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SCOTUS Clerks Have Everything to Lose as Leak Probe Launches

May 3, 2022, 8:09 PM

One group is at the center of speculation about who’s behind the leak of an explosive draft Supreme Court opinion: the high court’s clerks.

The draft, published by Politico Monday evening, would overturn abortion rights, bulldozing decades of precedent under the court’s Roe v. Wade decision, and mark a sharp conservative turn for the bench. The leak, which has been called unprecedented in modern history, has already sparked an investigation and calls for criminal prosecution.

Although it is not known who leaked the document, the court’s clerks are likely to be considered suspects because they’re among the few people with access to draft opinions. But they also have more to lose professionally than just about anybody in the building.

“This would be career suicide,” said Carolyn Shapiro, a former clerk for Justice Stephen Breyer and a professor at the Chicago-Kent College of Law.

Supreme Court clerkships are highly competitive, and usually go to the top students from a select handful of law schools. Clerks are among the most sought-after new lawyers, commanding as much as $700,000 in salaries and bonuses when they join major firms. They often go on to prominent roles in Big Law, academia and in the judiciary.

“It’s the pinnacle of prestige,” said Dan Binstock, a recruiter for large law firms in Washington.

If a clerk winds up being behind the leak, that prestige and the opportunities that come with it are likely to go up in smoke.

“Having the experience at that level generally suggests you have many options ahead of you in the legal profession,” said Travis Lenkner, who clerked for Justice Anthony Kennedy, and noted it’s unclear if a clerk was behind the leak, “but an offense of this nature, in my view, should end your membership in that profession or prevent it from beginning.”

LISTEN: Supreme Court Leak May Start a New Era for Justices

‘Community of Servants’

The Supreme Court has long been shrouded in secrecy, with its inner workings largely outside of the public eye. It’s a key part of the court’s effort to maintain an aura of impartiality, on which new clerks are schooled early in their first terms.

“Even above legal ability, as a job requirement, would be discretion and trust,” said Lenkner, who also clerked for Justice Brett Kavanaugh while Kavanaugh was on a federal appeals court in Washington. “It is a position that every clerk takes incredibly seriously, and the justices place extreme trust in their law clerks.”

Chief Justice John Roberts on Tuesday confirmed that the draft opinion—written by Justice Samuel Alito in a case over a Mississippi abortion law—is authentic, though it did not represent a final position of any member on the case. He said the Marshal of the Court would launch an investigation into the source of the leak.

“This was a singular and egregious breach of trust that is an affront to the community of public servants who work here,” Roberts said.

Court watchers cite former Justice Antonin Scalia’s words of warning to his clerks as an example of how important confidentiality is as part of the job.

“If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career,” Scalia told clerks, Ian Samuel, a former Indiana University law school faculty member, said in a 2018 interview.

Shapiro said Chief Justice William Rehnquist spoke to her class of clerks at the beginning of the term about the need to maintain confidentiality. Clerks were instructed to put draft court opinions in “burn bags” so they could be destroyed, Shapiro said.

“Clerks have a lot of loyalty to the institution. They have concerns for their own careers, but they also have a lot of loyalty to their own justices,” Shapiro said. “And to the extent doing something like this would embarrass your own justice, that would be an enormous deterrent as well.”

Discretion and Trust

Some former clerks have suggested that a justice is more likely to have leaked the opinion, given the risk involved.

“I would not be at all surprised if it turns out the leaker was themselves a justice or was instructed or encouraged to leak by a justice,” Shapiro said.

Amy Kapczynski, a Yale Law School professor who clerked for former Justices Sandra Day O’Connor and Stephen Breyer, tweeted that she initially thought a clerk for a liberal justice leaked the document, but then reconsidered—in part, because they would be risking too much.

“The kinds of liberal students who end up at the Court are not an activist bunch,” Kapczynski wrote. “They are enormously risk averse and rule-abiding. Hard to see one of them blows their career out of the water in this way (for what benefit?).”

Senate Minority Leader Mitch McConnell called the leak “another escalation in the radical left’s ongoing campaign to bully and intimidate federal judges.” He also suggested that the leaker could face criminal charges.

But the history of punishments for Supreme Court leaks has been spotty and inconsistent, said Jonathan Peters, an associate professor of journalism at the University of Georgia who studied the brief history of leaks.

Supreme Court Clerk Larry Hammond turned himself in to Justice Lewis Powell after Time Magazine published an early account of the 1973 Roe v. Wade ruling. Hammond had shared the information “on background” with the magazine, which agreed it would wait to run the information until the opinion was printed. That deal was bungled by a delay in the court’s printing operation that day, Peters said.

Hammond offered to resign, but was rejected.

Still, Chief Justice Warren Burger created the “20-second rule,” saying any clerk caught talking to a reporter would be fired in 20 seconds.

The court has since established a formal code of conduct for clerks, Peters said.

“Fifty years ago punishment was inconsistent and spotty,” he said, “but one reason is we didn’t have all these policies in place that we do now.”

To contact the reporter on this story: Roy Strom in Chicago at rstrom@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; John Hughes at jhughes@bloombergindustry.com