Law clerks for the U.S. Supreme Court are reportedly preparing to lawyer up as the hunt intensifies for the leaker who gave to the press a draft majority opinion that would overturn Roe v. Wade.
Three unnamed sources who spoke to CNN Tuesday claimed that investigators are taking steps to require that clerks turn over their private cellphone records and sign affidavits in an unprecedented development.
In response, some clerks are reportedly considering whether to hire legal counsel. Doing so would not be unusual, legal experts told CNN.
"That's what similarly situated individuals would do in virtually any other government investigation," said an appellate lawyer with experience in government investigations. "It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection."
Politico stirred nationwide controversy earlier this month when it published a draft majority opinion authored by Justice Samuel Alito for the Dobbs v. Jackson Women's Health Organization case concerning Mississippi's 15-week abortion ban. Alito's opinion upheld Mississippi's law, holding that Roe was wrongly decided, there is no constitutional right to an abortion, and states should be permitted to enact abortion laws according to the will of the people, as expressed through their elected representatives.
The report caused a political firestorm, with pro-abortion-rights groups becoming apoplectic and demanding immediate federal legislation to codify Roe v. Wade, which Democrats attempted to pass but could not get through the Senate filibuster. Left-wing protesters gathered outside the private residences of Republican-appointed justices, possibly illegally, demanding that they leave Roe intact.
Pro-lifers and Republicans largely welcomed the ruling, but many expressed concerns that Supreme Court norms had been grossly violated by the leak and that the institution of the court may have been irreparably damaged by it.
Chief Justice John Roberts said the leak was a "betrayal" and on May 3 ordered the marshal of the Supreme Court to find its source. According to CNN, Roberts met with all the court's law clerks as a group shortly after Politico's report, but whether they have been individually interviewed is unknown.
Supreme Court justices typically hire four law clerks each year. These young lawyers tend to be top graduates from prestigious law schools, the best of the best. Although many people have speculated that one or more of the clerks leaked Alito's draft to Politico, CNN reports that as many as 75 court staffers could have had access to the document.
An official court ruling on Dobbs has yet to be released and is expected sometime in June or early July.
Other members of the court have expressed dismay at the breach of trust the leak represents.
Justice Clarence Thomas likened it to "a kind of infidelity."
“Look where we are, where that trust or belief is gone forever,” Thomas said two weeks ago at a conference. "And 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.”