Supreme Court reportedly cracking down on clerks' cell phones as leak investigation continues

Several clerks are reportedly considering retaining legal counsel in response to the move

By Jon Skolnik

Staff Writer

Published May 31, 2022 12:30PM (EDT)

Supreme Court law clerks have been asked to hand over their cell phones as part of the court's escalating probe into an unprecedented leak of a draft majority opinion on abortion.

According to CNN, clerks are so "alarmed" by the requirement that they are now considering seeking outside counsel in the far-reaching investigation. "That's what similarly situated individuals would do in virtually any other government investigation," one appellate lawyer who is familiar with the probe told CNN. "It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection."

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On top of providing cell phone records, clerks might also be asked to sign affidavits. 

However, the scope of the cell phone search as well as language in the affidavits remains unclear.

The probe comes weeks after a bombshell Politico report revealing that the Supreme Court has informally voted to strike down Roe v. Wade, the landmark 1973 decision establishing America's constitutional right to abortion. Chief Justice John Roberts has called the leak of Justice Samuel Alito's draft majority opinion in the case of Dobbs v. Jackson Women's Health Organization "absolutely appalling."

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"To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed," Roberts said earlier this month. "The work of the court will not be affected in any way."

Roberts, who launched the probe, reportedly convened a meeting with a group of Clerks following the Politico report, according to CNN. The probe is currently being led by Col. Gail Curley, the marshal of the U.S. Supreme Court. 

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The number of people who had access to the draft opinion is not clear. Traditionally, draft majority opinions are circulated to all nine justices, their clerks, and some of their support staff, as CNN noted. It is not clear whether the probe extends just to law clarks. The documents may have been sent to as many as 75 individuals. 

The Supreme Court is known to implement tight security procedures when it comes to sharing official documents. Still, as CNN reported, it's possible that hard copies of the Roe opinion left the building if staff opted to take their work home.

By Jon Skolnik

Jon Skolnik is a staff writer at Salon. His work has appeared in Current Affairs, The Baffler, and The New York Daily News.

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