'Alarmed' Supreme Court clerks mull outside counsel as 'unprecedented' leak probe eyes personal phone records

The worst fears of reproductive rights activists were confirmed on May 2, when Politico reported that U.S. Supreme Court Justice Samuel Alito — in a leaked majority draft opinion — makes an argument for overturning Roe v. Wade. It remains a mystery who leaked the draft, and according to three CNN sources, High Court officials are “taking steps to require law clerks to provide cell phone records and sign affidavits” as part of their investigation.

CNN legal analyst Joan Biskupic, in an article published on May 31, explains, “Some clerks are apparently so alarmed over the moves, particularly the sudden requests for private cell data, that they have begun exploring whether to hire outside counsel. The Court's moves are unprecedented and the most striking development to date in the investigation into who might have provided Politico with the draft opinion it published on May 2.”

Biskupic adds, “The probe has intensified the already high tensions at the Supreme Court, where the conservative majority is poised to roll back a half-century of abortion rights and privacy protections. Chief Justice John Roberts met with law clerks as a group after the breach, CNN has learned, but it is not known whether any systematic individual interviews have occurred.”

Roberts, Biskupic notes, ordered the investigation on May 3, the day after Politico published the Alito draft/Roe v. Wade bombshell, and asked Gail Curley, the Supreme Court’s marshal, to lead it.

A CNN source described by Biskupic as an “appellate lawyer with experience in investigations and knowledge of the new demands on law clerks” believes that it is perfectly reasonable for clerks to hire independent counsel if they’re being asked to hand over their phone records.

“That's what similarly situated individuals would do in virtually any other government investigation,” the attorney told CNN. “It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection.”

Alito’s draft opinion was written for the case Dobbs v. Jackson Women's Health Organization, which deals with a Mississippi abortion law. Roberts has confirmed the document’s authenticity but stressed that what Alito wrote is only a draft and not necessarily the Supreme Court’s final decision.

“The clerks have been the subject of much of the outside speculation over who might have disclosed the draft, but they are not the only insiders who had access,” Biskupic notes. “Alito's opinion, labeled a first draft and dated February 10, would have been circulated to the nine justices, their clerks, and key staffers within each justice's chambers and select administrative offices. If tradition was followed, copies were sent electronically and, separately, printed out and hand-delivered to chambers by aides to the marshal.”

Biskupic adds, “Other employees connected to the nine chambers would have had some access to the opinion. CNN could not verify that number, but former law clerks say the document could have been sent through regular channels to nearly 75 people. It is not known if Court officials are asking employees who are part of the permanent staff, beyond the one-year law clerks, for their phone records.”