Frustrations appear to be mounting at the Supreme Court four weeks after Politico published a leaked draft opinion by Justice Samuel Alito that would overturn Roe v. Wade. As reported by CNN’s Joan Biskupic, court officials are moving to “require law clerks to provide cell phone records and sign affidavits,” an alarming development that has prompted some clerks to consider lawyering up, says Washington Post media columnist Erik Wemple. Chief Justice John Roberts announced that investigation, directed by Supreme Court Marshal Gail Curley, one day after the Alito draft hit the Internet. Cellphones don’t observe boundaries, harboring data and information from people’s personal and professional lives. The invasiveness of the court’s digital pat-down, is unclear. it’s no wonder that the clerks — each justice has a contingent of four — are “freaking out,” said CNN's Jeffrey Toobin.
The Supreme Court leak investigation doesn’t carry the consequences of the national security leaks that have made headlines over the years. At the court, the leaker may lose his or her job and perhaps be subjected to blackballing in the legal community or, depending on ideological circumstance, hailed as a hero. There’s nothing classified about a Supreme Court draft document; it contains arguments, not revelations about confidential intel sources. “If all they did was print it out and give it to Politico, there is no crime that is committed,” says Mark Zaid, a lawyer representing clients in government leak cases. The court's investigative steps apply to clerks. What about the justices themselves and administrative staff who may have had access to the material? “To be fair, they should ask all the justices for their personal cellphones,” says Zaid, who says that if he were a Supreme Court clerk, he would be talking to fellow clerks about “why none of us should turn over our personal cellphone data to the government.” He adds, “Presumably, whoever did it — other than it being an accident or a very serious inadvertent mistake — one presumes it was motivated by very strong ideologies on either side ...if that’s the case, there’s nothing that’s going to stop that from happening again in the highly partisan, polarized environment that we’re in.”