In a striking new development, clerks to the nine US Supreme Court justices are reportedly being asked to hand over cell phone records and sign affidavits as part of a continuing investigation into the source of the leaked draft opinion that recently sent shockwaves through the country.
The request, as first reported by CNN, is an unprecedented one, and some clerks are “so alarmed” by it that they’ve “begun exploring whether to hire outside counsel.” Although the exact scope of the requested cell phone information and affidavits remains unclear, one lawyer close to the situation says that such a move would not be out of the ordinary: “That’s what similarly situated individuals would do in virtually any other government investigation.”
The investigation stems from a May 2 leak of a draft Supreme Court opinion which appeared to show that the Court was preparing to overturn Roe v. Wade, the 1973 case which established a federal right to abortion access. In the opinion, authored by conservative Justice Samuel Alito for the still pending Dobbs v. Jackson Women’s Health Organization case, the Court finds that Roe was “egregiously wrong from the start.”
The leaked Dobbs opinion sparked a firestorm of controversy as soon as it surfaced in early May. Protests ensued outside the Supreme Court and the private homes of the court’s conservative justices, and Democrats in Congress tried and failed to codify abortion rights into federal law. Many Republicans, while largely welcoming of the draft opinion’s content, saw the leak as a serious threat to the confidential operation of the Supreme Court.
Such concerns were echoed by Chief Justice John Roberts, who ordered the investigation on May 3. “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” Roberts said at the time.
In response to the leak and concerns about confidentiality, Republican representatives introduced a new bill on Tuesday that would make it a federal crime to leak confidential information from the Supreme Court. If passed, the legislation would make such breaches punishable by up to five years in prison. “The institution of the Court has been damaged,” Rep. Mike Johnson (R-LA), one of the 12 GOP sponsors of the bill, said Tuesday, “and we must do what we can to try to repair it.