Terrified law clerks at the Supreme Court are lawyering up as the investigation into the leaked draft opinion overturning Roe v. Wade fuels hostility: report

Kelsey Vlamis

BUSINESS INSIDER
Wed, June 8, 2022

ABOLISH THE SUPREME COURT

Seated from left: Samuel Alito, Clarence Thomas, John Roberts, Stephen Breyer and Sonia Sotomayor, Standing from left: Brett Kavanaugh, Elena Kagan, Neil Gorsuch and Amy Coney Barrett.Erin Schaff-Pool/Getty Images

The Supreme Court is investigating a leak of a draft opinion that would overturn Roe v. Wade.


Law clerks, afraid for their professional futures, are seeking legal advice on the probe.


The tensions add to reports of increasing hostility among the high court, including the justices.

Tensions are continuing to rise at the Supreme Court since a draft opinion that would overturn Roe v. Wade leaked last month, breaking longstanding precedent and prompting criticisms from justices.

As an investigation into the leak unfolds, the justices' law clerks are afraid and frantically consulting with lawyers, according to a report from NPR's Nina Totenberg, who has covered legal affairs and the high court for decades.

"I don't know how on earth the court is going to finish up its work this term," one source close to the court told NPR. The source said the clerks in a way act as diplomats between the justices, who at this point in the year would usually be working together to address disagreements on cases.

But, the source said, in addition to growing mistrust among the justices, the clerks are so terrified their professional lives are under threat as the leak investigation unfolds that communication between them is strained.

Chief Justice John Roberts announced an investigation into the leak after Politico published the 98-page draft opinion last month. The draft showed a majority of justices were set to overturn the landmark 1973 Roe v. Wade decision that enshrined the constitutional right to an abortion.

While the leak itself may not be an actual crime, CNN reported last week clerks have been asked to turn over their cell phone data and sign sworn affidavits, in which lying would be illegal.

Clerks are now "lawyering up" and consulting with law firms as a result, NPR reported Wednesday. The outlet added that clerks seeking legal advice also raises ethical questions, since some of the firms they are consulting have cases before the Supreme Court.

Concerns among the clerks piles on increasing animosity that has been reported amongst the justices.

Justice Sonia Sotomayor, in a dissenting opinion published Wednesday, went as far as to call out a "restless and newly constituted Court," seemingly a nod to the recent Trump-appointed justices.

Shortly after the leak Justice Clarence Thomas said it was an "unthinkable breach of trust" and suggested he'd lost trust in the court as an institution. And in an appearance following the leak, Justice Samuel Alito declined to say whether he and the other justices were still friendly enough to be able to have a meal together.