Is the SCOTUS Leak Investigation Legal? Maybe, But It Is Also Hypocritical and Potentially Counterproductive


Last week, journalist Joan Biskupic reported that Supreme Court Marshal Gail Curley—who heads the internal investigation into the leak of Justice Samuel Alito’s draft opinion overruling the constitutional right to abortion—was seeking signed affidavits and mobile phone records from law clerks. Ironically, the very first paragraph of Biskupic’s article attributes the revelation to “three sources with knowledge of the efforts,” thus indicating that even the investigation of the leak is leaking.

Irony aside, the leak and the investigation of it should be kept in perspective. Chief Justice John Roberts was not wrong to characterize the opinion’s leak as a “betrayal” and an “egregious breach of” the trust that the Court lodges in its personnel and staff. However, the leak pales in comparison to the much more egregious breach that Justice Alito and four of his colleagues seem poised, even eager, to allow government to undertake—a breach of the very bodies of those Americans who find themselves carrying unwanted pregnancies. Accordingly, in focusing today’s column on the leak investigation, I do not mean to distract attention from the much larger and imminent betrayal of the Constitution by a majority of Justices sworn to uphold it.

Who Might Have Leaked?

The leaked draft that Politico published last month shows staple marks and was thus likely handed over as hard copy rather than as a computer file. In theory, anyone working at or with access to the Court’s restricted areas, including cleaning staff or even an invited guest, could have obtained a printout of the draft from an unmonitored desk or elsewhere, but as a practical matter that seems unlikely. Although Politico published the leaked draft without identifying its source, the initial story attributed further information to “a person familiar with the court’s deliberations.” Subsequent stories, including but not limited to Ms. Biskupic’s article last week, indicate that several knowledgeable persons have been in contact with journalists. Thus, as a practical matter, Ms. Curley’s team can probably focus most of their attention on the law clerks.

Many commentators have speculated about who leaked the draft and why. The leading hypotheses, in my view, are: (1) a liberal law clerk outraged by the decision, hoping to bring negative public attention to the Court, possibly in the further hope of leading one or more Justices to temper the draft or result, and/or possibly seeking to give political actors advance warning in shaping proposed legislation and electoral campaigns; or (2) a conservative law clerk worried that Justice Alito’s draft might not end up as the majority opinion and hoping that Justices who voted to overrule Roe v. Wade at conference would have their spines stiffened by public opposition. These competing theories depend on different predictions about the reaction of the Justices to the anticipated public reaction to the leak.

Other possibilities also exist. Perhaps one of the Justices themselves leaked the draft or approved of a law clerk’s doing so. Or maybe the initial leak was accidental—a result of improper handling of a sensitive draft that fell into the wrong hands—but it was followed by someone with knowledge talking to reporters. At this point, we outside observers can only speculate.

What’s Wrong With Leaking?

So far as I am aware, the leak violated no law. Attorney Mark Zaid, who has represented leakers, confirmed that view to the Washington Post last week. Supreme Court draft opinions are not, after all, classified.

Nonetheless, the leak was a clear breach of a very strong norm. I recall that when I started my year as a law clerk at the Court thirty-one years ago, Chief Justice William Rehnquist admonished all the new clerks to keep the Court’s confidences. I do not recall whether he referred us to any formal written policy, but it was made crystal clear that we were not to discuss pending cases—or anything involving the Court’s work—with journalists or other outsiders. Clearly not everyone heeded that admonition. News stories and books about the Court from time to time report on internal deliberations and changed votes that could only have come from Justices or law clerks. Still, no one doubts that leaking a draft opinion was, as Chief Justice Roberts declared, an “egregious breach” of the Court’s norms.

Nor is the Chief Justice mistaken in his view that leaking a draft opinion undermines trust within the Court as an institution. The argument for confidentiality of judicial deliberations parallels similar arguments in other settings, including within the executive branch of government as well as more mundane contexts, such as the management team of a company making a sensitive hiring decision. The risk of leaks undermines frank deliberations. There is thus nothing problematic about the Chief Justice or other Justices being upset about this leak or wishing to deter future leaks.

The Investigation

The difficulty is that the leak investigation seems to be intensifying the very harm that the leak itself presents. With law clerks “freaking out” about the investigation and considering hiring attorneys to represent them, the atmosphere at the Court can hardly be harmonious or even conducive to the regular conduct of business. Moreover, the request to turn over mobile phone records is problematic.

Even if leaking a draft opinion were a crime, that would not provide the government with the authority to search the mobile phones of every possible suspect. In the 2014 case of Riley v. California, Chief Justice Roberts wrote for a unanimous Court that police need a warrant based on probable cause to search a mobile phone. Each Justice has four law clerks, plus one for retired Justice Kennedy, for a total of 37. That means that the likelihood that any one law clerk was the leaker is less than 3 percent. Although the courts resist quantifying probable cause, a less-than-three-percent chance of turning up evidence surely does not qualify.

However, Riley’s logic might not apply because that case involved searching an entire mobile phone, which, as Chief Justice Roberts observed, contains an enormous quantity and variety of data, amounting to “the sum of an individual’s private life.” By contrast, at least according to Ms. Biskupic’s reporting, the investigators seek only mobile phone records. If the investigators seek only the phone numbers that law clerks called, the controlling precedent would be the 1979 decision in Smith v. Maryland, which allowed the warrantless use of a pen register, a device that records the numbers a phone dials. Whether Riley or Smith applies could depend on how much mobile phone data the leak investigators seek. If they only seek the numbers that the law clerks’ called, then Smith’s permissive rule governs.

But perhaps the investigators want more information, including incoming as well as outgoing calls and text messages. That would make the case more like Riley, both as a legal matter and in terms of the impact on the law clerks. Even if less intrusive than requiring law clerks to unlock and turn over their entire phones, requiring call and text records is still extraordinarily intrusive. Investigators could learn that a clerk talked to a psychotherapist, exchanged texts revealing their hitherto-private sexual orientation, or communicated with family members about their financial, medical, or other private challenges. Where the government has probable cause to believe that it will find evidence of crime, such interests in privacy may be overridden, but a less than 3 percent likelihood of detecting a non-criminal breach of a workplace norm falls far short of that standard.

Does the fact that the government acts here in the role of employer rather than sovereign make a difference? Yes and no. In National Treasury Employees Union v. Von Raab, decided in 1989, the Supreme Court held that the Fourth Amendment applies to drug tests of government employees. However, the employment rather than law enforcement context meant that the government employer needed to satisfy only a standard of reasonableness; warrants based on probable cause were not required. The Court further held that it was reasonable to subject employees seeking promotion to positions involving drug interdiction or the carrying of firearms to routine drug testing; the Court also said, however, that it would not be reasonable to subject every government employee to such drug testing.

Accordingly, one might think that requiring law clerks to turn over cell phone records need only be subject to a reasonableness standard. To be sure, the individualized nature of the inquiry—seeking information about a particular leak—might make the warrant/probable-cause regime more applicable (under Riley, albeit not under Smith), but even if judged only by a standard of reasonableness, the intrusive nature of the mobile-phone-data search and the low probability that any particular set of data will produce evidence of leaking suggest that the requirement to turn over the records is unreasonable.

Now perhaps none of the foregoing legal analysis applies for a different reason. Ms. Biskupic’s reporting leaves open the possibility that the Court investigators have only requested, rather than required, law clerks to divulge mobile phone records. Yet given the fact that law clerks are essentially employees at will—serving at the pleasure of the Justices who hired them—that distinction seems highly formalistic. A law clerk who does not comply with the request risks grave suspicion and even dismissal.

* * *

I have analyzed the request for law clerks’ mobile phone records in accordance with the Supreme Court’s own precedents. As the discussion above reveals, exactly how the legal arguments would play out is somewhat uncertain. But in a sense, that is all beside the point.

Even if legal, the investigation reeks of hypocrisy in two respects. First, it violates the spirit (and perhaps even the letter) of the Court’s Fourth Amendment cases. Second, in focusing on law clerks but not Justices, it amounts to self-dealing. If the Court’s investigators really want and need mobile phone data, they should also seek it from others who might have had access, starting with the Justices and their spouses.

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