Nest of Scorpions

The Supreme Court is currently riven with distrust among law clerks, staff and, most of all, the justices themselves after the draft Roe v. Wade opinion was leaked.

The atmosphere is so ugly one source told NPR: "the place sounds like it's imploding."https://t.co/nhAhInShMl

— NPR (@NPR) June 8, 2022

 I like to think I could have come up with this much of an analysis of the problem of an investigation within the Supreme Court, because it seems so clear when you see it written out:

Now, turning to this leak, CNN has reported that the court "has taken steps to" ask the clerks to sign sworn affidavits and to essentially dump their cellphones.

"Taken steps to" doesn't mean that anything has actually happened. But if the clerks have been asked to sign an affidavit, it is unknown what is in the affidavit or will be in the affidavit. And while the leak of a draft opinion is in fact a huge ethical breach, the draft is not classified, so the leak is not a crime. That said, lying in a sworn affidavit is.

So, imagine you swear under oath that you didn't have anything to do with the leak, and it turns out that your former college classmate is a reporter, and you had dinner with him in April prior to the leak; you could be in a heap of trouble. So, indications are that some law clerks are lawyering up. And some justices may forbid cooperation with a probe they see as a witch hunt.

Not to mention that if the court can dump information from a clerk's cellphone without a warrant, that directly contradicts the Supreme Court's own ruling eight years ago when it said that police could not search a suspected gang member's phone without a warrant after he was pulled over in a traffic stop.

There was a lot of stupidity on Twitter (Ed.:  "When is there NOT a lot of stupidity on Twitter?"  Fair point.) back when reports of these affidavits hit the press.  The stupidity was people questioning why a law clerk would need a lawyer.  The third paragraph there answers that question quite nicely.  Not only would such a scenario land you in career trouble (which is why I still think a leak this momentous came from a Justice, not a clerk.  Justices can't be fired.  McConnell is not going to allow a Justice to be impeached over this; not as long as Biden is in the White House.), it could land you in the cross-hairs of a criminal investigation; which doesn't help your career, or for that matter your standing with the bar, much at all.

I'm not even getting to the fourth paragraph, which raises so many Constitutional issues it's not funny.  It is, however, rife with ironies:

Roberts wrote the court's unanimous opinion, saying that modern cellphones are not just another technological convenience. They are a compendium of everything in a person's life — your political preferences, interests, hobbies, medical records, where you have been and with whom.

"Allowing a warrantless search of all this information is not just an incidental intrusion like a peek into a cigarette pack," he said in summarizing the opinion from the bench. "It is a significant invasion of privacy."

The Fourth Amendment, he noted, was the Founders' response to the reviled "general warrants" of the colonial era, which allowed British officers "to rummage through homes in an unrestrained search for evidence of criminal activity." 

Yes, the 4th Amendment is where the constitutional concept of a "right of privacy" is grounded, and yes, that phrase is a very, very old one in Constitutional jurisprudence and analysis.  No, Roberts use of it in that opinion doesn't directly impinge on Alito's use of the word (and concept) in Dobbs.  Not directly; but Alito makes it direct by arguing the word "privacy" doesn't exist in the Constitution, and therefore is illegitimate as a basis for Roe (or Griswold, really).  Strictly speaking he's using the word "privacy" in a different way there than it is used in 4th Amendment analysis.  But that's the problem with Alito's analysis, and his glib dismissal based on a "missing" word in a certain text.  It's also a problem with his rejection of stare decisis as it suits him, because when you pull on that thread you start ot unravel an entire tapestry of laws and jurisprudence, and wiser heads say you don't do that; even if you are the Supreme Court, Bitchez!

But pity the poor law clerks:

Now, however, the court may be doing just that (i.e., demanding cell phone content without a search warrant), and the terrified law clerks have been calling law firms, wondering whether they need legal representation. All of this presents its own ethical problems, since these law firms do have cases in front of the Supreme Court. 

There's another issue there, nascent but real:  what if a trial court or a federal magistrate denies a request for a search warrant from the Supreme Court marshal?  Is that appealed to, finally, the high Court?  Don't they have to decline to rule, even if the appellate court issues an egregiously bad decision on the matter? Qui custodiet ipso custodes? (Orin Kerr says the issue is phone records, not phone content; which is indeed another kettle of fish entirely.  And while he analyzes scenarios where the phones might be investigated themselves, he doesn't touch on the really touchy legal question:  what if the trial court and the appellate court disagree?  Are the clerks screwed because the final arbter is their employer and the one (via the marshal, who works for the Court) doing the investigation?  That's a helluva a due process issue, and probably very much a reason why some Justices oppose the investigation altogether.)

And here's something Steve Vladeck hasn't mentioned yet.  Well, let me put that in context via Professor Vladeck first:

There is a 99.9% chance that #SCOTUS will be handing down additional (perhaps *major*) decisions in argued cases starting at 10 ET on Monday, June 13, as it has done every Monday in June for as long as I can remember.

Why not start the hearing at 11? https://t.co/6wTrBGk4Me

— Steve Vladeck (@steve_vladeck) June 6, 2022

He's identified a real problem. He's been commenting on the lack of opinions from the court in these final days of its term, for a long time. This may be why there are such delays:

"I don't know how on earth the court is going to finish up its work this term," said a source close to the justices. The clerks, he explained, are sort of "the court's diplomatic corps." Especially at this time of year, they talk to each other, with the approval of their bosses, to find out how far the envelope can be pushed in this case or that one — or conversely, how can we soften language to get five justices on board. But at the moment, he noted, the clerks are terrified that their whole professional lives could be blown up, so they aren't able to do that. In short, it's a very perilous time for the Supreme Court.

Early in that story, NPR notes the infamous Obamacare decision (which would have been an egegious one, were it not for Roberts):

The root of the current antipathy is not definitely known. What is known is that Roberts infuriated some of conservatives on the court 10 years ago when he changed his mind and voted to uphold key provisions of the Affordable Care Act. These switches are rare, but they do happen; justices change their minds, and in good faith. But that switch so angered some of the court's conservatives that it leaked, obviously from someone connected to a conservative justice, who aimed to embarrass Roberts.

I still say somebody decided to do that again; but with a full opinion this time, not just a word whispered in a reporter's shell-like.  That, of course, was the nuclear option; and now the Court is a post-nuclear hellscape.

The problem is how that affects the rest of us.