The Supreme Court is set to meet behind closed doors on Thursday for the first time since the astonishing leak of a draft opinion that would overturn Roe v. Wade.
The justices plan to discuss pending petitions and outstanding cases — but they’re also likely to grapple with the aftermath of that remarkable breach of the court’s confidential operations. While the draft opinion calling for the reversal of a near-50-year-old landmark precedent stunned the country, the leak itself stunned the court.
Chief Justice John Roberts quickly ordered the marshal of the court — Col. Gail A. Curley — to begin an internal investigation, but sources familiar with how the court operates say the inquiry could lead to uncomfortable privacy issues, trigger further tension and erode trust as the justices work furiously to resolve cases concerning some of the most important social issues of the day regarding abortion, gun rights, religious liberty and the environment. Curley serves as the court’s chief security officer and manages the Supreme Court Police Force.
“Everything depends,” one source familiar with the court’s inner workings said, “on how much authority the chief justice gives the marshal.”
Here’s what ought to happen.
1. Keep in mind that Josh Gerstein’s name appears on the byline of the initial leak. Do any of the clerks have a pre-existing relationship with him? (The answer is yes, but I will leave it at that, as I don’t think discussing named suspects is a good idea at this point.)
2. Present all the clerks (and other employees with access to the draft, but I think it’s a clerk) with a statement to sign under penalty of perjury affirming they were not involved in the leak. Let’s see how confident they are that they have covered their tracks. Anyone who refuses to sign is gone yesterday. Former Supreme Court clerk Sarah Isgur says the clerks are employees of the Court, not the justices, although they are traditionally treated as employees of the justices for whom they work. Chief Justice Roberts has the power to insist on a sworn statement, I think.
I have said all along I think it’s a leak from the left. More and more people seem to be coming around to my position. I think we’ll find out. If it’s someone from the right, I think their future in law is done. If it’s someone from the left, s/he will be a folk hero(ine) and who knows how soft their landing will be?
But I think we’ll find out.