Inside court inquiry: Seized phones, affidavits and distrust
Last spring and summer, employees of the Supreme Court were drawn into an investigation that turned into an uncomfortable awakening.
As the court marshal’s office looked into who had leaked the draft opinion of the decision overturning the constitutional right to abortion, law clerks scrambled for legal advice and navigated quandaries including whether to surrender their personal cellphones to investigators.
The “court family” soon realized that its sloppy security might make it impossible to ever identify the culprit: 82 people, in addition to the justices, had access to the draft opinion. “Burn bags” holding sensitive documents headed for destruction sat around for days. Internal doors swung open with numerical codes that were shared widely and went unchanged for months.
Some employees found themselves questioning the integrity of the institution they had pledged to serve, according to interviews with almost two dozen current and former employees, former law clerks, advisers to last year’s clerkship class and others close to them, who provided details about the investigation.
As staff members were grilled, some grew concerned about the fairness of the inquiry, worried that the nine most powerful people at the court were not being questioned rigorously like everyone else.
The investigation was an attempt by Chief Justice John Roberts to right the institution and its image after a grievous breach and slide in public trust. Instead, it may have lowered confidence inside the court and out.
On Thursday, the court issued a 20-page report disclosing that the marshal’s months-long search for the leaker had been fruitless, and detailing embarrassing gaps in internal policies and security. While noting that 97 workers were formally interviewed, the report did not say whether the justices or their spouses had been.
Public reaction was scathing: “Not even a sentence explaining why they were or weren’t questioned,” tweeted Sean Davis, co-founder of The Federalist, a conservative magazine.
A day later, the court was forced to issue a second statement saying that the marshal had conferred with the justices, but on very different terms from others. Lower-level employees were formally interrogated, recorded, pressed to sign affidavits denying any involvement and warned that they could lose their jobs if they failed to answer questions fully, according to interviews and the report.
In contrast, conversations with the justices had been a two-way “iterative process” in which they asked as well as answered questions, the marshal, Gail Curley, wrote.
Instead of putting the matter to rest, Friday’s statement heightened concerns about a double standard for justices.
“They weren’t subjected to the same level of scrutiny,” said one court worker, speaking on the condition of anonymity because of the court’s confidentiality rules. “It’s hard to imagine any of them suffering meaningful consequences even if they were implicated in the leak.”
Some employees said the leak and investigation further tainted the atmosphere inside a court that had already grown tense with disagreement. The leak spurred finger pointing, they said, with many conservatives convinced that a liberal had engineered the breach and vice versa. Just as the justices have grown more divided, so has their staff, eroding trust.
Staff probed
In December 2021, after an early vote by the justices, word of the decision in Dobbs v. Jackson Women’s Health Organization began to circulate in the court. The new conservative supermajority was about to overturn Roe v. Wade. Wrenching for some on the staff and welcome for others, the outcome would have to be closely guarded by the court for six months.
In February, the draft opinion was emailed to a list of 70 clerks and employees. It eventually was seen by a dozen more, the report said. Some employees discussed the results with confidants in the building, and a few later admitted they told their spouses, according to the report.
But the publication of the full draft opinion May 2 in Politico was a shock felt almost physically at the court: Protesters roared outside the building, so loud they could be heard from some bathrooms. Over the years, information had occasionally dribbled out about pending decisions. But the court’s opinion was not yet final, and the leak seemed calculated to interfere with deliberations.
The chief had assigned the investigation to Curley, the marshal. She was a respected former Army lawyer, but her division had little of the investigative muscle of other government agencies, no subpoena power and a staff only partly devoted to security.
But Roberts was a staunch defender of the court’s independence, reluctant to let outsiders interfere. “The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government,” he wrote months before.
As interviews of clerks began, a dilemma emerged. No one wanted to seem uncooperative. The court’s written code of conduct states that the justices “expect and require complete loyalty from their own law clerks and the clerks of all other Justices.” Rifts between a clerk and his or her justice could have immediate and lasting implications, according to interviews with those who have held the one-year positions as well as advisers to last year’s class.
The advantages accrued in one year at the court can compound for decades. For those who move on to law firms, the signing bonuses can be as high as $450,000, according to several lawyers at firms that recruit and hire them. A justice’s endorsement can be decisive for a federal judgeship or a law professor post. Many clerks join appellate practices, where they spend the rest of their careers being paid handsomely to read and influence the justices’ minds.
But the marshal’s search was broad. The interview questions, and the affidavits the clerks were asked to sign, were sweeping, and lying to federal investigators was a crime. Investigators collected the clerks’ courtissued electronic devices and requested their personal ones.
Expands, deflates
In June and July, the inquiry proceeded to other workers, few of whom had the connections or potential earning power of the clerks. Some were long-serving employees who had protected the court’s secrets for years; others were just out of college.
As they sat for interviews, a stenographer and an audio technician captured every word. Some conversations were short and cursory, according to some who were questioned. Others were more detailed. A few employees were brought back for repeat interrogations, according to the report. The marshal’s office interviewed almost 100 workers in all, the report noted. Even the marshal’s aides were questioned.
In the course of the investigation, the marshal’s office and other employees realized just how lax the court’s rules and protections had been. The question of whether court material could be brought home was fuzzy. Though employees weren’t supposed to tell anyone about the justices’ decisions, some told their spouses. The Supreme Court is a porous and somewhat antiquated organization, lacking the armor of other government bodies that handle sensitive information.
In interviews, employees raised questions about whether the justices themselves have contributed to a decline in trust inside and outside the court.
Periodically, employees receive a stern memo reminding them that they may not participate in partisan political activities. So some bristled when four justices attended a 40th anniversary dinner for the Federalist Society, an influential conservative group that focuses on the judiciary, in November.
Last spring, Justice Clarence Thomas declined to recuse himself from cases involving attempts to overthrow the 2020 election, even though his wife was involved in those efforts. Months later, a former leader of the antiabortion movement wrote to the chief justice to report an alleged earlier breach, of a 2014 contraception decision, that he said stemmed from a donor’s meal with Justice Samuel Alito and his wife.
In recent months, new clerks have taken their places in the chambers. Security is tightening. Further protocol changes are promised. And with the release of the report, a growing recognition has taken hold: The best chance of understanding who leaked the decision and what that person was trying to achieve, is fading away.