An investigation into how a Supreme Court draft opinion that indicates the justices could overturn Roe v. Wade this summer is heating up, with a focus on the court’s clerks.
According to anonymous sources cited by CNN, SCOTUS officials are “escalating their search for the source,” of the leak by taking steps to requesting clerks to provide cell phone records and sign affidavits. This move is “unprecedented,” said the outlet.
The Supreme Court did not respond to a CNN request for comment Monday about the phone searches and affidavits.
POLITICO published the draft leak of the Dobbs v. Jackson Women’s Health opinion, penned by Justice Samuel Alito, on May 2. In addition to overturning abortion protections established by the landmark 1970s Roe v. Wade decision, it would also negate the Planned Parenthood of Southeastern Pennsylvania v. Casey case from the 1990s if it becomes the final decision in the case.
A conservative majority of the court – including three justices appointed by former President Donald Trump – apparently supported Alito’s opinion. Multiple polls have found that Americans would prefer that Roe w. Wade not be overturned, however.
Chief Justice John Roberts announced May 3 that he had directed the Marshal of the Court – Colonel Gail A. Curley – to investigate who leaked the document. As of last Tuesday, the leak probe “fully in progress,” according to sources cited by POLITICO.
Since the leak, most theories regarding the potential leaker have addressed the Supreme Court law clerks, who complete tasks such as filtering requests, research and drafting opinions. Each justice can hire up to four clerks for a total of 36. Most are from prestigious schools with impressive academic records, according to CNN.
Other potential leakers could be the justices themselves or other Supreme Court staffers.
Traditionally, copies of draft opinions are sent electronically. They are also printed out and hand-delivered to chambers by aides to the marshal. Former law clerks cited by CNN said around 75 people would have access to draft opinions through a closed electronic system. Printed copies could potentially leave the Supreme Court building, as people take documents home to work on them.
“If a clerk was the leaker, it might not be surprising,” as justices have been selected more and more based on ideology over the past three decades, said The Washington Post.
Now, some current clerks have considered hiring private counsel in response to the sudden request for private data. In addition to the requests, Roberts also met with the law clerks as a group following the breach.
CNN said it was unclear as of Tuesday whether individual interviews have occurred.
An appellate lawyer with experience in investigations and knowledge of the new demands on law clerks quoted by CNN said it would make sense for the clerks to seek legal counsel in light of the new demands
“It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection,” the attorney said.
CNN said the probe has “intensified the already high tensions at the Supreme Court,” and in the midst of the leak, 54% of people who responded to a recent poll said they did not approve of how the court is handling its job.
So far, the court has not released any public reports regarding its investigation into the leak and CNN said “it is not clear whether any report from the probe will ever be released.”
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