The recent leak of a draft opinion by U.S. Supreme Court Justice Samuel Alito that apparently would overrule Roe v. Wade is a game changer for the Supreme Court’s deliberative processes. Until now, justices have deliberated and exchanged draft opinions in private.
We have no idea if five justices ever committed to Alito’s opinion overruling Roe, and even if they did commit to it tentatively, they have the right, in private, to change their minds until a final decision is released.
Chief Justice John Roberts was quick to push back on any attempt to give the draft Alito opinion momentum, stating in his own press release that it did not reflect the final opinion in Dobbs vs. Jackson Women’s Health Organization of any of the justices. Still, it is possible that some of the wavering justices may be afraid to back away from language the public now thinks they agreed with, even if they did not.
Was the leak a breach of ethics? Yes.
Law clerks are not technically in a lawyer-client relationship with justices, but the duty of confidentiality is much the same. The code of ethics for U.S. Supreme Court clerks makes this point crystal clear.
Although the Supreme Court does not have an ethics code for the justices themselves—they desperately need one—the justices also have a relationship of confidence with each other. A justice who discloses what a colleague said or wrote about a case breaches that duty. That breach can be harmful even long after a case is decided, but is even more harmful if it occurs while the case is being decided.
Privacy Is Essential
Privacy is an essential feature of adjudicative deliberation, and it is virtually unheard of for courts to deliberate except with strict confidence.
When Brown v. Board of Education was argued for the first time in 1952, the Supreme Court was divided. By the time of the second argument, Chief Justice Fred M. Vinson had died and been replaced by Chief Justice Earl Warren, who persuaded the court to come to a unanimous ruling in 1954. Had the court’s deliberations been publicly disclosed, segregationists would have used knowledge of a divided court to foment even more resistance to the court’s authority.
If we lack confidence in our courts for whatever reason—conflicts of interest of justices, politicization of judicial decisions, or a court being out of touch with most of the population—we can fix those problems. Adopting a Supreme Court ethics code, adding new justices, and encouraging justices to retire are among the possibilities consistent with methods democratic societies use to reform their courts. Having justices deliberate in public or sharing their drafts with reporters, however, is virtually unheard of.
Until now, there have been very few breaches of this duty of confidentiality, and most that have occurred involved leaks of information about cases decided years earlier when someone authors a book about the court. Very rarely have internal court documents been leaked, and never has a draft Supreme Court opinion been leaked before the final opinion was published by the court.
Was a Crime Committed?
Was the leak a crime? Probably not, but only an investigation will tell for sure. Law under 8 U.S.C. § 641 provides possible criminal penalties. Section 641 makes it illegal to convert for your use, without authority, something of value of the U.S. or “any department or agency thereof.”
The pre-Trump-era Department of Justice Criminal Resource Manual stated that it was inappropriate to prosecute under Section 641 when the defendant obtained or used the property primarily for the purpose of disseminating it to the public. The Trump administration predictably omitted from the manual such language that might discourage prosecution of leakers, but the current DOJ likely would revert to eschewing prosecution of leaks to the press.
The situation might be different if the leaker was paid or used confidential court documents for personal profit, for example to promote and sell a book about the court, although even there prosecution has not occurred in the past. In this instance, Politico has expressly stated that it did not pay for the leaked opinion and there is no evidence that a third person intermediary paid for the draft.
The leaker’s motive is not clear at this point, but if the motive were primarily to inform the public, under the DOJ’s own guidelines, the department would not prosecute.
None of this changes the fact that the leak was unethical. The leaker almost certainly would be fired if a law clerk, and might be impeached if a justice (the House and Senate would decide if such a breach of confidence amounted to high crimes and misdemeanors).
The leaker also could be disbarred because of the breach of confidence. While not an attorney-client confidence within the meaning of ABA rules, it would be deemed by most bar disciplinary committees to be at least as serious. Unauthorized disclosure of draft judicial opinions also is conduct by a lawyer that is prejudicial to the administration of justice.
There are a few ways the leak could become criminal—if whoever did it or knows about it lies about it, or if the person that leaked it obtained the draft by unauthorized access to a computer.
The Computer Fraud and Abuse Act makes it illegal to access the computer files of another.
Meanwhile, 18 U.S.C. 1001 makes it a criminal offense to provide false information to any federal officer, and this certainly includes the Supreme Court marshals who, with orders from Roberts, will soon be circulating through justices’ chambers investigating the source of the leak.
Persons expecting to continue employment with the court likely have no choice but to cooperative with the investigation. If in coming days any law clerks (or justices) resign rather than talk with the marshals, we might have a better idea what happened.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Richard W. Painter is the S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School and was the chief White House ethics lawyer for President George W. Bush.