Inside the Supreme Court Inquiry: Seized Phones, Affidavits and Distrust
Jodi Kantor
Sun, January 22, 2023
The U.S. Supreme Court building in Washington, on Friday, Jan. 20, 2022.
(Shuran Huang/The New York Times)
Last spring and summer, employees of the Supreme Court were drawn into an investigation that turned into an uncomfortable awakening.
As the court marshal’s office looked into who had leaked the draft opinion of the decision overturning the constitutional right to abortion, law clerks who had secured coveted perches at the top of the judiciary scrambled for legal advice and navigated quandaries including whether to surrender their personal cellphones to investigators.
The “court family” soon realized that its sloppy security might make it impossible to ever identify the culprit: 82 people, in addition to the justices, had access to the draft opinion. “Burn bags” holding sensitive documents headed for destruction sat around for days. Internal doors swung open with numerical codes that were shared widely and went unchanged for months.
Perhaps most painful, some employees found themselves questioning the integrity of the institution they had pledged to serve, according to interviews with almost two dozen current and former employees, former law clerks, advisers to last year’s clerkship class and others close to them, who provided previously undisclosed details about the investigation.
Inside the court, justices are treated with such day-to-day deference that junior aides assist them in putting on their black robes. As staff members were grilled, some grew concerned about the fairness of the inquiry, worried that the nine most powerful people at the court were not being questioned rigorously like everyone else.
The investigation was an attempt by Chief Justice John Roberts to right the institution and its image after a grievous breach and slide in public trust. Instead, it may have lowered confidence inside the court and out.
On Thursday, the court issued a 20-page report disclosing that the marshal’s monthslong search for the leaker had been fruitless, and detailing embarrassing gaps in internal policies and security. While noting that 97 workers had been formally interviewed, the report did not say whether the justices or their spouses had been.
Public reaction was scathing: “Not even a sentence explaining why they were or weren’t questioned,” tweeted Sean Davis, co-founder of The Federalist, a conservative magazine.
A day later, the court was forced to issue a second statement saying that the marshal had in fact conferred with the justices, but on very different terms from others at the institution. Lower-level employees had been formally interrogated, recorded, pressed to sign affidavits denying any involvement and warned that they could lose their jobs if they failed to answer questions fully, according to interviews and the report.
In contrast, conversations with the justices had been a two-way “iterative process” in which they asked as well as answered questions, the marshal, Gail Curley, wrote. She had seen no need for them to sign affidavits, she said.
Instead of putting the matter to rest, Friday’s statement heightened concerns about a double standard for justices.
“They weren’t subjected to the same level of scrutiny,” said one court worker on Friday, speaking on the condition of anonymity because of the court’s confidentiality rules. “It’s hard to imagine any of them suffering meaningful consequences even if they were implicated in the leak.”
Internal examinations can build or sap an organization’s authority, said Glenn Fine, a former inspector general for the Justice Department who has conducted such inquiries, and more recently, has argued that the court needs a similar figure.
“Leak investigations are a double-edged sword,” Fine said in an interview. A thorough investigation can be a deterrent, but “an investigation that doesn’t solve a leak may embolden more leakers in the future.”
Failing to fully scrutinize the justices “just completely undermines the court’s credibility,” said Mark Zaid, a lawyer who often handles government investigations. “It sends a message of superiority that does not exist under the eyes of the law.”
Besides, “justices have a long history of being the ultimate source of leaks,” Aaron Tang, a law professor and former clerk to Justice Sonia Sotomayor, wrote in an Opinion essay in The New York Times.
In interviews, some employees said the leak and investigation further tainted the atmosphere inside a court that had already grown tense with disagreement. The leak spurred finger pointing, they said, with many conservatives convinced that a liberal had engineered the breach and vice versa. Just as the justices have grown more divided, so has their staff, eroding trust. Voices are more hushed now, the employees said, and doors that used to be open are closed.
Interrogating the Staff
In December 2021, after an early vote by the justices, word of the decision in Dobbs v. Jackson Women’s Health Organization began to circulate in the court. The new conservative supermajority was about to overturn Roe v. Wade, removing a right in force for nearly a half-century. Wrenching for some on the staff and welcome for others, the outcome would have to be closely guarded by the court for six months.
In February, the draft opinion was emailed to a list of 70 clerks and employees; it eventually was seen by a dozen more, the report said. Some employees discussed the results with confidants in the building, and a few later admitted that they told their spouses, according to the report.
But the publication of the full draft opinion in Politico on May 2 was a shock felt almost physically at the court: Protesters roared outside the building, so loud they could be heard from some bathrooms. Over the years, information had occasionally dribbled out about pending decisions. But the court’s opinion was not yet final, and the leak seemed calculated to interfere with deliberations: “a grave assault on the judicial process,” as the marshal’s report would put it.
By the time the chief justice summoned the three dozen clerks for a mandatory meeting about the breach, many of the pedigreed young lawyers were worried. On the internet, accusers on the right were attacking the liberal justices’ clerks, posting names and photos and wild whodunit theories. One clerk had been quoted in a Politico article years before. Another had a master’s degree in gender studies, had written about reproductive rights and was married to a reporter. The tweets went viral, with tens of thousands of likes. (Later the court’s investigators found “nothing to substantiate” those accusations.)
The chief had assigned the investigation to Curley, the marshal, whose best-known task was crying “Oyez, oyez, oyez!” as justices entered the courtroom. She was a respected former Army lawyer, but her division had little of the investigative muscle of other government agencies, no subpoena power and a staff only partly devoted to security. Others on her team dealt with court administrative tasks such as staffing events and handling mail.
But Roberts was a staunch defender of the court’s independence, reluctant to let outsiders interfere. “The Judiciary’s power to manage its internal affairs,” he had written months before, “insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government.”
As interviews of clerks began, a dilemma emerged. No one wanted to seem uncooperative, as if they had something to hide. The court’s written code of conduct states that the justices “expect and require complete loyalty from their own law clerks and the clerks of all other Justices.” Rifts between a clerk and his or her justice could have immediate and lasting implications, according to interviews with those who have held the one-year positions as well as advisers to last year’s class. The job rested on intimacy with justices, the ability to channel the bosses’ voices and views in drafting opinions.
The advantages accrued in one year at the court can compound for decades. For those who move on to law firms, the signing bonuses can be as high as $450,000, according to several lawyers at firms that recruit and hire them. The justices have powerful alumni networks that include reunions. A justice’s endorsement can be decisive for a federal judgeship or a law professor post. Many clerks join appellate practices, where, after a mandatory short break from court business, they spend the rest of their careers being paid handsomely to read and influence the justices’ minds.
But the marshal’s search was broad. The interview questions, and the affidavits the clerks were asked to sign, were sweeping, and lying to federal investigators was a crime. Investigators collected the clerks’ court-issued electronic devices and requested their personal ones. The group feared what one person called “spillage” — outed details, such as stray comments about justices or cases, that had nothing to do with the leak but could prove damaging.
The request to hand over personal cellphones caused some to seek legal counsel. It is unclear the degree to which clerks agreed to share the physical devices. But the report said that employees “voluntarily provided call and text detail records and billing statements,” suggesting that at least some may have reached a compromise: Investigators could view records and numbers but did not have access to other personal material.
The Inquiry Expands, and Deflates
In June and July, the inquiry proceeded to other workers, few of whom had the connections or potential earning power of the clerks. Some were long-serving employees who had protected the court’s secrets for years; others were just out of college.
As they sat for interviews, a stenographer and an audio technician captured every word. Some conversations were short and cursory, according to some who were questioned; others were far more detailed. A few employees were brought back for repeat interrogations, according to the report. The marshal’s office interviewed almost 100 workers in all, the report noted. Even the marshal’s aides, junior employees who have limited access to draft opinions, were questioned.
In the course of the investigation, the marshal’s office and other employees realized just how lax the court’s rules and protections had been. The question of whether court material could be brought home was fuzzy. Though employees weren’t supposed to tell anyone about the justices’ decisions, some told their spouses. For all its majesty, the Supreme Court is a porous and somewhat antiquated organization, lacking the armor of other government bodies that handle sensitive information.
In a May 2022 speech, Justice Clarence Thomas described how the leak had changed the atmosphere at the court. “You begin to look over your shoulder,” he said. “It’s like kind of an infidelity. You can explain it, but you can’t undo it.”
But in interviews, employees raised questions about whether the justices themselves have contributed to a decline in trust inside and outside the court.
Periodically, employees receive a stern memo reminding them that they may not participate in partisan political activities — no events, fundraising, bumper stickers or statements on social media. So some bristled when four justices attended a 40th anniversary dinner for the Federalist Society, an influential conservative group that focuses on the judiciary, in November.
Last spring, Thomas declined to recuse himself from cases involving attempts to overthrow the 2020 election, even though Virginia Thomas, his wife, had been involved in those efforts. Months later, a former leader of the anti-abortion movement wrote to the chief justice to report an alleged earlier breach, of a 2014 contraception decision, that he said stemmed from a donor’s meal with Justice Samuel Alito and his wife. The court never responded.
In recent months, as the court has completed its report, new clerks have taken their places in the chambers. Security is tightening. Further protocol changes are promised. And with the release of the report, a growing recognition has taken hold, some employees say: The best chance of understanding who leaked the most consequential decision in generations, and what that person was trying to achieve, is fading away.
© 2023 The New York Times Company
Last spring and summer, employees of the Supreme Court were drawn into an investigation that turned into an uncomfortable awakening.
As the court marshal’s office looked into who had leaked the draft opinion of the decision overturning the constitutional right to abortion, law clerks who had secured coveted perches at the top of the judiciary scrambled for legal advice and navigated quandaries including whether to surrender their personal cellphones to investigators.
The “court family” soon realized that its sloppy security might make it impossible to ever identify the culprit: 82 people, in addition to the justices, had access to the draft opinion. “Burn bags” holding sensitive documents headed for destruction sat around for days. Internal doors swung open with numerical codes that were shared widely and went unchanged for months.
Perhaps most painful, some employees found themselves questioning the integrity of the institution they had pledged to serve, according to interviews with almost two dozen current and former employees, former law clerks, advisers to last year’s clerkship class and others close to them, who provided previously undisclosed details about the investigation.
Inside the court, justices are treated with such day-to-day deference that junior aides assist them in putting on their black robes. As staff members were grilled, some grew concerned about the fairness of the inquiry, worried that the nine most powerful people at the court were not being questioned rigorously like everyone else.
The investigation was an attempt by Chief Justice John Roberts to right the institution and its image after a grievous breach and slide in public trust. Instead, it may have lowered confidence inside the court and out.
On Thursday, the court issued a 20-page report disclosing that the marshal’s monthslong search for the leaker had been fruitless, and detailing embarrassing gaps in internal policies and security. While noting that 97 workers had been formally interviewed, the report did not say whether the justices or their spouses had been.
Public reaction was scathing: “Not even a sentence explaining why they were or weren’t questioned,” tweeted Sean Davis, co-founder of The Federalist, a conservative magazine.
A day later, the court was forced to issue a second statement saying that the marshal had in fact conferred with the justices, but on very different terms from others at the institution. Lower-level employees had been formally interrogated, recorded, pressed to sign affidavits denying any involvement and warned that they could lose their jobs if they failed to answer questions fully, according to interviews and the report.
In contrast, conversations with the justices had been a two-way “iterative process” in which they asked as well as answered questions, the marshal, Gail Curley, wrote. She had seen no need for them to sign affidavits, she said.
Instead of putting the matter to rest, Friday’s statement heightened concerns about a double standard for justices.
“They weren’t subjected to the same level of scrutiny,” said one court worker on Friday, speaking on the condition of anonymity because of the court’s confidentiality rules. “It’s hard to imagine any of them suffering meaningful consequences even if they were implicated in the leak.”
Internal examinations can build or sap an organization’s authority, said Glenn Fine, a former inspector general for the Justice Department who has conducted such inquiries, and more recently, has argued that the court needs a similar figure.
“Leak investigations are a double-edged sword,” Fine said in an interview. A thorough investigation can be a deterrent, but “an investigation that doesn’t solve a leak may embolden more leakers in the future.”
Failing to fully scrutinize the justices “just completely undermines the court’s credibility,” said Mark Zaid, a lawyer who often handles government investigations. “It sends a message of superiority that does not exist under the eyes of the law.”
Besides, “justices have a long history of being the ultimate source of leaks,” Aaron Tang, a law professor and former clerk to Justice Sonia Sotomayor, wrote in an Opinion essay in The New York Times.
In interviews, some employees said the leak and investigation further tainted the atmosphere inside a court that had already grown tense with disagreement. The leak spurred finger pointing, they said, with many conservatives convinced that a liberal had engineered the breach and vice versa. Just as the justices have grown more divided, so has their staff, eroding trust. Voices are more hushed now, the employees said, and doors that used to be open are closed.
Interrogating the Staff
In December 2021, after an early vote by the justices, word of the decision in Dobbs v. Jackson Women’s Health Organization began to circulate in the court. The new conservative supermajority was about to overturn Roe v. Wade, removing a right in force for nearly a half-century. Wrenching for some on the staff and welcome for others, the outcome would have to be closely guarded by the court for six months.
In February, the draft opinion was emailed to a list of 70 clerks and employees; it eventually was seen by a dozen more, the report said. Some employees discussed the results with confidants in the building, and a few later admitted that they told their spouses, according to the report.
But the publication of the full draft opinion in Politico on May 2 was a shock felt almost physically at the court: Protesters roared outside the building, so loud they could be heard from some bathrooms. Over the years, information had occasionally dribbled out about pending decisions. But the court’s opinion was not yet final, and the leak seemed calculated to interfere with deliberations: “a grave assault on the judicial process,” as the marshal’s report would put it.
By the time the chief justice summoned the three dozen clerks for a mandatory meeting about the breach, many of the pedigreed young lawyers were worried. On the internet, accusers on the right were attacking the liberal justices’ clerks, posting names and photos and wild whodunit theories. One clerk had been quoted in a Politico article years before. Another had a master’s degree in gender studies, had written about reproductive rights and was married to a reporter. The tweets went viral, with tens of thousands of likes. (Later the court’s investigators found “nothing to substantiate” those accusations.)
The chief had assigned the investigation to Curley, the marshal, whose best-known task was crying “Oyez, oyez, oyez!” as justices entered the courtroom. She was a respected former Army lawyer, but her division had little of the investigative muscle of other government agencies, no subpoena power and a staff only partly devoted to security. Others on her team dealt with court administrative tasks such as staffing events and handling mail.
But Roberts was a staunch defender of the court’s independence, reluctant to let outsiders interfere. “The Judiciary’s power to manage its internal affairs,” he had written months before, “insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government.”
As interviews of clerks began, a dilemma emerged. No one wanted to seem uncooperative, as if they had something to hide. The court’s written code of conduct states that the justices “expect and require complete loyalty from their own law clerks and the clerks of all other Justices.” Rifts between a clerk and his or her justice could have immediate and lasting implications, according to interviews with those who have held the one-year positions as well as advisers to last year’s class. The job rested on intimacy with justices, the ability to channel the bosses’ voices and views in drafting opinions.
The advantages accrued in one year at the court can compound for decades. For those who move on to law firms, the signing bonuses can be as high as $450,000, according to several lawyers at firms that recruit and hire them. The justices have powerful alumni networks that include reunions. A justice’s endorsement can be decisive for a federal judgeship or a law professor post. Many clerks join appellate practices, where, after a mandatory short break from court business, they spend the rest of their careers being paid handsomely to read and influence the justices’ minds.
But the marshal’s search was broad. The interview questions, and the affidavits the clerks were asked to sign, were sweeping, and lying to federal investigators was a crime. Investigators collected the clerks’ court-issued electronic devices and requested their personal ones. The group feared what one person called “spillage” — outed details, such as stray comments about justices or cases, that had nothing to do with the leak but could prove damaging.
The request to hand over personal cellphones caused some to seek legal counsel. It is unclear the degree to which clerks agreed to share the physical devices. But the report said that employees “voluntarily provided call and text detail records and billing statements,” suggesting that at least some may have reached a compromise: Investigators could view records and numbers but did not have access to other personal material.
The Inquiry Expands, and Deflates
In June and July, the inquiry proceeded to other workers, few of whom had the connections or potential earning power of the clerks. Some were long-serving employees who had protected the court’s secrets for years; others were just out of college.
As they sat for interviews, a stenographer and an audio technician captured every word. Some conversations were short and cursory, according to some who were questioned; others were far more detailed. A few employees were brought back for repeat interrogations, according to the report. The marshal’s office interviewed almost 100 workers in all, the report noted. Even the marshal’s aides, junior employees who have limited access to draft opinions, were questioned.
In the course of the investigation, the marshal’s office and other employees realized just how lax the court’s rules and protections had been. The question of whether court material could be brought home was fuzzy. Though employees weren’t supposed to tell anyone about the justices’ decisions, some told their spouses. For all its majesty, the Supreme Court is a porous and somewhat antiquated organization, lacking the armor of other government bodies that handle sensitive information.
In a May 2022 speech, Justice Clarence Thomas described how the leak had changed the atmosphere at the court. “You begin to look over your shoulder,” he said. “It’s like kind of an infidelity. You can explain it, but you can’t undo it.”
But in interviews, employees raised questions about whether the justices themselves have contributed to a decline in trust inside and outside the court.
Periodically, employees receive a stern memo reminding them that they may not participate in partisan political activities — no events, fundraising, bumper stickers or statements on social media. So some bristled when four justices attended a 40th anniversary dinner for the Federalist Society, an influential conservative group that focuses on the judiciary, in November.
Last spring, Thomas declined to recuse himself from cases involving attempts to overthrow the 2020 election, even though Virginia Thomas, his wife, had been involved in those efforts. Months later, a former leader of the anti-abortion movement wrote to the chief justice to report an alleged earlier breach, of a 2014 contraception decision, that he said stemmed from a donor’s meal with Justice Samuel Alito and his wife. The court never responded.
In recent months, as the court has completed its report, new clerks have taken their places in the chambers. Security is tightening. Further protocol changes are promised. And with the release of the report, a growing recognition has taken hold, some employees say: The best chance of understanding who leaked the most consequential decision in generations, and what that person was trying to achieve, is fading away.
© 2023 The New York Times Company
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