- Chief Justice John Roberts has ordered an internal investigation into the leak of a draft opinion.
- Roberts has long warned Supreme Court clerks and staff not to divulge details of deliberations.
- Legal experts were struck not just by the implications of the draft opinion but the leak itself.
At the beginning of a Supreme Court term, Chief Justice John Roberts is known to sprinkle an admonition into an otherwise warm welcome to the latest class of generally young, frequently Ivy League-educated clerks.
Leak information about the high court's inner workings, he warns, and prepare to face career consequences. His message, recounted to Insider by past clerks and others familiar with the Supreme Court, is meant to underscore the need to prevent any leak that could spur insider trading or breach the customary confidentiality around the justices' deliberations.
Now, Roberts' nightmare scenario is playing out in perhaps the most consequential Supreme Court case in decades.
Late Monday, Politico published a draft 98-page opinion in which a majority of the Supreme Court justices appeared poised to overturn Roe v. Wade, the landmark 1973 decision that has guaranteed the federal right to an abortion for nearly a half-century.
According to Politico, Justice Samuel Alito wrote in the draft opinion that "Roe was egregiously wrong from the start" and that it must be "overruled" along with Planned Parenthood v. Casey, a 1992 decision that reaffirmed Roe and established that states cannot impose an "undue burden" on abortion rights.
If the decision holds, it would have seismic consequences for the future of abortion rights in the US. But legal experts were also stunned by the leak itself, with one calling it "highly disturbing" and an almost unprecedented breach of Supreme Court protocol.
Politico described the source of the draft opinion as a person familiar with the legal challenge to Roe v. Wade, leaving unclear whether it was a clerk, a justice, or anyone affiliated with the Supreme Court. And so the leak immediately gave rise to a game of whodunit among conservatives and the right-wing media, many of whom suggested the source of the draft had violated the law. But experts said it was difficult to identify any criminal violation.
On Tuesday, the chief justice joined in on the effort to investigate the source of the leak. Calling it a "betrayal of the confidences of the court," Roberts ordered the marshal of the Supreme Court to launch an investigation into the matter. In doing so, Roberts has essentially ordered an administrative inquiry akin to an internal investigation at a company, legal experts said.
"The fact that the marshal is doing it suggests they are treating it like an ethical and employment issue," said David Lat, the author of the Original Jurisdiction newsletter and a close Supreme Court observer.
Roberts' introduction to the Supreme Court came at a point when concerns about leaks were reaching a fever pitch. In 1979, a year before he began clerking for the late Justice William Rehnquist, journalists Bob Woodward and Scott Armstrong published "The Brethren: Inside the Supreme Court," a "behind the scenes" account of Warren Burger's early years as chief justice.
The book reportedly infuriated justices by detailing the deliberations that led to some of the Supreme Court's most controversial decisions in the 1970s.
At the high court, justices, clerks, and staff view the confidentiality of deliberations as key to preserving open lines of argument and collaboration in reviewing cases. That culture "facilitates a kind of lawyerly work and dialogue that is hugely productive," a former clerk told Insider. But it isn't possible if people are "looking over their shoulders," they added.
As chief justice, Roberts is the face of the Supreme Court, and "it is viewed as his job to protect the integrity of the court as an institution," Lat said. "And this leak strikes a blow right to the heart of that."
But Roberts is not alone in cautioning against leaks. The late Justice Antonin Scalia, for instance, also warned new clerks on their first day about leaking.
"If 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," Scalia would say, according to a former clerk.
In 2012, Roberts himself became the subject of a rare report on the Supreme Court's internal deliberations. CBS reported in July of that year that he had initially sided with the court's four conservative justices to strike down then-President Barack Obama's signature health care law, the Affordable Care Act, but later changed his position and voted with the four Democrat-appointed justices.
But that leak paled in comparison to the release of an entire draft opinion, former clerks and others familiar with the Supreme Court told Insider.
"The court can't operate if that happens. This is a major, major leak," a former Supreme Court clerk told Insider. "It's hard to imagine a bigger leak."
In his statement Tuesday, Roberts said the Supreme Court's work would "not be affected" by the leak. Roberts called it a "singular and egregious breach of the trust that is an affront to the court and the community of public servants who work here."
For some, the mere fact that the Supreme Court issued a statement reflected how seriously it is taking the leak. Oftentimes, Lat said, the court prefers to "just keep plugging ahead and pretend unfortunate things did not happen."
"I think this situation right now," he added, "is Chief Justice Roberts' worst nightmare."