The hunt for the source of the leaked draft ruling to overturn Roe v. Wade is intensifying inside the Supreme Court, where officials are “taking steps to require law clerks to provide cell phone records and sign affidavits,” CNN reported Tuesday.
This unprecedented move is reportedly rattling some law clerks, who are “apparently so alarmed,” notes CNN, that “they have begun exploring whether to hire outside counsel.” CNN adds that “the exact language of the affidavits or the intended scope of that cell phone search—content or time period covered—is not yet clear”; it’s also unclear whether court officials are asking employees within the nine chambers, other than the one-year law clerks, to turn over phone records.
The news is a dramatic development in the probe that Chief Justice John Roberts called for earlier this month, hours after Politico published a stunning leaked draft opinion indicating that the Supreme Court was poised to obliterate the constitutional right to an abortion.
Roberts’s demand that the high court’s marshal “launch an investigation into the source” of this “singular and egregious breach” raised questions from the get-go; the Supreme Court, with its decades-long resistance to transparency and accountability measures, seemingly lacks the tools to conduct such a probe. “It’s not clear [Roberts] has the right to order anybody to cooperate,” Politico’s Josh Gerstein, one of the two reporters who broke the story, told Yahoo News’s Skullduggery podcast a few weeks ago. Slate’s Mark Joseph Stern emphasized that lack of authority in response to the reported demands for phone data. “If any law enforcement official ever asks you to hand over your phone or phone records without a warrant, the answer is ‘no,’ then ‘talk to my lawyer.’ Supreme Court clerks know this better than most,” he tweeted Tuesday.
Stern, who earlier this month described the Supreme Court’s leak investigation “a sham,” reiterated his criticism in light of the latest reporting from CNN. What “makes this whole operation even more of a sick joke,” Stern tweeted, is that “the marshal isn’t demanding Ginni Thomas‘ phone records even though those records are being investigated by a congressional committee at this moment.”
Ginni Thomas, a right-wing activist and wife of sitting Supreme Court Justice Clarence Thomas, worked to try and overturn the 2020 presidential election. Reports of her efforts to reverse Trump’s loss have reignited debate about whether there should be clearer rules around justices recusing themselves from cases where they have a conflict of interest, as Justice Thomas arguably does with those related to attempts to overturn the 2020 election.
“Clarence Thomas was the only justice to vote to keep White House messages about January 6th secret, because he alone decides if he recuses from cases,” Citizens for Responsibility and Ethics in Washington, a nonprofit watchdog group, tweeted Tuesday morning, not long after CNN published the leak update. “That’s the ethics crisis at the Supreme Court.”