According to a CNN report, the court’s leak investigators are “taking steps to require law clerks to provide cell phone records and sign affidavits.” Some clerks are apparently understandably so alarmed over the moves, particularly the sudden requests for private cell data, that they have begun exploring whether to hire outside counsel.”
That answer should be yes. Clerks should absolutely hire counsel to advise them about their rights and recourse if they refuse to provide the requested information. And while the court is not, so far as we know, conducting a criminal investigation, the demand that clerks sign a statement under penalty of perjury can put them at risk if they are anything less than 100 percent truthful.
While the court is entitled to “examine any government-owned cell phones or e-mail accounts,” prominent whistleblower attorney Mark S. Zaid tells me, “there would be no legal right (absent a warrant) that would … compel a clerk to turn over any personally owned information.” Zaid recommends that “as many clerks and staff as possible decline as a group to turn over their personal data,” to create “safety in numbers.”
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Leah Litman, University of Michigan law professor and co-host of the Strict Scrutiny podcast, finds the court’s conduct outrageous. “It’s insanity. Say no,” she tells the clerks. “Get a lawyer; try to talk to your justice about how insane it is for the federal government to say to an employee, ‘Hand over your personal phone so we can investigate these leaks,’ when some of the justices themselves are going on record, with the press, to speak about the inner workings of the court.”
This unprecedented, unseemly dragnet suggests that the justices have no idea how much danger their crumbling reputations are in. (Their arrogance and overt partisanship already have become the best argument possible for term limits for justices.) If the justices need such heavy-handed tactics and cannot rely on the word of their clerks, the Supreme Court has become just another DC workplace roiled in political finger-pointing and blame-casting. Yes, the scandal of the leak undermined the credibility of the court, but a ham-fisted attempt to rectify it will only make things worse.
Recall that weeks ago, Justice Clarence Thomas—husband of “big lie” adherent Virginia “Ginni” Thomas—groused that the leak would hurt the court internally. He lamented that when you lose trust, “especially in the institution that I’m in, it changes the institution fundamentally. … You begin to look over your shoulder. It’s like kind of an infidelity, that you can explain it, but you can’t undo it.” Now, add this mistreatment of clerks to the list of infidelities at the court.
The list is long: the “infidelity” of refusing to adopt a strict code of ethics and to refuse oneself from cases implicating a spouse’s conduct. Also, the “infidelity” of deliberately misleading senators during one’s Supreme Court confirmation process by insisting, apparently with fingers crossed behind one’s back, that Roe v. wade was settled law. The court’s loss of trust is far bigger than the leak, and it points to a body that is less an august, independent judicial institution than a partisan operation trying to game the law and deflect blame.
By the way, if the chief justice is truly interested in ferreting out the truth, rather than cast aspersions on young lawyers and imperil their entire careers along the way, he should demand that the justices turn over cellphones and sign affidavits, too. It’s fair … unless, of course, this invasion of privacy is just too offensive for the justices to contemplate.