“Everything depends on it,” according to a source familiar with the court Interior said, “about how much authority the Chief Justice gives to the Marshal.”
When they gather in their ornate conference room on Thursday, seated in seniority order — or participate by phone if they’re out of town — the judges will be alone. No employees, no staff – only the nine will attend. You can discuss the next steps in the investigation.
Sources familiar with the court say such an investigation could be a tricky proposition if the leaker left no obvious leads and raises complicated questions about how far Curley can delve into the matter Function of each chamber.
If the marshal’s mandate includes an invasive look into each chamber’s electronic communications at a time when judges are still reeling from the leak and worried about the confidentiality of their internal deliberations, the probe could serve more to stoke tensions , than to calm the nerves and them task might prove daunting.
If the identity of the leak could be determined using these methods, it would be an easy investigation.
But it’s another matter altogether, this source said, to break into each chamber and get permission to search the computer drives of judges, their clerks and administrative assistants.
Another source – who doesn’t work at the court but is close to some judges – noted that investigators would need the judges’ consent to review communications in the chambers and this could raise questions.
“If you are a judge at the Court, what do you think of the Marshal – under the direction of the Chief Justice – receiving all your electronic data?” the source asked.
A difficult investigation looms
The judges are housed in one building, but they run their chambers like nine separate law firms, and there are sometimes tensions between the various staff, despite efforts to promote courtesy and collegiality on the bench. Additionally, attorneys are unlikely to sit down for potential interviews with a federal official without first hiring attorneys, a process that could delay the investigation.
The source also questioned whether Curley Police and the Supreme Court under their control would feel comfortable questioning the justices themselves if investigations reached this level, and suggested the court might consider hiring an external one Law firm, contractor, or attorney acting as a sort of special prosecutor. A last resort, the source said, would be to represent investigators from other branches of government, such as the US Marshals Service under the jurisdiction of the Justice Department. The court is unlikely to go down that route, however, as it takes separation of powers concerns seriously.
Two sources said the Marshal’s investigation could be hampered if the identity of the leak is not apparent – raising the question of whether the ultimate end of the investigation would be to ensure another such leak never happens again, rather than the to find a leak.
According to a former employee, the judges and their employees have access to two separate computer systems. Both require a secure connection from an employee, but the system used to compose opinions is an intranet service that does not allow access to the internet or external email. Work done on this system cannot be easily transferred.
The former employee said he was unaware of hidden watermarks used in draft statements. Most chambers have three to four employees and three administrative assistants. The systems are set up to work on laptops or iPads at home, but not iPhones. Each chamber has more than one printer, but sometimes the chambers share copiers. More than a decade ago, employees were not allowed to take laptops home, and each chamber had only one free-standing computer that could access the Internet.
To complicate matters further, the document in question has a bracket mark in a top corner, suggesting it was copied from an existing document and may not have revealing electronic fingerprints. In addition, according to the source and the former employee, a draft can be distributed either manually or via the computer. Some of the judges are still following protocols that predate the email.
If the draft opinion contains electronic fingerprints that the IT department can read, the case becomes less difficult. However, the source acknowledged that things get more complicated when invasive discovery of the chambers becomes necessary.
A breach of trust and tradition
Two former employees said employees are given manuals and briefed on safety before they begin their tenure.
In addition, the judges themselves have their own rules. Republican Senator Mike Lee of Utah, who worked for Justice Samuel Alito, appeared on Fox last week and said draft opinions “don’t get printed often.” He said that when a clerk is done with printed copies of draft opinions, “they don’t just toss them in the bin — they put them in a burn bag.”
“They take the burn bag and chop it up twice, vertically and horizontally — which creates confetti,” he said.
Another source added that the brown, red-striped brandy bags can be immediately placed in a cross-cut shredder in closets or in garbage cans for shredding in the basement. About once a month, an outside vendor picks up the papers in these bins with a truck for further shredding and disposal of the documents.
Ian Samuel, an employee of the late Judge Antonin Scalia in 2012-2013, told a blog called High School Scotus in 2018 how Scalia dealt with security issues.
“Nothing will ever beat Judge Scalia, probably the first day all four clerks started,” Samuel said.
According to Samuel, Scalia said, “Welcome aboard. I’m really lucky to have you. This is how I run chambers. It’s an open door – if you need to talk to me about anything, just come and talk to me.”
But, said Samuel, Scalia emphasized something else.
“If I ever find out that you have betrayed the secrets of what goes on in these chambers, I will do everything in my power to ruin your career,” Scalia said, according to Samuel.
“Then he just dropped that for a second and moved on to other issues,” added Samuel.
While there have been repeated leaks in the court, the draft opinion has set a new precedent.
“This is an institution unraveling before our eyes,” said a former employee, amazed at the boldness 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 Judge Brett Kavanaugh. The court wasted no time erecting barriers around the building last week, and Alito – who authored the draft – canceled an appearance before the US Fifth Circuit Court of Appeals and instead sent a short video. He apologized for not being there in person and said attending in person had “become impractical,” according to a lawyer present. In recent years, security around judges has been strengthened and Supreme Court police officers have played a more robust role.