On May 2, Politico published a leaked preliminary Supreme Court “opinion” which indicated the Court’s intent to overturn the 1973 landmark Roe v. Wade decision. Daily Wire reports the leak has thrown the Court into turmoil and efforts to discover the culprit are intensifying.
Reportedly, the investigation into the leak, ordered by Chief Justice John Roberts, has forced law clerks working for SCOTUS justices to consider retaining legal counsel.
CNN reports that the intensified investigation now includes requests for law clerks’ cell phone records and signed affidavits.
The outlet noted that “Chief Justice John Roberts met with law clerks as a group after the breach, but it is not known whether any systematic individual interviews have occurred.”
Josh Blackman noted in a post in Reason that clerks likely have freedom under the law to disclose certain information (under certain circumstances).
“I think an attorney, in the course of representation, could decide to speak to the press to promote his client’s interests. But there is an open question: does the attorney-client privilege survive in light of a duty of confidentiality to the Court?”
Blackman clarified: “That is, could a clerk tell her attorney about some internal information in order to prepare a legal strategy? Could the Chief fire a clerk who confides in this lawyer?”
Justice Roberts appointed Supreme Court Marshal Colonel Gail Curley to lead the investigation regarding the leak.
An AP News report noted that Curley “in some ways [was] constrained in her investigation by her position, which was created just after the Civil War, in 1867.”
The AP report clarified: “Experts say leaking the draft opinion likely wasn’t a crime, and Curley’s investigative tools are limited. She could theoretically hire an outside law firm to assist, and in other judicial records cases the FBI has been called in. But it isn’t clear if she or others have the power to issue subpoenas to get material from journalists or the fewer than 100 people in the court — including justices — with access to a draft opinion.”
In early May, Chief Justice Roberts stated that the leak was “a singular and egregious breach of that trust that is an affront to the Court.”
In the draft opinion, Justice Samuel Alito wrote bluntly:
We hold that Roe and Casey (Planned Parenthood v. Casey) must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey chiefly rely — the Due Process Clause of the Fourteenth Amendment. …
…It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
Many experts expect SCOTUS to rule on the matter within weeks.
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