Some clerks are apparently so alarmed by the moves, especially the sudden requests for private cell data, that they have begun to consider whether to hire outside counsel.
Chief Justice John Roberts met with lawyers as a group after the breach, CNN has learned, but it’s unclear whether any systematic individual interviews took place.
Out-of-court lawyers who have become aware of the new investigations related to cellphone details warn of potential intrusion into the personal activities of clerks, regardless of any disclosure to the media, and say they may feel the need to get an independent lawyer.
“It’s what similarly situated individuals would do in virtually any other government investigation,” said an appeals lawyer with experience in investigations and familiar with the new requirements for paralegals. “It would be hypocritical for the Supreme Court to prevent its own employees from enjoying this fundamental legal protection.”
Sources familiar with the ongoing efforts say the exact language of the affidavits or the intended scope of this cell phone search – content or time period covered – is not yet clear.
The Supreme Court did not respond to a request from CNN on Monday for comments related to the phone searches and affidavits.
The young lawyers selected each year to be court officers are considered the elite of the elite. (Each judge typically hires four.) They are mostly Ivy League law school graduates and have clerked experience with prominent US appellate court judges.
Their one-year service becomes a golden ticket to prestigious law firms, high-level government positions, or professorships. Six of the nine current Supreme Court justices are former clerks.
The legal scrutiny reflects Roberts’ concerns about breach of confidentiality and possible further leaks. It also suggests that the court has so far failed to determine Politico’s source.
Roberts ordered the inquest on May 3, designating court marshal Gail Curley to lead the investigation.
Curley, a lawyer and former Army colonel, oversees the building’s police. She is best known to the public as the person who chants “Oyez! Oyez! Oyez!” at the beginning of the judges’ closing remarks. The marshal’s office would not normally review details of mobile phone data or engage in a full-scale personnel investigation.
The inquiry comes at the busiest time in the court’s annual mandate, when relations between the judges are already strained. Aided by their lawyers, judges are rushing to late June deadlines, trying to resolve disputes in the toughest cases, all with new pressure and public scrutiny.
The justices are also resolving a dispute in New York that could, based on their remarks during oral arguments in November, extend Second Amendment protections to gun owners. Additionally, the court could further lower the wall of separation between church and state by allowing certain prayers in public schools and requiring public vouchers for religious institutions.
The release of Alito’s draft opinion has already sparked nationwide protests and dueling state legislative efforts — to further eliminate all options for a woman seeking to terminate a pregnancy or, alternatively, to try to protect the child. women’s access to abortion when possible.
But it’s unclear for anyone outside the building whether Alito’s draft still has a majority in a court narrowly divided over abortion rights and divided over how quickly to overturn precedent.
Secret group scrutiny
While the judges continue their secret negotiations, the control of the clerks intensifies.
Clerks have been the subject of much of the outside speculation about who might have leaked the project, but they aren’t the only insiders with access to it. Alito’s opinion, dubbed a first draft and dated February 10, was reportedly circulated to the nine justices, their clerks, and key staff within each judge’s chambers and some administrative offices.
If tradition was followed, copies were sent electronically and, separately, printed and delivered by hand to the chambers by assistants to the marshal.
Other employees linked to the nine chambers would have had some access to the notice. CNN could not verify that number, but former lawyers said the document could have been sent through regular channels to nearly 75 people. It is unclear whether court officials ask employees who are permanent staff, beyond one-year paralegals, for their phone records.
Mobile phones, of course, contain a huge amount of information, related to personal interactions, involving all kinds of content, text and images, as well as the applications used. It is uncertain whether call-only details would be searched or if broader recovery would take place.
There are protocols for handling draft judicial opinions, which circulate electronically on a closed system, separate from the computer system used by judges and court employees to communicate with people outside the court. Yet it is possible for printed copies to leave the building even under innocent circumstances, as the work is brought home.
Judicial officials are secretive even in normal times. No progress report related to the investigation into the leaks has been made public, and it is unclear if a report from the probe will ever be released.