Supreme Court abortion opinion: How could it leak?

On Balance with Leland Vittert

CHICAGO (NewsNation) — A pair of former Supreme Court clerks say the surprise is not that a sensitive document could be leaked from the nation’s highest judicial authority — it’s that somebody would actually do it.

Now that Chief Justice John Roberts confirmed the authenticity of a leaked draft opinion suggesting the U.S. Supreme Court is poised to overturn Roe v. Wade, there is a bipartisan push to find the leaker.

“I can’t imagine that happening when I was there,” Radhika Rao, a former clerk for Supreme Court Justice Harry Blackmun, said Tuesday as a guest of “On Balance with Leland Vittert.” “No one, at the time, could have imagined something like this happening.”

Ian Samuel remembers a message the late Justice Antonin Scalia gave while he clerked for him.

“It was: ‘if you ever betray the confidences of these chambers, I will do everything in my power to ruin your career,'” Samuel said. “And he let it hang there for a moment and you can tell and he moved on, and he didn’t have to say it twice,” he continued.

But Samuel and Rao say the court operates openly among justices and their clerks. The opportunity is there to leak information. Reverence for the institution demands you do not.

After hearing oral arguments in a typical case, the justices go back to a conference room where they take an initial vote. Afterward, one is appointed to write a draft opinion.

That opinion, just like the one Justice Samuel Alito wrote in the case of Dobbs v. Jackson Women’s Health Organization, is distributed among the justices and clerks.

“They could have a draft and they could walk out of the building with it,” Rao said. “Or if they have access to a file, perhaps they could even have it on their laptop and have access to it that way.”

There are risks to the leaker if it was done digitally. Samuel points out an employee’s computer activities might be traceable. Rao added friends and family of Supreme Court workers could also be behind the leak.

Each political wing has speculated the other is responsible. A left-leaning clerk might be upset at the court’s decision and hope to build pressure on the justices to change their mind. On the flip side, a right-leaning person could be worried a justice on the fence could join the liberal minority before the vote is finalized.

Whether it’s a crime may depend on the leaker. If they work at the Supreme Court and have access to the document as part of their job, they could potentially face a misuse of federal property charge, but it would not be a slam dunk case.

If the leaker hacked into a government network to obtain it, the charges could be more severe.

Work to identify how the leak happened is underway. Roberts called for an investigation, which will be lead by the Supreme Court mashal, Col. Gail A. Curley.

“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. “The work of the Court will not be affected in any way.”

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