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Draft leak a ‘shocking change’ for typically airtight Supreme Court

Chief Justice John G. Roberts Jr. insisted the work of the court will not be affected, but senators and former clerks aren't so sure

Sens. Ted Cruz, R-Texas, right, and Josh Hawley, R-Mo., both outspoken about the leak of a Supreme Court draft opinion on abortion rights, are seen outside the Senate chamber on Tuesday.
Sens. Ted Cruz, R-Texas, right, and Josh Hawley, R-Mo., both outspoken about the leak of a Supreme Court draft opinion on abortion rights, are seen outside the Senate chamber on Tuesday. (Tom Williams/CQ Roll Call)

The leak of a draft Supreme Court opinion on abortion rights started Washington’s greatest whodunit in decades, as the high court and official Washington scrambled Tuesday to handle an extraordinary disclosure that also centers on one of the most divisive topics in American politics.

Chief Justice John G. Roberts Jr. issued a rare statement Tuesday, to call the leak to Politico a “singular and egregious breach” of the trust of the court and announce that the Marshal of the Court would investigate.

Amid rampant speculation on social media and finger-pointing in Congress, the mystery raised questions about how the disclosure would affect the case and, in the longer term, a court that has operated with an expectation that its deliberations are kept within the walls of the insular, independent branch of the federal government.

Roberts, for his part, insisted the work of the court will not be affected in any way. “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said in a news release.

Former clerks weren’t so sure, saying it’s rare for any information about Supreme Court deliberations to leave the building, let alone a full draft opinion. Roberts stressed in his statement Tuesday that the draft was just that, and it does not represent the final opinion of the court.

Justice Samuel A. Alito Jr. authored the draft in February as a majority opinion in the challenge to Mississippi’s 15-week ban on abortion, which was directly in conflict with a 24-week threshold from the 1973 Roe v. Wade decision, which first established a constitutional right to abortion. The draft would overrule Roe and essentially leave abortion up to states.

Not business as usual

Allison Orr Larsen, who clerked for retired Justice David Souter, said in an interview that how a particular justice feels about a case has made it out into the public, but a full opinion leak is “dramatic and unprecedented.”

“It’s a real shocking change from business as usual,” Larsen said. “This is just not the kind of thing [the justices] have dealt with before.”

The Supreme Court’s deliberations have been disclosed before — such as a 2004 Vanity Fair magazine article with a blow-by-blow of the decision-making behind the 2000 Bush v. Gore opinion.

Larsen, now a professor at William & Mary Law School, said that while she worked at the court, justices stored draft opinions on dedicated computers without internet access. It was not uncommon for justices to change their mind or write new opinions while deliberating over a case, but the leak adds a new variable to the mix.

“The fact of the leak itself may affect the internal dynamics of the court, either to change the initial vote or to shore up the initial vote,” Larsen said.

Matthew Tokson, a professor at the University of Utah School of Law, said in an interview that the leak could have long-term impacts on how the justices exchange ideas.

Tokson, who clerked for Souter and Justice Ruth Bader Ginsburg, said the court operates with a “high base of trust” between the justices currently; however, they may now think twice about circulating opinions among each other.

“I think that does hurt the court institutionally. It reduces trust and reduces the integrity of the court,” Tokson said. “In order to do the job of writing the majority opinion you are going to have to circulate that opinion among other justices to get feedback, to get dissenting or concurring opinions. It is going to be seen by clerks, it is going to be seen by staff.”

Working conditions

Sen. Lindsey Graham, R-S.C., and others at a previously scheduled Senate Judiciary Committee hearing on Supreme Court ethics Tuesday also speculated about the effects the leak would have on how the justices work.

“It is going to be hard in the future [for justices] to trust each other to form consensus to share ideas, then to build consensus and to get votes for a particular position,” Graham said.

The leak dominated Tuesday’s hearing, where Democrats largely condemned the leak and turned the conversation to the impact the draft opinion could have on abortion rights in the country. The identity of the leaker and reason for the leak is not yet publicly known.

Some Republicans called for an intense investigation and cast the leak as an effort to influence the court’s ultimate decision in the Mississippi case. During Tuesday’s hearing, Sen. Josh Hawley, R-Mo., attributed the leak to Democrats who have put pressure on the court because it has not ruled in their favor.

Separately, Hawley tweeted he wanted his Democratic colleagues asked about the leak, and he called for the impeachment of any justice who was a source of the leak.

“This is a radical escalation, a radical breach of the court’s confidentiality, a radical breach of the court’s procedures, something that really strikes at the independence of the court itself,” Hawley said.

Sen. John Kennedy, R-La., called for an FBI investigation and pointed out that only a small number of people — the justices, their law clerks and some court staff — would have had access to the draft.

“We are about to find out what the United States Department of Justice is made of, because it can find this leaker, if it wants to,” Kennedy said.

Others advocated a less intense approach. Graham condemned the leak but said the Supreme Court, as an independent branch of government, should have a chance.

“There’s some effort by folks to basically reach out and take over the investigation. Let’s let it happen in-house and we’ll see what [Justice Roberts] finds, and as a nation we’ll figure out what to do,” Graham said.

At the same time, Sen. Sheldon Whitehouse, D-R.I., said it’s not clear yet what law, if any, the leaker might have broken.

Clerking suspicion

During Tuesday’s hearing, Kedric Payne, general counsel for the Campaign Legal Center, pointed out that because the Supreme Court has different ethical standards than other courts, it is uncertain what standards a law clerk on the court would face if they were the source.

Tokson said that if the leak came from one of the justice’s law clerks, that would represent a sharp break from the court’s practice.

Clerkships are “launching pads for successful legal careers,” Tokson said. “Typically, the folks who get these positions would not want to jeopardize their careers by breaching the norms of the court.”

Tokson said there may be a “process” crime involved — for instance, either in how the leaker obtained the document or in a subsequent investigation — but most courts have not held that the disclosure of unclassified information by itself would violate the law.

“It is somewhat legally unresolved whether you could prosecute someone for leaking nonclassified information,” Tokson said.

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