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One group is at the center of speculation about who\u2019s behind the leak of an explosive draft Supreme Court opinion: the high court\u2019s clerks.<\/p>\n
The draft, published by Politico<\/a> Monday evening, would overturn abortion rights, bulldozing decades of precedent under the court\u2019s Roe v. Wade<\/em> decision, and mark a sharp conservative turn for the bench. The leak, which has been called unprecedented in modern history, has already sparked an investigation and calls for criminal prosecution.<\/p>\n Although it is not known who leaked the document, the court\u2019s clerks are likely to be considered suspects because they\u2019re among the few people with access to draft opinions. But they also have more to lose professionally than just about anybody in the building.<\/p>\n \u201cThis would be career suicide,\u201d said Carolyn Shapiro, a former clerk for Justice Stephen Breyer and a professor at the Chicago-Kent College of Law.<\/p>\n Supreme Court clerkships are highly competitive, and usually go to the top students from a select handful of law schools. Clerks are among the most sought-after new lawyers, commanding as much as $700,000 in salaries and bonuses when they join major firms. They often go on to prominent roles in Big Law, academia and in the judiciary.<\/p>\n \u201cIt\u2019s the pinnacle of prestige,\u201d said Dan Binstock, a recruiter for large law firms in Washington.<\/p>\n If a clerk winds up being behind the leak, that prestige and the opportunities that come with it are likely to go up in smoke.<\/p>\n \u201cHaving the experience at that level generally suggests you have many options ahead of you in the legal profession,\u201d said Travis Lenkner, who clerked for Justice Anthony Kennedy, and noted it\u2019s unclear if a clerk was behind the leak, \u201cbut an offense of this nature, in my view, should end your membership in that profession or prevent it from beginning.\u201d<\/p>\n The Supreme Court has long been shrouded in secrecy, with its inner workings largely outside of the public eye. It\u2019s a key part of the court\u2019s effort to maintain an aura of impartiality, on which new clerks are schooled early in their first terms.<\/p>\n \u201cEven above legal ability, as a job requirement, would be discretion and trust,\u201d said Lenkner, who also clerked for Justice Brett Kavanaugh while Kavanaugh was on a federal appeals court in Washington. \u201cIt is a position that every clerk takes incredibly seriously, and the justices place extreme trust in their law clerks.\u201d<\/p>\n Chief Justice John Roberts on Tuesday confirmed that the draft opinion\u2014written by Justice Samuel Alito in a case over a Mississippi abortion law\u2014is authentic, though it did not represent a final position of any member on the case. He said the Marshal of the Court would launch an investigation into the source of the leak.<\/p>\n \u201cThis was a singular and egregious breach of trust that is an affront to the community of public servants who work here,\u201d Roberts said.<\/p>\n Court watchers cite former Justice Antonin Scalia\u2019s words of warning to his clerks as an example of how important confidentiality is as part of the job. <\/p>\n \u201cIf I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career,\u201d Scalia told clerks, Ian Samuel, a former Indiana University law school faculty member, said<\/a> in a 2018 interview.<\/p>\n Shapiro said Chief Justice William Rehnquist spoke to her class of clerks at the beginning of the term about the need to maintain confidentiality. Clerks were instructed to put draft court opinions in \u201cburn bags\u201d so they could be destroyed, Shapiro said.<\/p>\n \u201cClerks have a lot of loyalty to the institution. They have concerns for their own careers, but they also have a lot of loyalty to their own justices,\u201d Shapiro said. \u201cAnd to the extent doing something like this would embarrass your own justice, that would be an enormous deterrent as well.\u201d<\/p>\n Some former clerks have suggested that a justice is more likely to have leaked the opinion, given the risk involved.<\/p>\n \u201cI would not be at all surprised if it turns out the leaker was themselves a justice or was instructed or encouraged to leak by a justice,\u201d Shapiro said.<\/p>\n\u2018Community of Servants\u2019 <\/h2>\n
Discretion and Trust<\/h2>\n