Reviews | The Supreme Court’s Desperate Decision to Seize Cell Phones from Clerks

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Frustrations appear to be mounting in the Supreme Court four weeks after Politico released a leaked draft opinion by Judge Samuel A. Alito Jr. that would strike down Roe vs. Wade. As CNN’s Joan Biskupic reported, High Court officials are set to “require clerks to provide cell phone records and sign affidavits”, an alarming development that has prompted some clerks to consider becoming lawyers.

Biskupic’s scoop relies on “three sources with knowledge of the efforts” – meaning the outlines of the leak investigation are leaking. Chief Justice John G. Roberts Jr. announced the investigation, led by Supreme Court Marshal Gail Curley, a day after Alito’s project was leaked onto the internet. “To the extent that this betrayal of court confidences was intended to undermine the integrity of our operations, it will not succeed,” Roberts said in a statement.

Cell phones these days don’t respect borders, harboring data and information about people’s personal and professional lives. The invasiveness of the court’s digital pat-down, Biskupic reports, is unclear at this point. Given the implications of the investigation, it’s no wonder clerks — each judge has a four-person contingent — are “freaking out,” said CNN chief legal analyst Jeffrey Toobin.

The investigation into the Supreme Court leaks lacks the national security ramifications of leaks that have dominated headlines over the years. These generally involve the disclosure of classified information and are violations of federal law. The Supreme Court’s inquiry, on the other hand, appears to be limited to an employment case; if unmasked, the lessor may lose his job and possibly be blackballed in the legal community or, depending on the ideological circumstances, hailed as a hero. There is nothing classified, after all, about a draft Supreme Court document; it contains arguments, not revelations about sources of confidential information.

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‘If all they did was print it out and give it to Politico, there’s no crime being committed,’ says Mark Zaid, an attorney who has represented clients in leak cases governmental.

Phones are a logical starting point for those looking to limit unauthorized communications. During his turbulent tenure as White House press secretary during the Trump administration, Sean Spicer grew concerned that staffers were leaking information, including plans to hire the Republican operative. Michael Dubke as Director of Communications. So Spicer instituted random phone checks for his team members, news of which leaked fairly quickly to Politico.

Spicer lasted six months as press secretary.

For another example of how leakers are responding to leak enforcement efforts, recall the Trump-era State Department, which penned a memo for then-Secretary of State Rex Tillerson, on the dangers of unauthorized disclosures. He quickly found his way to The Post.

Thanks to this dynamic, the quest to punish the Politico backer could turn out to be the most leaked thing the Supreme Court has done in quite some time.

In his statement, Roberts called the leak of the draft notice “an affront to the Court and to the community of public servants who work here.” Demanding the surrender of cell phones could also prove to be an affront to Supreme Court staff. Biskupic reports that the investigative measures being considered apply to court clerks. But what about the judges themselves and the administrative staff who may have had access to the material? “To be fair, they should ask all judges for their personal cell phones,” says Zaid, who says if he were a Supreme Court clerk, he would now talk to his fellow clerks about “why none of us should hand over his personal phone”. government cell phone data.

After Politico published the draft notice, commentators speculated about who would run the risk of violating the Supreme Court’s standard against disclosing the organization’s work product before it was published as part of of a long-standing procedure. Perhaps it was someone who feared the five-judge conservative majority behind Alito’s draft was in danger of unraveling – and the leak could serve to cement it. Maybe it was someone who wanted to sound the alarm on the left about the apparent disappearance of deer.

Either way, it’s been a time of running away from court. In addition to the original draft advisory, there have been other anonymous stories about internal events over the past few weeks, including Biskupic’s article. Perhaps the investigation — and any penalties it might impose — will stifle imprecise activity and return the court to its tradition of less startling leaks.

Maybe not too. “Presumably whoever did this – other than it being an accident or a very serious inadvertent mistake – it is presumed to have been driven by very strong ideologies on either side “, says Zaid. “And if that’s the case, there’s no stopping it from happening again in the highly partisan and polarized environment in which we find ourselves.”


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