SCOTUS Turning Up The Heat In Probe Of Roe Draft Opinion Leak: Report

Officials affiliated with the Supreme Court are reportedly intensifying their investigation into the leak of the draft opinion that would overturn Roe v. Wade, allegedly causing law clerks working for SCOTUS justices to consider obtaining legal counsel.

New steps taken by the Court reportedly include obtaining law clerks’ cell phone records and signed affidavits, according to sources providing information to CNN.

“Chief Justice John Roberts met with law clerks as a group after the breach,” CNN reported, “but it is not known whether any systematic individual interviews have occurred.”

“I think an attorney, in the course of representation, could decide to speak to the press to promote his client’s interests,” Josh Blackman pointed out at Reason. “But there is an open question: does the attorney-client privilege survive in light of a duty of confidentiality to the Court? That is, could a clerk tell her attorney about some internal information in order to prepare a legal strategy? Could the Chief fire a clerk who confides in this lawyer?”

The investigation is headed by the Supreme Court marshal, Colonel Gail Curley, who is “in some ways constrained in her investigation by her position, which was created just after the Civil War, in 1867,” AP noted.

“Experts say leaking the draft opinion likely wasn’t a crime, and Curley’s investigative tools are limited,” AP continued. “She could theoretically hire an outside law firm to assist, and in other judicial records cases the FBI has been called in. But it isn’t clear if she or others have the power to issue subpoenas to get material from journalists or the fewer than 100 people in the court — including justices — with access to a draft opinion.”

After the leak of the draft opinion on May 3, Chief Justice John Roberts harshly criticized the leak, calling it “a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” adding that he had “directed the Marshal of the Court to launch an investigation into the source of the leak.”

In the draft opinion, Justice Samuel Alito wrote bluntly:

We hold that Roe and Casey (Planned Parenthood v. Casey) must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey chiefly rely — the Due Process Clause of the Fourteenth Amendment. … It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.

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