I think it was Alito, too. My guess is that he wanted to present it as a fait acompli because the other conservatives were getting cold feet.
Well I’m pretty sure that this leak makes any conservative justice jumping ship impossible now, and makes even softening of Alito’s opinion unlikely.
That’s why I’m convinced the leaker is conservative.
Kavanaugh does care about his image. That’s why he absolutely can not allow the impression that this chain of events occurred:
- Kavanaugh on board with overturning Roe and Casey
- That info leaks
- Liberals get mad
- Kavanaugh softens his stance
And if it was a custodian? “You’ll never empty out wastebaskets and mop floors in this town again!” doesn’t sound like much of a threat.
“You’ll empty wastebaskets and mob floors in jail!” would be, however.
It goes back to who left it in a place a custodian could get it. Or who didn’t vet the custodian.
Lawyer-client confidentiality might apply to some aspects of a law clerk’s work. However, a judge isn’t the clerk’s client and the clerk isn’t the judge’s counsel, so leaking a draft of a judge’s opinion wouldn’t fall within lawyer-client privilege. That’s not to disagree with the rest of what you said, however.
As I said way up in this thread, there may be differences between US and Canadian law here. I would say that if you’re hired to provide advice to the judge, solicitor-client would apply. A clerk isn’t just a research drone. The judge asks them for advice as well. Doesn’t mean the judge follows it.
I believe in the context of the U.S. legal profession, “client” and “counsel” have much more narrow definitions. Otherwise, almost any employee of any employer could be subject to such a rule.
A “client” is someone who seeks legal advice regarding es own legal interests from a lawyer licensed to practice law. By definition, a judge ruling in a case isn’t seeking advice regarding es own legal interests.
A junior associate or clerk or legal assistant at a law firm who breaches confidentiality is breaching a duty owed not to the law firm, but rather to the law firm’s clients. A judge doesn’t have clients, either.
Right, any office staff, cleaning staff, maintenance, etc. There has to be a long list of people that have opportunity.
If someone takes a copy home for a legit reason – to read or edit – it’s exposed to spouses, kids, roommates, friends, neighbors, household staff, chauffeurs, etc. If they don’t follow control policy they might have multiple revisions piled on their desk and may not have noticed one missing.
If someone shares a copy with someone they trust – to show off, to help with fundraising, to make a point – it’s easy to imagine it ballooning. All it takes is someone in that chain that cares more about leaking than they do about the people in the chain.
Exactly. And often the people with the most authority follow the control policy the least.
Cf. Hillary Clinton.
A supreme court draft? I’ll steal it! NO ONE WILL EVER KNOW!
Anything is possible but I would think this is unlikely. They’d have to have read it to know there was something valuable there and it is 98 pages long. That or they have to be familiar enough with the title Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al. to know what was contained with in (unlikely). Given the amount of paperwork they are exposed to I doubt they are in the habit of reading any of it if they do not have to.
Fair enough. I agree that the timing certainly does not rule out the possibility that the leak was from the pro-choice side of the spectrum. However, it does still make it less likely in my opinion.
We may know more when the actual opinion comes out and we can see how it compares to Alito’s draft. If it is close then that is more evidence in favor of a leak from the pro-choice side; if it is more dramatically different (or there is a change in the voting lineup so it is not the majority opinion) then that is more evidence in favor of a leak from the anti-abortion side. (Of course, if it is significantly different…or there is a change in the voting lineup, I am sure that the Republican line is going to be how the poor justices were intimidated by the leak and subsequent uproar, especially given how well such victim-hood claims play right now with the Republican base; however, hopefully we can pretty much agree that these claims will almost certainly be bullshit.)
Roberts said the decision was not final yet.
It wasn’t necessarily a crime, though. Drafts of Supreme Court opinions aren’t classified material. There may be a crime in there somewhere, if someone hacked a computer or broke into an office, but I believe the general opinion is that it wasn’t illegal.
“Yesterday, a news organization published a copy of a draft opinion in a pending case. Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work. Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.” (https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_05-03-22)
(Technically, this was a statement of the Court, not attributed to Roberts specifically, although I imagine that he had a very strong hand in it. It was followed by a statement on the leak itself, i.e., it being a egregious breach of trust that will be investigated, that was expressly attributed to Roberts.)
It is about conduct detrimental to the profession, breach of trust, conduct detrimental to the administration of justice, and possibly involves dishonesty and criminal acts.*
It’s possible for clerks to be members of the bar in various jurisdictions, so I don’t know which rules might apply to that person, but some version of the model rule for “misconduct” likely exists in every jurisdiction.
Here’s some relevant text of the ABA Model Rule 8.4:
I think Justice Scalia’s warning was on top of the professional repercussions that would already happen.
As already mentioned, being a clerk to a Supreme Court Justice is a huge career stepping stone. Both because of the prestige, and because of the doors the Justice might be able to open for a clerk at the end of their service.
And I would very much believe that any Justice at least believes something similar, and that it would apply even if the clerk did something perceived as helping the justice’s own “side.”
Not only won’t you get help, but you’ll have someone actively opposed to you works ng in the profession at all. And for good reason.
*The material doesn’t have to be classified for it to be a crime. There may at least have been a form of theft involved, depending on the circumstances. I’m not saying they should be prosecuted, but it can factor in to professional discipline.
Agreed, this is why it seems unlikely that a clerk leaked it intentionally. They have already proven themselves by clerking for the lower courts. They are at the beginning of their careers where they can write their own ticket. Soon they will be making, what, 7 or 8 figures? Why would they throw that away by leaking something that they can’t even be sure will have a desired effect?
Plus it’s not like the Clerks are a bunch of green interns. There are a lot of familiar names on this list:
What profits a man who gains the world and loses his soul?
Why are Republicans more outraged about this than they are about January 6?