Patterico's Pontifications


What the Marshal of the Supreme Court Should Do

Filed under: General — Patterico @ 8:29 am


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.

28 Responses to “What the Marshal of the Supreme Court Should Do”

  1. They should bring in experts in corporate espionage, the leaking of trade secrets and insider information and such, and order everyone to cooperate. Besides the question of expertise, the Marshals should also be considered suspects.

    nk (174b23)

  2. @1. At the very least.

    It’s been nearly two weeks. Modern, efficient organizations keep track of stuff. And when they don’t, they catch hell and are held accountable. This isn’t really the marshal’s problem to field. This clearly an administrative issue. Who the hell is the office manager at that place?

    An organization that is a closed system w/a personnel pool of less than 50 people known for near obsessive secrecy which cannot keep track of a few pieces of paper is in no position to rule on matters affecting 330 million people. Do they still use typewriters, too? The longer they take, the more damage they’re doing to themselves, eroding the veneer of ‘integrity’ cultivated for decades. It doesn’t take much to destroy that– and decades to repair. Ask NASA.

    SCOTUS should have been shut down immediately; all work suspended; staff vetted and this put to bed by last Friday. Sound management would have done that. Hell, Congress drafted and passed $40 billion in aid to Ukraine in less time. Now, the damage is done- and the subsequent issues- demonstrations, harassments and so forth, keep raging. Everything traces back to the leak. They’re destroying themselves. Next time ‘The Dancing Itos’ are in hold court, the first question to ask: ‘Is your fly open?’ And they’ll all look down.

    DCSCA (e8067b)

  3. Even someone on the left would have a problem. They may be a hero(ine), but they also betrayed a confidence. That’s a problem in legal offices.

    Kevin M (eeb9e9)

  4. If this happened with TS material, they would all be going on the box. The intelligence community believes in lie detectors as very few people have the training to beat them. Some jobs require recurring sessions as a matter of routine. I’ve not been in that situation but I know people who have.

    Kevin M (eeb9e9)

  5. If it was a justice, or done at the request of a justice, I expect Roberts to demand a resignation. He can’t force one, and there is no way any justice could be impeached and convicted, but I think that Roberts could make their tenure difficult.

    Kevin M (eeb9e9)

  6. Going forward, I expect the typical games with non-identical material being circulated. It doesn’t even have to be different words — kerning a few words differently on each copy can reveal a lot.

    Kevin M (eeb9e9)

  7. 1. I suspect the leaker will out himself or herself once the opinion is published. Right now, they want to maintain the narrative “It’s not the leak that matters!”.

    2. If they (whoever they are) really cared, there would be a grand jury. Grand juries do not need probable cause to investigate, they investigate whether there is probable cause. For example, whether a Supreme Court computer was illegally accessed, which is a federal crime. Then they “Judith Miller” Josh Gerstein. Badabing-badaboom! But it won’t happen.

    nk (b7e74e)

  8. #2

    That all sounds great and very fist pounding (it sounds very John McCain circa 2008) , but I think you know that the Supreme Court people probably believed that none of their brethern would dare leak anything and were lax on proper document control. The leak itself is the surest sign of the decline of the republic — not the failure to exercise a prudent level of paranoia.

    Appalled (1a17de)

  9. the inquiry could lead to uncomfortable privacy issues, trigger further tension and erode trust

    When there’s a rat in the house, rooms get tossed. Duh.

    norcal (3f02c4)

  10. The person who leaked this was doing their patriotic duty and is a hero. As a cherokee native american I am well aware of presidential power. When president jackson ordered the cherokee people off their lands and be sent on a death march “the trail of tears” to oklahoma so land speculators could steal their lands. The cherokee’s appealed the order to the supreme court who sided in their favor. President jackson said “let the supreme court enforce their ruling” and sent in the army to enforce his order. Jackson could have been impeached but wasn’t. President biden could send the 5 justices and their families on a trail of tears to some remote alaskan island if he had the guts which he doesn’t.

    asset (80f6f6)

  11. @8. McCain, hell. Abortions is the crab grass in the yard of a house on fire. The issue is the leak itself, not the content; doesn’t matter. The management does. Yeah, fine— sign statements. Mark Felt said he wasn’t Deep Throat for decades– until he confirmed he, in fact, was. But who says a ‘clerk’ did this– conjecture only fuels rumor that fans the flames of discontent. It could be a janitor or a justice— and besides, since the leaker has already demonstrated contempt for the institutional norms, rules and regs, signing a piece of paper saying ‘it wasn’t me’ won’t mean much to ’em. Might as well have the marshal check the petty cash box, too.

    Given the small pool of people w/access to this information in a cloaked organization obsessed w/secrecy and steeped in tradition, if they can’t manage to trace the source in a few days- it indicates some pretty sloppy, if not arcane, office administration going on in at a bureaucracy hidden from sight in Black Robed Club.

    For instance, modern efficient organizations keep track of stuff; they have counters on Xerox machines w/key codes to access use and micro-mark pages to source origin. It’s as much sa matter of organization as it is an issue of budgeting. IPhones and gadgets can be traced, too. Pages/transmissions, microtagged and so on. This should have been put to bed a week ago.

    The SCOTUS are basically bureaucrats now w/life long appointments; even fear modern appliances like TV cameras trained on them doing their jobs as is, whereas the rest of us deal with that as routine in life. And several of the recent batch misled [to be polite] if not out right lied [to be blunt] to their Senate inquisitors in their conformation colloquies. It’s absurd. The latest be-robed bureaucrat was even afraid to define what a woman is out of fear of rejection. Crazy! It’s self-destructive. And they’ve had more than enough time to put this to bed.

    Worse, in the Age of American Populism- when the pot of simmering folks boils over easily and they ‘storm the castle’- tolerance for bureaucratic government incompetence across the board is pretty damn low. They’re damaging their own institution by not putting this fire out fast- and probably don’t realize it because they’re so insulated. Judges may come and go but the damage done to the integrity of institution is permanent.

    DCSCA (57e685)

  12. The person who leaked this was doing their patriotic duty and is a hero.

    The ends justify the mean? Would you be OK with blowing up the court building to save Roe?

    It’s kind of funny that someone who talks about CHANGE!1!! can get all upset when a movement spends FIFTY YEARS making a change happen democratically. YEt the same person would go all Adolph Hitler on everyone he doesn’t like.

    Kevin M (eeb9e9)

  13. Roe could have been saved. All they had to do, over 50 years, was convince the doubters. Loving, Griswold, Lawrence and Obergefell were accepted as done deals by nearly everyone with a couple of years. But not Roe. Which is why it fell.

    In an honest world:

    Senator: “So, do you consider Roe settle law?”
    Nominee: “It’s been 50 years and you still ask? The question answers itself.”

    Kevin M (eeb9e9)

  14. I read that Politico claims not only that there are no further drafts or alternative opinions, but there are no dissents either. (!)

    That can only mean that none has been offered to general circulation among the justices.

    Or that somebody is lying.

    Do the Justices sometimes just contact each other one by one?

    Sammy Finkelman (02a146)

  15. RIP – Randy Weaver, 74.

    Kevin M (eeb9e9)

  16. From Randy Weaver’s testimony to Congress:

    I am not without fault in this matter. I was convicted of failure to appear for trial on charges I had sold a sawed-off shotgun to an ATF informant named Gus Magisano. He testified at trial under a different name—Kenneth Fadeley. That was probably not his real name either. I was found not guilty of the original weapons charge, and I was found not guilty of every other crime I was charged with, including murder and assault on Federal officers. I was charged with conspiring against the Government, and I was found not guilty of that charge. I was in jail for about a year before and during the trial. I have served time after the trial and am now on unsupervised probation. I faced my accusers at a trial. I faced the FBI, the Marshals Service, the U.S. attorney, a Federal judge and a jury of my peers. I faced the death penalty. I have been accountable for my actions. I now face you Senators to ask that those responsible for the killings of my wife and my son be brought to account for their actions.

    If I had it to do over again, knowing what I know now, I would make different choices. I would come down from the mountain for the court appearance. I would not have allowed a deceitful, lying con man working for ATF to push me for almost 3 years to make a sawed-off shotgun for him. I would not allow myself to be tempted in a weak moment when my family needed money. I would not let my fears and the fears of my family keep me from coming down. But my wrongs did not cause Federal agents to commit crimes. Nothing I did caused Federal agents to violate the Constitution of the United States. I did not cause Federal agents to violate the oath of their office. My actions did not cause Federal agents to violate direct orders from Washington. My choices did not cause Federal agents to violate State and Federal law. My behavior did not cause Federal agents to violate their own agency policies. Federal agents have admitted to illegal acts. Judge Freeh, the head of the FBI, has made statements to the press that the so-called rules of engagement were unconstitutional. Federal agents have tried to cover up their illegal actions. That was their choice, not mine. I have been accountable for my choices. They should be held accountable for their wrongs. But no Federal agent has been brought to justice for the killings of Sam and Vicki Weaver.

    Kevin M (eeb9e9)

  17. When president jackson ordered the cherokee people off their lands and be sent on a death march “the trail of tears” to oklahoma so land speculators could steal their lands.

    They took their black slaves with them. And thirty years later, they were fighting on the side of the Confederacy.

    (Yeah, yeah, I know, but one disjointed irrelevant rambling deserves a like response.)

    nk (1d5cfe)

  18. If it was a justice, or done at the request of a justice, I expect Roberts to demand a resignation. He can’t force one, and there is no way any justice could be impeached and convicted, but I think that Roberts could make their tenure difficult.

    Kevin M (eeb9e9) — 5/12/2022 @ 10:44 am

    I seriously doubt this to be the case. If it was done at the behest or even insinuation of a justice, they’d deserve to be impeached, regardless of who it was, even it it’s not politically possible. This leak is unprecedented, and the other justices would never be able to trust that person again to keep confidence.

    I highly suspect it’s a clerk on a crusade, and the reason they did it is because they believe someone higher up the chain is going to fly top cover to keep their life from being ruined. They’re not only full of their own self-righteousness and entitlement, but they know that even if they’re disbarred, they’ll have a steady paycheck in one of Soros’s grifter NGOs once it shakes out.

    With that said, DSCSA has a point–the fact that they haven’t sniffed this person out (and it wouldn’t be hard, just use the same method that got Reality Winner tagged) shows that Roberts doesn’t have much of a handle on the court and its staff. Given the severity of the issue, he needed to be acting with a far greater sense of urgency than what he’s shown so far, and the longer this gets drawn out, the harder it becomes to find the leaker.

    That’s honestly why I think Patterico’s suggestion here ultimately is a non-starter. Something like that is a feature of a high-trust society, not one where one side in particular has a decades-long adherence to its own will to power, and with a religious-like belief that perpetual subversion of the existing order is a positive act. If this had actually happened 50 years ago when Roe was about to be decided, this would have been possible, but not today.

    Factory Working Orphan (2775f0)

  19. Will Col. Gail Curley be allowed to do her job?

    mg (8cbc69)

  20. Before testifying, Anita Hill taught at Oral Roberts and OU. After testifying she became a visiting scholar, and later a full professor at Brandeis.

    The Biden administration brought he fully into the embrace of the moneyed left:


    On December 16, 2017, the Commission on Sexual Harassment and Advancing Equality in the Workplace was formed, selecting Hill to lead its charge against sexual harassment in the entertainment industry. The new initiative was spearheaded by co-chair of the Nike Foundation Maria Eitel, venture capitalist Freada Kapor Klein, Lucasfilm President Kathleen Kennedy and talent attorney Nina Shaw.[58] The report found not only a saddening prevalence of continued bias but also stark differences in how varying demographics perceived discrimination and harassment.

    Kevin M (eeb9e9)

  21. @18. Don’t believe the SCOTUS could find their own car keys these days; the bureaucrats are ferried to and from work in government driven SUVs. 😉

    DCSCA (70bbf6)

  22. @12 On tv show run for your life ben gazzara said with reasonable people I will be reasonable and with unreasonable people I will be unreasonable. Our country was founded at lexington green and concord bridge. The declaration of independence was consummated at bayonet point at yorktown. The emancipation was enforced at bayonet point on cemetary ridge gettysberg pa. july 3 1863. race riots have been going on for a hundred years. The gay movement had its coming out party during the stonewall riots june 1969. The court of last resort is not the supreme court but the street. How many abortion doctors and workers have been murdered and clinics bombed by the side who now say the left should peacefully accept the decision by the court. “By any means necessary!” Malcolm X. Both left and the right resort to by any means necessary in the long history of this country. Read the book the social history of the machine gun. I prefer non violent methods if we can make them work ;but we fight to win.

    asset (576857)

  23. DCSCA (e8067b) — 5/12/2022 @ 10:32 am

    Who the hell is the office manager at that place?

    I think all nine justices – plus any retired justices who mi=aintain an office – manage their own offices. Only justices on the case are supposed to get preliminary opinions, I assume.

    I would suspect somebody at the printer. This draft opinion might have been sent to the printer or the equivalent.

    Another possibility is that some justice, or clerk, secretly and confdentially sent a copy to someone with a request for help in writing a dissent.

    Sammy Finkelman (b434ee)

  24. asset (576857) — 5/13/2022 @ 2:09 am

    On tv show run for your life ben gazzara said with reasonable people I will be reasonable and with unreasonable people I will be unreasonable.

    Cf Psalm 18 or II Ssmuel 22:26-27

    כו עִם-חָסִיד, תִּתְחַסָּד; {ס} עִם-גִּבּוֹר תָּמִים, תִּתַּמָּם. {ר} 26 With the merciful Thou dost show Thyself merciful, with the upright man Thou dost show Thyself upright,

    כז עִם-נָבָר, תִּתָּבָר; {ס} וְעִם-עִקֵּשׁ, תִּתַּפָּל. {ר} 27 With the pure Thou dost show Thyself pure; and with the crooked Thou dost show Thyself subtle

    Abortion is surely not worth it for you to propose throwing out the constitution and law, not to mention peace.

    You’re just trying to rationalize what other people seem to be proposing. It doesn’t work.

    Sammy Finkelman (b434ee)

  25. Again, to stop leaks prosecute the reporters and media organizations. Then leakers will have no where to go.

    Rip Murdock (acd58f)

  26. On SCOTUSblog Tom Goldstein suspects someone else:

    There has been some speculation that turns on a supposed relationship with Josh Gerstein, the Politico legal affairs reporter who is the lead author on their story. It seems to me that the leak very likely runs instead through the other reporter with a byline on the story: Alexander Ward, who is a national security reporter. In response to questions from The Washington Post, Politico confirmed that the story was very tightly held from even its own staff. Almost surely, the leaker would have insisted on that confidentiality. I cannot think of a reason that Ward would have been on the story other than that the leaker communicated through him, not Gerstein. And Politico would have felt compelled to give Ward a byline on such a historic scoop.

    Emphasis added.

    Rip Murdock (acd58f)

  27. Roberts may face roadblocks in probe of Roe leak, reporter who published it says

    Attorney General Merrick Garland is already on record saying it is “flatly wrong for the Justice Department to be involved in subpoenaing reporters directly or even coming after reporters for their phone records, email records or otherwise.”

    At the very least Republicans (when they take over Congress) should conduct an investigation and subpoena Politico management and reporters and have them testify under oath.

    Rip Murdock (acd58f)

  28. The more you read/listen to our ‘Dancing Alito’- the more the Catholic justice reveals himself to have quite the ego; an almost rigid originalist and not shy about chastising conservative colleagues opinions w/less time on the court who may waver from that POV and side w/more liberal and modern perspectives. He- his office- may very well be the source of the leak- out of a firm commitment to what he sees as the ‘right way’ to go- and out of basic pride of authorship. He’s might just be frustrated and tired of being ‘bigfooted’ by less tenured colleagues.

    DCSCA (565e11)

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