“Everything depends on it,” a source familiar with the court’s ruling inner workings said: “about how much authority the chief justice gives the marshal.”
When they meet on Thursday in their ornate conference room, seated in order of seniority — or participate by phone if they’re out of town — the judges will be alone. No clerks, no staff — only the nine will participate. They can discuss the next steps in the investigation.
Sources familiar with the court say such an investigation could be a delicate undertaking unless the leaker left clear marks, raising complicated questions about how far Curley can dig into the operation of each room.
If the Marshal’s mandate includes an invasive look at every chamber’s electronic communications at a time when judges are reeling from the leak and concerned about the confidentiality of their inner deliberations, the investigation could serve more to raise tensions than to calm the nerves and her job can be daunting.
If the leaker’s identity could be determined by those methods, it would be a simple investigation.
But it’s quite another – said this source – to dive into every room and get permission to search the computer stations of the judges, their clerks and administrative assistants.
Another source — who doesn’t work in court but is close to a number of judges — noted that investigators need the judges’ approval to review communications in chambers, and that could raise questions.
“If you’re a judge in court, how do you feel about the Marshal — headed by the Chief Justice — getting all your electronic records?” the source asked.
A difficult investigation looms
The judges are housed in one building, but they run their rooms as nine separate law firms, and there are sometimes tensions between the different staffs, despite efforts to promote courtesy and collegiality on the bench. In addition, attorneys are unlikely to attend potential interviews with a federal official without hiring attorneys first, a process that could delay the investigation.
The source also questioned whether Curley and the Supreme Court police under her control would feel comfortable interviewing the judges themselves if the investigation reached that level, suggesting the court might consider an outside law firm, contractor or to hire a lawyer as a sort of special prosecutor. A last resort, the source said, would be to replace investigators from other branches of the government, such as the US Marshals Service, under the jurisdiction of the Department of Justice. However, the court will not go down that road, because it takes the concerns about the separation of powers seriously.
Two sources said unless the leaker’s identity is clear, the Marshal’s investigation could be thwarted — raising the question of whether the investigation’s eventual end would be to ensure no such leak ever happens again, in instead of finding the leaker.
According to a former court clerk, the judges and their clerks have access to two separate computer systems. Both require an employee to connect securely, but the system used to compose opinions is an intranet service that does not allow access to the Internet or external emails. Work on that system cannot simply be transferred.
the former clerk said he was not aware of any hidden watermarks used in design advice. Most chambers have three to four clerks and three administrative assistants. The systems are set up to work on laptops or iPads at home, but not on iPhones. Each room has more than one printer, but sometimes rooms share copy machines. More than a decade ago, clerks weren’t allowed to take laptops home, and each room had only one freestanding computer with internet access.
To complicate matters, the document in question has a staple in the top corner, suggesting it was copied from an existing document and may not have electronic fingerprints. In addition, according to the source and the former clerk, a draft can be distributed manually or through the computer. Some judges still follow protocols older than email.
If the draft opinion has electronic fingerprints that the IT department can read, things get less complicated. But the source acknowledged that things get more complicated as invasive discovery in the chambers becomes necessary.
A violation of trust and tradition
Two former clerks said the clerks will receive manuals and be briefed on security issues before they begin their term of office.
Moreover, the judges themselves have their own rules. Republican Senator Mike Lee of Utah, who worked as a clerk for Justice Samuel Alito, appeared on Fox last week and said draft opinions “don’t get printed very often.” He said that when a clerk finishes printed copies of draft opinions, “they don’t just throw them in the trash — they put them in a fire bag.”
“They take the bag of burns and shred it twice, vertically and horizontally — creating confetti,” he said.
Another source added that the brown fire bags with red stripes can be immediately placed in a crosscut shredder in rooms or shredded in bins in the basement. About once a month, a third-party vendor hauls the papers into those bins by truck to further shred and dispose of the documents.
Ian Samuel, a clerk to the late Judge Antonin Scalia in 2012-2013, shared in 2018 on a blog called High School Scotus how Scalia dealt with security concerns.
“Nothing will ever beat Judge Scalia, probably on the first day all four clerks had started,” said Samuel.
According to Samuel, Scalia said, “Welcome aboard. I’m really happy to have you. This is how I manage rooms. It’s an open door — if you want to talk to me about something, just come talk to me.”
But, said Samuel, Scalia emphasized something else.
“If I ever find out that you’ve betrayed the confidentiality of what goes on in these rooms, I’ll do anything to ruin your career,” Scalia said, according to Samuel.
“Then he just let that hang for a while and moved on to other topics,” added Samuel.
While there have always been some leaks from the court, the draft opinion set a new precedent.
“This is an institution that is unraveling before our eyes,” said a former clerk, amazed at the brutality of the leak. “There have been leaks before, but this is a faucet.”
The leak also raises questions about the safety of the judges themselves.
Over the weekend, protesters demonstrated outside the homes of Roberts, Alito and Justice Brett Kavanaugh. The court wasted no time last week erecting barriers around the perimeter of the building, and Alito — who wrote the draft letter — canceled an appearance before the 5th U.S. Circuit Court of Appeals and sent a short video instead. He apologized for not attending in person and said personal attendance “became impractical,” according to a lawyer present. In recent years, security around the judges has been strengthened and Supreme Court police officers have played a more robust role.