Washington Wednesday: Security and ethics at the Supreme Court

NICK EICHER, HOST: It’s Wednesday, the first of February, 2023. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Washington Wednesday.

U.S. Supreme Court Marshal Gail Curley led an eight-month investigation into the leak of the draft Dobbs opinion. She didn’t turn up the culprit.

EICHER: Marshal Curley’s report did uncover plenty of problems with the security protocols of the high court—unsecured printers, no formal documents policy, and misunderstood ethical standards.

Joining us to talk about it is Alexander Volokh, a law professor and former Supreme Court clerk. He now teaches at Emory University School of Law.

REICHARD: Professor Volokh, thank you for joining us today.

ALEXANDER VOLOKH, GUEST: Thanks very much.

REICHARD: Well, as clerk for both Justices Sandra Day O’Connor and Samuel Alito back in the day, you know the procedures. Tell us what typically happens when a draft opinion is ready to circulate among the justices… who prints it off, and where does it go?

VOLOKH: Yeah, so my clerking experience was from the 2005-2006 term. So that was a while ago. But I wouldn't be surprised if things are still pretty similar now, or at least, were pretty similar until just before the leak. Basically, there are some ways in which the Supreme Court takes security very seriously and other ways that things were wide open, and basically just policed by people's honor. So, for example, they were very concerned about being connected to the internet. Because if you're connected to the internet, presumably someone could hack in. So there were two separate systems. And if you wanted to check your email, you were on the internet connected system. But if you wanted to deal with internal court documents, you're on the non-internet connected system. And if there was any reason why you wanted to transfer, you had to put it on a thumb drive and move it from one system to another system. So in that sense, there was security against outsiders trying to hack in, much in the same way that there was security about people coming into the building. The security was pretty stringent to come into the building, and even to walk the halls if you didn't have a badge or were accompanied by someone with a badge. So those are some obvious things that they did and maybe had done for a long time. On the other hand, once an opinion is circulated through the internal email system, then anybody could basically print it out if they were a justice or if they were a law clerk. And when people were working on their opinions, they could print out their successive drafts. And once something was printed out, then there was nothing to prevent anyone from walking it out of the building and giving it to somebody. And even if there were, there would be nothing to prevent, in the future, somebody from taking a photograph with their cell phone and sending it to somebody. There are all sorts of potential security measures that were never taken and it's actually difficult to imagine what kind of security measures would really be effective against someone who was bent on getting a document out to the outside world. This is the same sort of thing that has been going on a long time within Congress, within the executive branch, and the only thing that's made it hold as long as it has is that the federal judiciary is smaller, and is more closely knit, and maybe has had historically a greater sense, a greater internalized sense of its own ethics code. But when it came to something like the Dobbs opinion, which was definitely one of the most significant opinions of this generation, and something which had obvious political ramifications for the presidential election and every other election, that was something where it was easy to see how someone's internalized ethical sense would not be enough and it only takes one person out of everyone who had access for that sort of thing to break down.

REICHARD: And what’s your impression of how Marshal Curley conducted this investigation?

VOLOKH: Well, I have to say I don't have any experience in how to conduct investigations. And so I don't personally have any view of how it should have been done. But based on what I've seen and read since then, I can say a few things. Number one is as a matter of the bottom line, I think it's totally unsurprising that the marshal did not find who did this. Because like I've said, this is something that was very easy to do, and very difficult to detect, and very easy for someone to deny. So unless someone confessed, or someone else who knew turned in the other person, then it's hard to see how this would have been found. That said, people have raised what seem to me plausible objections to how it was done. For example, if you're going to do an investigation, you shouldn't have internal people do the internal investigation, because they might be in a position where they have to be investigating their own bosses. And that's a conflict of interest. And they might treat their own bosses with kid gloves. This is the sort of thing where maybe it would have been better to bring in an outside firm. They had Michael Chertoff, who was a former judge and also former Secretary of Homeland Security, wrote a letter where he said he thought the investigation was well done. And so you can ask well, why not bring in Chertoff for him to have done the investigation in the first place? There also seem to be some cases where the investigators really treated people very rigorously and other cases where they didn't. For example, many people had to sign a statement under oath that said that they didn't participate. And once you sign a statement under oath, then it's found that you've done it, not only do you have all the original penalties, but also you have extra penalties for lying under oath. They didn't demand that of the justices themselves. And even though they knew that some employees had talked to their spouses about the case, and sometimes they may have been under the impression that it was okay to talk to your spouse, that that was a kind of exception to confidentiality, but they didn't talk to spouses, they didn't talk to justices' spouses. And so some people have pointed to some loopholes in the investigation. But that said, even if the investigation had been done in a way that was in every way perfect, it's hard for me to see how they would have found who did it unless someone confessed, or someone turned someone in.

REICHARD: Let’s talk about what ifs. What if the leaker is still roaming around the Supreme Court? What’ll that mean for the court trying to work in this environment?

VOLOKH: I'm sure the leaker still is there. Or rather, the leaker might have been a clerk, in which case since clerks only work for one year, then that clerk has been gone since the summer. But it could be that the leaker was one of the justices and, of course, justices are around for the long term. Could be that the leaker was a secretary or a chamber's aide, or there are a number of people who would have had access to the document. But I think the more important thing is not the specific identity of the leaker and what if that person is there, just like in the executive branch, we know that there have been a lot of leaks. The question is not what's the effect of that leaker being there? But what's the effect of having a culture where you know that anyone in the future might be a future leaker? There's a reason for this kind of confidentiality, which is that justices should feel comfortable signing on to initial documents that eventually get changed, or that their clerks write an initial draft, which might go through successive revisions before it even becomes the view of the justice. And if that process of writing were put under scrutiny, then everyone on the outside would ask, well, who wrote this word? Why did this paragraph change? What kind of pressure was put on this person to change their view. It would mean that people would just be a lot less honest about their initial views, and they would put a lot fewer things down on paper. And that's the sort of concern that is present for confidentiality in a presidential administration. It's present in attorney-client privilege discussions. It's present when you talk about why you should have confidentiality in the legislative branch. Anytime you undermine confidentiality, you undermine people's sense that it's okay to speak your mind and play around with ideas before you finally commit yourself to a final product. And I think that's just a kind of systemic concern that people would be looking over their shoulder afraid that something that they say or write could make it into the Washington Post.

REICHARD: If caught, are there any legal penalties for violating that confidentiality? Whether intentional or through negligence.

VOLOKH: Well, yes, I think most of the laws involved were not written with this thing in mind. But I think that there are certain laws about confidentiality that could come into play. And then in addition, if the person was one of those who was made to sign the statement under oath, then in addition, that means they violated the statement under oath. And then there are extra fraud penalties for violating that.

REICHARD: Alexander Volokh teaches at Emory University School of Law. Professor, thank you so much!

VOLOKH: Thank you very much.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.