WASHINGTON, D.C. – Investigators hunting for the alleged leaker of the Supreme Court’s upcoming draft opinion expected to overturn Roe v. Wade – the landmark 1973 decision to protect a pregnant woman’s ability to choose to get an abortion – have turned up the heat, reportedly requiring law clerks to turn over their cellular phone records and sign affidavits in what experts are calling an “unprecedented” move.
Reports indicate that some clerks – who are alarmed by these new developments and what they mean for their privacy – have been weighing their options in terms of hiring attorneys to protect their rights.
On May 2, 2022, Politico released a first draft of a majority opinion written by Justice Samuel Alito, calling the Roe decision “egregiously wrong from the start” and would allow states to decide on abortion restrictions, overturning Roe v. Wade. The leaking of the draft opinion – which is not final, with justices able to change their votes – was considered unheard of, with Chief Justice Roberts describing the incident as a “betrayal of the confidences of the Court.”
Since the leak, Roberts had ordered the court’s marshal, Gail Curley, to begin conducting an investigation into the culprit, although it is not currently known if there are any suspects in connection with Politico’s source.
However, the new request for phone records could intrude on the private lives of the clerks, a lawyer with experience in investigations says, who recommends that anyone asked for their personal information obtain legal counsel.
“That’s what similarly situated individuals would do in virtually any other government investigation,” the lawyer said. “It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection.”
According to sources, the wording of the affidavits – and the degree to which investigators would be intruding into the clerks’ cell phone history – has not yet been completely revealed, leaving a lot of grey area.
A law clerk is an individual – normally an attorney – who provides direct assistance and counsel to a judge in making legal determinations and in writing opinions by researching issues before the court. Clerking for a Supreme Court justice is normally considered a holy grail for up-and-coming lawyers, as having that distinction on their resume can open many doors for future employment at prestigious law firms.
Since the draft opinion to overturn Roe v. Wade was leaked, mass protests have taken place across the United States by abortion rights advocates and their allies; if the ruling proposed by the draft comes to pass, those protests are expected to greatly increase in scope and scale.