Being A Supreme Court Clerk Now Hazardous To Your Privacy
from the tradeoffs dept
As you certainly remember, last month Politico published a draft opinion, written by Justice Alito, overturning Roe v. Wade. The final ruling has not yet come out, but is expected soon (as the Supreme Court session is nearing its conclusion). There has been tremendous speculation over who leaked the draft (and why). There has been lots of pointing fingers and assumptions, but the truth is that almost no one actually knows other than whoever leaked it, and the journalists who received it. Much of the speculation has fallen on the law clerks at the Supreme Court — the recent law school grads who often do a lot of the work on the cases that come before the court.
Some people insist that it must have been left-leaning clerks who were alarmed at the draft opinion, while others have suggested that it may have been right-leaning clerks who were worried that support for Alito’s opinion was waning, and hoping to shore up the support. Again, as of right now, we have no idea. Reports suggest that somewhere around 75 people may have had access to the draft, including the Justices, their clerks, and various other people working at the Court.
However, as a recent CNN report notes, the investigation into the leak, as demanded by Chief Justice Roberts, and carried out by the Court’s marshal, is apparently focusing on the clerks, including “taking steps to require law clerks provide cell phone records and sign affidavits.” That has raised an awful lot of eyebrows.
At the very least, this puts basically all clerks (yes, including any or all of them who didn’t leak the draft) in a precarious position. Given the risk of legal exposure, clerks almost certainly need to lawyer up. And by legal exposure, I don’t just mean for whoever may have leaked the draft. Signing an affidavit also can put them at risk:
By signing an affidavit, if what they sign isn’t true, clerks open up themselves to criminal liability that likely isn’t present by simply leaking the opinion draft. That is because false statements to government investigators — including in written statements — is a federal crime that carries up to five years in prison.
So, that’s the kind of thing that you would want to have a lawyer review. And yet, of course, hiring a lawyer is often (falsely, and somewhat ridiculously) seen as a sign of guilt. One hopes that the Supreme Court, of all places, would recognize why that’s bullshit, but you never know.
“The clerks are probably the most vulnerable workers who had access to that information in the building, because their career could be dramatically affected by how they chose to respond,” Catherine Fisk, a professor of employment law at UC Berkeley School of Law, told CNN. The basic act of lawyering up could create an inference of guilt “is certainly a fear that they would have.”
And, of course, there are questions about what happens when you allow your employer to look through your phone records, again, even if you’re not the leaker.
Will investigators be able to scoop up data about clerk conduct not related to the leak? Could that data be used against the clerks in a criminal context, or even to justify disciplinary action against them?
“Or it could include information about a friend or family member of a clerk who is engaged in conduct that is unlawful,” Fisk said, noting that in criminal investigations, such information is often used as leverage to get information investigators really want.
Then there’s the possibility of investigation picking up sensitive conversations clerks had about other justices or other clerks — with the potential of further inflaming tensions at time when trust within the Supreme Court’s walls has bottomed out.
That article also quotes law professor Laurence Tribe noting that it would “be entirely appropriate” for the law clerks to refuse to share their cell phone records, but recognizes that there could be significant consequences, including losing their clerkship, and taking a big reputational hit for doing so (not to mention the rumor mill that would certainly accuse them of leaking).
There are some questions about whether or not the clerks might be protected under so called “Garrity Rights” that supposedly protect public employees from incriminating themselves (based on a 1967 Supreme Court case), but others suggest that, depending on lots of important, but unknown details, that might not apply here.
At the very least, it seems like the current crop of Supreme Court clerks may have a newfound understanding of the privacy issues related to their own cell phone records. One hopes that they, and future clerks, remember this the next time a 4th Amendment case regarding cell phone records hits the court’s docket, though I’m guessing that they will assume “that’s different.”