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A clerk? A justice? Answers scarce on who leaked draft Supreme Court abortion opinion

USA TODAY logo USA TODAY 5/31/2022 John Fritze and Bart Jansen, USA TODAY
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WASHINGTON – Few details have emerged about a Supreme Court investigation into the leak of a draft opinion in a major abortion case – though there have been plenty of signs of discord within the court since the document's disclosure nearly a month ago.

The draft opinion by Associate Justice Samuel Alito, first obtained by Politico and later confirmed by the court, set off a flurry of speculation about the identity and motivation of whoever exposed the document as the court launched a probe into the unprecedented breach.

Court officials have remained tight-lipped about the scope of the investigation, which is being handled by the Supreme Court marshal, declining to answer questions from USA TODAY about whether outside entities have been brought in to help or the status of the probe. But there are indications of repercussions from the leak.

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Law clerks at the court have been asked to provide cell phone records and sign affidavits, CNN reported Tuesday, and some are considering hiring attorneys of their own. The crackdown and focus on cell phones had echoes of efforts to shut down leaks within former President Donald Trump's notoriously fractionalized White House.       

The justices themselves, meanwhile, have been unusually chatty about the leak's impact.

"When you lose that trust, especially in the institution that I'm in, it changes the institution fundamentally. You begin to look over your shoulder," Associate Justice Clarence Thomas said at an event in Dallas this month. "It's like kind of an infidelity – that you can explain it but you can't undo it."

Questioned by the audience at a George Mason University event this month about how the justices are getting along, Alito dispensed with the usual boilerplate about how the nine members of the court are personally close even when conflict bursts into the open.

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"The court right now, we had our conference this morning, we’re doing our work," Alito said, according to The Washington Post. "We’re taking new cases, we’re headed toward the end of the term, which is always a frenetic time as we get our opinions out.”

No opinion will be as closely watched this year as the one in Mississippi's challenge to Roe v. Wade, the 1973 opinion that established a constitutional right to abortion. The leaked draft, along with information Politico attributed to a "person familiar with the court’s deliberations," suggested a majority of the court supported overturning Roe.   

Protective fencing remains up around the Supreme Court building in anticipation of protests on May 24, 2022. © Chip Somodevilla, Getty Images Protective fencing remains up around the Supreme Court building in anticipation of protests on May 24, 2022.

That prompted protests across the country, including at the justices' homes; anxious applause among anti-abortion groups and lawmakers who have sought to unwind Roe for decades; and a furious spinning of theories about the leaker that quickly took on political overtones

Could it have been a clerk, one of the 20-something law school graduates that put in punishing hours helping to research and craft opinions? Maybe it was a justice, a member of the court's liberal wing trying to scuttle the outcome or a conservative hoping to galvanize support for Alito's position. 

Theories abound. Answers are more elusive.

In the days following the disclosure of the opinion, Politico followed up with another detail from the court's process: No other opinions had circulated, which may suggest negotiations over the Alito draft were at an early stage. This week, citing "multiple people familiar with the proceedings," Politico reported the investigation is "fully in progress."

A Supreme Court spokeswoman did not respond to questions about the status of the investigation.

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In a statement a day after the leak, the Supreme Court said Gail Curley, the high court's marshal, would handle the investigation. Curley's office supervises about 260 employees with a wide range of responsibilities, including building security, maintaining order in the courtroom, overseeing contracts and some human resources functions.

Although the office manages the Supreme Court police, many of its responsibilities are more administrative. The fact that Chief Justice John Roberts assigned the probe to Curley instead of to some other court official, such as the counselor to the chief justice – essentially his chief of staff – is telling, experts said.    

"It's notable that the chief assigned this to somebody who is an institutional officer of the court," Sean Marotta, a veteran appellate attorney who follows the Supreme Court, told USA TODAY earlier this month. "He sort of took it away from his personal office, so to speak, and put it more just in the institutional area of the court." 

Curley's most public role was supposed to be in the nation's highest courtroom, where the marshal bangs a gavel and announces the entrance of the justices. Her brief script includes "Oyez! Oyez! Oyez!" – meaning "hear ye" – and concludes, "God save the United States and this Honorable Court."

People who know Curley, 53, told the Associated Press that the former Army colonel and military lawyer possessed the right temperament for a highly charged leak investigation: smart, private, apolitical and unlikely to be intimidated. Though experts say the investigation appears to be unprecedented and it's not clear if the marshal's office has the resources or expertise to run a fully independent search for the leaker.

Because the probe was assigned to the marshal, it's being handled as an internal matter, said John Q. Barrett, a law professor at St. John's University in New York.

"That's different and not as aggressive as bringing in an outside, experienced investigator or team with law enforcement skills in general and in particular in the context of investigating a leak," Barrett said.

It's not likely that such a leak is illegal, experts said, but it would probably be a career-ending move for a clerk, making it impossible to pursue opportunities in the top tiers of the legal profession. 

Renato Mariotti, a former federal prosecutor, said bringing in the Justice Department to help with the investigation would raise separation of power issues – the kind of outside involvement Roberts has long been keen to avoid. It could subject the justices themselves to a level of scrutiny they might find unwelcome. 

“I would seek and obtain email accounts and review private email,” Mariotti said. “It’s not clear to me that the chief justice of the Supreme Court wants an investigator – whether the marshal or someone else – seizing the cellphones of justices and families and associates, going through their private emails and so forth.”

Investigators of the leak are heading into uncharted waters, some experts said.

"I'm 100% certain that they haven’t investigated anything like this before," said Paul Rosenzweig, a former senior counsel with Ken Starr’s independent counsel investigation of President Bill Clinton and the founder of Red Branch Consulting. 

Alito's draft opinion was a full-throated repudiation of Roe, an approach that – if embraced by the court – would not only overturn a landmark precedent but amount to a change in the way Americans have understood reproductive rights for the past five decades. If the idea was to raise the alarm, a leak from the left might make sense. 

A counter-theory is that a conservative might have leaked the draft in an effort to hold together a majority. A wavering justice might be less willing to switch sides in the case if there is a perception of doing so because of the fallout from the disclosure. 

"In terms of who leaked it and why, it seems much more likely to me that it comes from the right in response to an actual or threatened defection by one of the five who voted to overturn Roe," Kermit Roosevelt, a professor at the University of Pennsylvania Carey Law School told USA TODAY earlier this month. "Leaking this early draft makes that more costly for a defector because now people will think that they changed their vote after the leak."

Justices can and do switch sides after seeing draft opinions. Dissents can become majority opinions. There was wide speculation that the court's liberals joined a major decision last year curbing LGBTQ rights to head off a much more far-reaching opinion that would have represented a major win for religious groups. 

The justices themselves would know if Alito seemed to be losing his majority or if the five votes needed for his opinion are solid. In other words, the justices probably have more insight into the motivation of the leaker than those speculating from the outside.  

In the cloistered world of the Supreme Court, heavy on tradition and slow to embrace technology, there should in theory be a relatively small number of people who would have access to a draft opinion – namely the justices and their clerks.  

Complicating all of the theories was a lack of clarity about the opinion leaker's motives.  

"I just don’t see someone leaking early an opinion that many people believed was a strong possibility anyhow," Joyce Vance, former U.S. attorney for the Northern District of Alabama, said on the CAFE Insider podcast this month. "I don’t see how anyone could think that that would move the needle at all."

Contributing: Associated Press

This article originally appeared on USA TODAY: A clerk? A justice? Answers scarce on who leaked draft Supreme Court abortion opinion

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