September 27, 2022

Justices will meet for first time since leak of draft opinion on Roe shook the foundations of the court

6 min read


“Everything depends,” said a source familiar with the court Internal Working said how many powers Chief Justice gives to Marshall.

An insular entity – which prides itself on its independence – should now go through a difficult time to finish its work, while also trying to prevent leakage. If the court sticks to its current calendar, all other cases – including abortion – must be decided by early July, which is an important, self-imposed deadline. Under normal circumstances, The majority opinion on the final draft is usually circulated internally by June 1, so that dissenters have plenty of time to respond.

Judges will be alone when they sit in their decorative conference room on Thursdays, according to seniority – or if they attend by phone if they are out of town. No clerks, no staff – only nine will participate. They may discuss further steps in the investigation.

Sources familiar with the court say that unless the leaker leaves clear marks, such an inquiry could be a critical enterprise, raising complex questions about the extent to which Curley can detect it. The work of each chamber

If Marshall’s mandate includes an aggressive look at each chamber’s electronic communications at a time when judges are still worried about leaks and are concerned about the confidentiality of their internal deliberations, May do more to increase stress. The work can be difficult.

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According to one of the familiar sources With the court, It would be one thing for Curley to direct a computer forensic test to find out how the draft opinion was distributed. This can be done at home, as the court has a strong IT department. Interviewing court staff outside designated chambers will also be feasible. After all, there are people in the building who work in construction assistance, the staff of the cafeteria, the architects of the capital, the nurses – all employees who do not have access to the drafting process.

If Laker’s identity can be determined by these methods, it will be a straightforward investigation.

But that’s another thing – the source said – to go to each chamber and get permission to search the computer drives of judges, their clerks and administrative assistants.

Another source – who does not work in court but is close to the judges – noted that investigators would need the judges’ consent to review communications in the chambers, and this could lead to questions.

“If you are going to do justice in court, how do you feel about Marshall – at the behest of the Chief Justice – getting all your electronic data?” The source asked.

A difficult investigation is unfolding.

Judges are housed in the same building, but they run their chambers like nine separate legal entities, and there are occasional tensions between different staff, despite efforts for civility and collectivity on the bench. In addition, law clerks are unlikely to sit down with a federal official for possible interviews without first consulting a lawyer, a process that could delay an inquiry.

The source also questioned whether Curley and the Supreme Court police under his control would find it easier to interview the judges themselves if the investigation reaches this level, suggesting that the court hire an external law firm, contractor or lawyer. May consider using it as some kind of special prosecutor. One last resort, sources said, would be to deploy investigators from other branches of the government, such as the US Martial Services Department. However, the court is unlikely to go that route, as it takes concerns of separation of powers seriously.

Two sources said that until the identity of the leaker is known, Marshall’s inquiry could be stopped – raising the question of whether the final outcome of the investigation should be to ensure that the leaker is found. Instead, no more such leaks.

According to a former clerk, judges and their clerks have the ability to access two separate computer systems. The two require an employee to connect securely, but the system used to draft feedback is an intranet service that does not allow access to the Internet or external emails. The work done on this system cannot be easily transferred.

Former Clerk He said he was unaware of any hidden watermarks used on the draft. Most chambers have three to four clerks and three administrative assistants. Systems are designed to work at home on laptops or iPads, but not on iPhones. Each chamber has more than one printer, but sometimes chambers share copying machines. More than a decade ago, clerks were not allowed to take laptops home, and there was only one free standing computer in each chamber that could access the Internet.

To further complicate matters, there is an important mark in the upper corner of the document under discussion, which suggests that it was copied from an existing document and may not show electronic fingerprints. In addition, according to sources and Former Clerk, a draft can be distributed either manually or by computer. Some judges still follow the protocol that precedes e-mail.

The case would be less difficult if the draft opinion contained electronic fingerprints that could be read by the IT department. But the source acknowledged that if the invasive discovery in the chambers became necessary, it would become more complicated.

Violation of trust and tradition

Two former clerks said clerks receive a handbook, and are briefed on security issues before starting their term.

In addition, judges have their own rules. Utah Republican Senator Mike Lee, who worked as a clerk for Justice Samuel Elliott, appeared on Fox last week and said the draft opinion was “not often printed.” He said that when a clerk runs out of printed copies of a draft opinion, “they don’t just throw it in the trash, they put it in a burning bag.”

“They take the burn bag and cut it into two, vertical, horizontal pieces – making confetti,” he said.

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Another source added that the brown-striped brown bag with red stripes could be immediately placed in the chambers in a cross-cut shredder or in boxes cut in the basement. About once a month, an outside shopkeeper takes the paperwork in these boxes by truck so that the paperwork can be further sorted and disposed of.

Ian Samuel, a clerk to the late Justice Antonin Scalia in 2012-2013, told a blog called High School Scots in 2018 about how Scalia dealt with security issues.

“Justice Scalia probably won’t lose anything from the first day the four law clerks started,” Samuel said.

According to Samuel, Scalia said, “Welcome to the ship. I’m really glad to find you. Here’s how I run the chambers. It’s an open door – if you want to talk to me about something.” So just come and talk to me. ”

But, Samuel said, Scalia insisted on something else.

“If I ever find out that you have betrayed the trust of what happens in these chambers, I will do everything in my power to ruin your career,” according to Samuel Scalia. Said

Samuel added, “Then he let her stay there for just a second, and then moved on to other subjects.”

Although there have always been leaks from the courts, the draft has set a new precedent.

“It’s an institution that’s opening up before our eyes,” said a former clerk, shocked by the leak. “There have been leaks before, but this is a faucet.”

The leak also raises questions about the safety of the judges themselves.

Over the weekend, protesters demonstrated outside the homes of Roberts, Elliott and Justice Brett Kiwana. The court wasted no time in erecting barricades around the building last week, and Alito – who wrote the draft brief – canceled the appearance before the 5th U.S. Circuit Court of Appeals, instead sending a short video. He apologized for not attending in person, saying personal attendance was “impractical”, according to a lawyer present. In recent years, security around judges has been strengthened and Supreme Court police officers have played a stronger role.



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