Supreme Court officials are requiring law clerks to turn over cell phone data and sign affidavits as part of an intensifying investigation into who leaked the draft opinion last month revealing plans to overturn Roe v. Wade, three sources familiar with the situation told CNN on Tuesday.
Sources said the language of the affidavits and the scope of the cell phone search are uncertain. In response to the escalating investigation, several clerks have reportedly considered hiring independent counsel.
“That’s what similarly situated individuals would do in virtually any other government investigation,” said one appellate lawyer with knowledge of the investigation. “It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection.”
Chief Justice John Roberts met with the clerks in the immediate aftermath of the breach – it is unclear if any individual interviews have taken place, CNN reported.
In the leaked draft opinion, first published by Politico, Justice Samuel Alito wrote that “Roe was egregiously wrong from the start.”
“We hold that Roe and Casey must be overruled,” he continued. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Justice Clarence Thomas said the leak “bodes ill for a free society,” arguing that institutions can’t “give you only the outcome you want” nor can they “be bullied” to produce a certain outcome.
“The institution that I’m a part of — if someone said that one line of one opinion would be leaked by anyone, you would say, ‘Oh, that’s impossible. No one would ever do that,’” Thomas said, as reported by The Western Journal. “There’s such a belief in the rule of law, belief in the court, belief in what we’re doing, that that was verboten.”
“And look where we are, where now that trust or that belief is gone forever. And when you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally,” he continued. “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.”
“Anybody who would, for example, have an attitude to leak documents, that general attitude is your future on the bench,” Thomas added. “And you need to be concerned about that. And we never had that before. We actually trusted — we might have been a dysfunctional family, but we were a family.”