Just Politics

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Justices will meet for the first time since publication of draft opinion on Roe shook the foundations of the court

By Ariane de Vogue, CNN Supreme Court Reporter

Updated 8:30 AM ET, Thu May 12, 2022

https://www.cnn.com/2022/05/12/politics/supreme-court-meeting-after-draft-opinion/index.html
(CNN)The Supreme Court is set to meet behind closed doors on Thursday for the first time since the astonishing leak of a draft opinion that would overturn Roe v. Wade.

The justices plan to discuss pending petitions and outstanding cases -- but they're also likely to grapple with the aftermath of that remarkable breach of the court's confidential operations. While the draft opinion calling for the reversal of a near-50-year-old landmark precedent stunned the country, the leak itself stunned the court.
Chief Justice John Roberts quickly ordered the marshal of the court -- Col. Gail A. Curley -- to begin an internal investigation, but sources familiar with how the court operates say the inquiry could lead to uncomfortable privacy issues, trigger further tension and erode trust as the justices work furiously to resolve cases concerning some of the most important social issues of the day regarding abortion, gun rights, religious liberty and the environment. Curley serves as the court's chief security officer and manages the Supreme Court Police Force.
"Everything depends," one source familiar with the court's inner workings said, "on how much authority the chief justice gives the marshal."
An insular institution -- one that prides itself on its independence -- must now move forward at a fraught time to finish its work, while also attempting to stanch a leak. If the court sticks to its current calendar, all remaining cases -- including abortion -- should be decided by early July, a heady, self-imposed deadline. Under normal circumstances, final draft majority opinions are usually circulated internally by June 1, to give dissenters plenty of time to respond.
When they gather Thursday in their ornate conference room, sitting in order of seniority -- or participating by phone if they are out of town -- the justices will be alone. No clerks, no staff -- only the nine will participate. They may discuss next steps in the investigation.
Sources familiar with the court say that unless the leaker has left obvious traces, such an inquiry could be a delicate enterprise, raising complicated questions about how far Curley can delve into the workings of each chamber.
If the marshal's mandate includes an invasive look into the electronic communications of each chamber at a time when the justices are still reeling from the leak and worried about the confidentiality of their inner deliberations, the investigation could serve more to raise tensions than calm nerves and her task could prove daunting.

According to one of the sources familiar with the court, it would be one thing for Curley to direct computer forensic tests to trace how the draft opinion was distributed. That could be done in house, as the court has a strong IT department. Interviewing court personnel outside of specific chambers would also be doable. There are, after all, people in the building who work in building support, the cafeteria staff, the architect of the Capitol, nurses -- all employees who theoretically would not have access to the opinion drafting process.
If the identity of the leaker could be determined under those methods, it would be a straightforward investigation.
But it's another thing entirely -- this source said -- to delve into each chamber, getting permission to search the computer drives of the justices, their clerks and administrative assistants.
Another source -- who does not work in the court but who is close to some of the justices -- noted that investigators would need the consent of the justices to review communications in chambers, and that could raise questions.
"If you are a justice on the court, how do you feel about the marshal -- under the direction of the chief justice -- getting all of your electronic data?" the source asked.