How the Supreme Court could crack down after leak investigation
The Supreme Court’s investigation into the extraordinary leak of a draft opinion has left the justices grappling with how to prevent future breaches.
The source of the draft abortion decision leak may never be known, but investigators in an extensive probe identified security gaps in how sensitive documents circulate among dozens of the high court’s employees.
The court’s justices — six conservatives and three liberals — must now decide whether to act on the recommendations of their investigators, including curtailing document access, considering support of legislation regarding leaks and updating technology.
An unsigned court statement accompanying the Supreme Court marshal’s report argued it remains “essential that we deliberate with one another candidly and in confidence,” calling the leak a “grave assault on the judicial process.”
Here’s what investigators recommended to the justices:
Curtailing access to documents
Many of the recommendations would scrutinize who receives access to draft opinions.
The marshal suggested too many people have access to sensitive materials after the investigation revealed 82 employees possessed the draft Dobbs opinion when Politico published it.
University of Richmond Williams Chair in Law Carl Tobias said he doesn’t think the justices will restrict document flow to an extent that would impair the court’s work.
“I don’t think [Chief Justice John] Roberts will allow it, and neither will the justices,” he said. “I think they will go forward with some tightened security, and there may be fewer people with access.”
The investigation additionally revealed that multiple employees told their spouses about the draft opinion, which violates law clerks’ code of conduct. The marshal recommended creating a universal policy for handling draft opinions and increased employee training.
“Several personnel told investigators they had shared confidential details about their work more generally with their spouses and some indicated they thought it permissible to provide such information to their spouses,” the report states.
The marshal’s recommendations also include considering support of legislation to expressly prohibit unauthorized disclosures.
A group of 12 House Republicans in the days following the abortion opinion leak introduced a bill that would bar Supreme Court employees and officers from knowingly disclosing confidential information, although the legislation would need to be reintroduced in the new Congress for consideration.
Stephen Vladeck, a law professor at the University of Texas at Austin, said previous justices have recommended reforms related to the court, but the practice has become increasingly unusual in recent years.
“There’s no broader tradition of treating all closely held government information as a criminal offense if leaked, and I think that’s a good thing,” Vladeck said.
The marshal also suggested various technological improvements so the court can enhance security and better track when employees view, share and destroy sensitive documents.
Many printers, including some in justices’ chambers, weren’t connected to the court’s networks and couldn’t be tracked, according to the report. Others didn’t have sufficient tracking capabilities.
Legal observers acknowledged that many specifics of the court’s response will likely remain private, stressing that tradition gives justices some autonomy in running their own chambers.
“The insular attitude reflected in the report is, I think, a symptom of a broader disease,” Vladeck said.
The scrutiny comes as justices reject growing perceptions that the court is fundamentally partisan.
“I think it’s going to ruffle some feathers and probably lead to perhaps some acrimony,” Jared Carter, an assistant professor at Vermont Law and Graduate School, said of the fallout. “But I think that’s small potatoes when you look at the broader implications of the public losing faith in the court.”
The court is preparing to hand down the first opinion of this year’s term on Monday, and it will mark the slowest-ever release of the court’s first opinion, according to Empirical SCOTUS author Adam Feldman.
Some court observers acknowledged that increased security may be playing a role, while others noted a high number of emergency applications and divisive cases could be contributors.
“It’s late, and some are attributing that to the fact that there is a lack of trust or cooperation or collegiality,” said Tobias, the University of Richmond professor.