The Supreme Court is due to meet behind closed doors on Thursday for the first time since the stunning leak of a draft opinion that would overturn Roe v. Wade.
The justices plan to discuss pending motions and pending cases – but they are also likely to face the consequences of this remarkable breach of confidential court operations. While the draft notice calling for the reversal of a nearly 50-year-old historic precedent stunned the country, the leak itself stunned the court.
Chief Justice John Roberts quickly ordered the court marshal – Col. Gail A. Curley – to open an internal investigation, but sources familiar with the workings of the court say the probe could lead to uncomfortable confidentiality issues, sparking new tensions and eroding trust as judges work hard to resolve cases involving some of the most important social issues of the day regarding abortion, gun rights, religious freedom and the ‘environment. Curley is the head of court security and manages the Supreme Court Police.
“It all depends”, a source close to the court the cogs said, “about the degree of authority the chief justice gives to the marshal.”
An island institution – which prides itself on its independence – must now move forward at a difficult time to complete its work, while also trying to plug a leak. If the court sticks to its current schedule, all remaining cases — including the abortion — are expected to be decided by early July, a heady, self-imposed deadline. Under normal circumstances, the final draft majority opinions are usually released internally by June 1, to give dissenters ample time to respond.
When they meet in their ornate conference room on Thursday, seated in order of seniority — or participating by phone if they’re out of town — the judges will be on their own. No clerks, no staff – only nine will participate. They can discuss the next steps in the investigation.
Sources close to the court say that unless the backer has left obvious traces, such an investigation could be a tricky business, raising complicated questions about how far Curley can delve into the matter. functioning of each chamber.
If the marshal’s mandate includes an invasive review of each chamber’s electronic communications at a time when judges are still reeling from the leak and worried about the confidentiality of their internal deliberations, the probe could serve more to escalate tensions. only to calm the nerves and his task could prove to be arduous.
According to one of the sources close to the court, it would be one thing for Curley to direct computer forensic tests to trace how the draft notice was distributed. This could be done internally, as the court has a strong IT department. It would also be possible to interview court staff outside specific chambers. There are, after all, people in the building who work to support the building, cafeteria staff, the Capitol’s architect, nurses – all employees who, in theory, would not have access in the review process.
If the identity of the funder could be determined by these methods, it would be a simple investigation.
But it’s quite another thing – said this source – to pry into every chamber, to get permission to search the computer drives of judges, their clerks and administrative assistants.
Another source – who does not work in the court but is close to some judges – noted that investigators would need the judges’ consent to review the communications in chambers, which could raise questions.
“If you’re a judge in court, how do you feel about the marshal – under the direction of the chief justice – getting all your electronic data?” asked the source.
The judges are housed in one building, but they run their chambers like nine separate law firms and there are sometimes tensions between the different staffs, despite efforts to seek civility and collegiality on the bench. Additionally, lawyers are unlikely to show up for potential interviews with a federal official without first hiring attorneys, a process that could delay the investigation.
The source also asked if Curley and the Supreme Court police under his control would feel comfortable questioning the justices themselves if the investigation reached that level, suggesting the court might consider bringing in a law firm, contractor or outside attorney to serve as special counsel. A last resort, the source said, would be to deputize investigators from other branches of government, such as the US Marshals Service under the Department of Justice. However, the court is unlikely to go down this route, as it takes separation of powers concerns seriously.
Two sources said that unless the identity of the leaker is obvious, the marshal’s investigation could be blocked – raising the question of whether the ultimate end of the investigation would be to ensure another leak of this type does not happen again, rather than finding the donor.
According to a former clerk, judges and their clerks have the ability to access two separate computer systems. Both require an employee to log in securely, but the system used to write reviews is an intranet service that does not allow access to the internet or external email. Work done on this system cannot easily be transferred.
The former clerk stated that he was not aware of any hidden watermarks used on the draft reviews. Most chambers have three to four clerks and three administrative aides. The systems are configured to work on laptops or iPads at home, but not iPhones. Each room has more than one printer, but sometimes the rooms share photocopiers. More than a decade ago, clerks weren’t allowed to take laptops home, and each room had only one standalone computer that could access the internet.
To complicate matters further, the document in question has a staple mark in an upper corner, suggesting that it was copied from an existing document and may not have telltale electronic fingerprints. Moreover, depending on the source and former clerk, a draft can be distributed manually or by computer. Some of the judges are still following pre-email protocols.
If the draft notice has electronic fingerprints readable by the IT department, the case will be less difficult. But the source acknowledged that it becomes more complicated if an invasive discovery in the bedrooms becomes necessary.
Two former clerks said clerks were given manuals and briefed on security issues before starting their term.
In addition, the judges themselves have their own rules. Republican Senator Mike Lee of Utah, who worked for Judge Samuel Alito, appeared on Fox last week and said draft notices “don’t often get printed.” He said that when a clerk is done with the printed copies of draft notices, “They don’t just throw them in the trash – they put them in a burn bag.”
“They take the burn bag and shred it twice, vertically, horizontally – creating confetti,” he said.
Another source added that brown burn bags with red stripes can be immediately placed in a cross-cut shredder in bedrooms or put in bins to be shredded in the basement. About once a month, an outside vendor takes the papers to these bins via truck to further shred the papers and dispose of them.
Ian Samuel, clerk to the late Justice Antonin Scalia in 2012-2013, told a blog titled High School Scotus in 2018 how Scalia dealt with security issues.
“Nothing will ever beat Judge Scalia probably the first day the four clerks started,” Samuel said.
According to Samuel, Scalia said, “Welcome aboard. I’m really happy to have you. This is how I manage rooms. It’s an open door – if you need to talk to me about something, come talk to me.
But, Samuel said, Scalia focused on something else.
“If I ever find out that you’ve betrayed confidences about what’s going on in those rooms, I’ll do everything in my power to ruin your career,” Scalia said, per Samuel.
“Then he let it hang for a second and moved on to other topics,” Samuel added.
Although there have always been leaks from the court, the draft notice has set a new precedent.
“It is an institution that is collapsing before our eyes,” said a former clerk, surprised at the audacity of the leak. “There have been leaks before, but it’s a faucet.”
The leak also raises questions about the safety of the judges themselves.
Over the weekend, protesters demonstrated outside the homes of Roberts, Alito and Judge Brett Kavanaugh. The court wasted no time in erecting barriers around the perimeter of the building last week and Alito – who drafted the brief – canceled an appearance before the 5th US Circuit Court of Appeals, sending a brief video to the place. He apologized for not being present in person, saying personal presence “has become impossible”, according to a lawyer present. In recent years, security around judges has been tightened and Supreme Court police have taken on a more robust role.