing just that, and the terrified law clerks have been calling law firms, wondering whether they need legal representation. All of this presents its own ethical problems, since these law firms do have cases in front of the Supreme Court.

As for the court itself, it is not in a good place.

"I don't know how on earth the court is going to finish up its work this term," said a source close to the justices. The clerks, he explained, are sort of "the court's diplomatic corps." Especially at this time of year, they talk to each other, with the approval of their bosses, to find out how far the envelope can be pushed in this case or that one — or conversely, how can we soften language to get five justices on board. But at the moment, he noted, the clerks are terrified that their whole professional lives could be blown up, so they aren't able to do that. In short, it's a very perilous time for the Supreme Court.

Copyright 2022 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.