Supreme Court leak investigation heats up as court clerks asked to hand over cell phone data

The investigation into the leaked draft opinion on the Dobbs v Jackson Women’s Health Organization case that showed the court may be poised to overturn Roe v Wade in May has some SCOTUS law clerks seeking their own independent counsel as they are now being asked to provide personal cell phone data and sign affidavits in relation to the probe.

Legal experts say the law clerks are in a precarious position after the request for their information and cooperation because if they hesitate to comply or seek their own counsel before complying, they may be viewed as suspicious or compromise their careers.

“The clerks are probably the most vulnerable workers who had access to that information in the building, because their career could be dramatically affected by how they chose to respond,” said UC Berkeley Law professor Catherine Fisk. 

Some say the clerks should face consequences should they choose not to cooperate with the investigation. Harvard law professor and former SCOTUS law clerk Lawrence Tribe who worked for Justice Potter Stewart told CNN, “I think it would be entirely appropriate for any law clerk who lawyers up and tells the chief justice or the Marshal of the Court, ‘No, I won’t let you see my cell phone records. They’re too intimate and too private,’ will need to take the consequence.”

“And I think those consequences should include losing their job and losing the CV value, the resume value that job would otherwise have going forward,” Tribe said.

Others say it would be against the values of SCOTUS to prevent its employees from seeking their own legal counsel. “That’s what similarly situated individuals would do in virtually any other government investigation,” said one appellate lawyer. “It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection.”