The fact that no one has voluntarily confessed to the deed has doubtlessly fostered an environment of intense suspicion. Each of the clerks (typically graduates of the finest Ivy League law schools, as Biskupic notes) now face the potentially intrusive prospect of having their phone activity scrutinized.
Biskupic spoke to multiple lawyers with knowledge of the internal inquiry’s parameters, which inadvertently confirms that the court continues to leak like a sieve. Those lawyers report that the clerks are (sensibly) concerned about such intrusion into their personal lives, and are seeking legal counsel to determine how best to handle the issue.
“That’s what similarly situated individuals would do in virtually any other government investigation,” said one appellate lawyer with experience in investigations and knowledge of the new demands on law clerks. “It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection.”
The irony of the Supreme Court’s law clerks potentially litigating what are essentially privacy issues as a result of a leaked decision that itself overtly revokes the right to privacy is inescapable. The Supreme Court has already affirmed that warrantless smartphone searches violate the right to privacy (in fact, Roberts himself wrote that opinion, for a unanimous court). Any litigation about these issues will simply further highlight the fact that the government can’t intrude on your smartphone communications without a warrant based on “probable cause,” yet can intrude on and dictate one’s right to decide reproductive decisions.
As a practical matter, the process for such cases could conceivably take months, if not years, before the aggrieved clerks’ avenues of appeal were exhausted. The high court would almost certainly have to recuse itself from a case in which its own integrity was at issue. Meanwhile, the bare fact of who leaked the draft opinion would remain unknown to all but the culprit and the Politico team who broke the story, lost in the fog of appeals based on privacy concerns.
All in all, it sounds like a recipe for quite the hostile work environment at the Supreme Court.