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Fair Courts Update: SCOTUS Requests Clerk Cell Phone Records for Dobbs Leak Investigation

This Fair Courts Update covers a historic case backlog in the Supreme Court and the launch of a new law clerk advocacy organization.

Last Updated: June 10, 2022
Published: July 7, 2022

Supreme Court Invest­ig­ates Leak, Asks Law Clerks to Hand Over Cell Phone Records

One day after a draft major­ity opin­ion in Dobbs v. Jack­son Women’s Health Organ­iz­a­tion that would over­turn Roe v. Wade was published by Politico, Chief Justice John Roberts called for an internal invest­ig­a­tion of the leak, saying the release of the draft opin­ion was inten­ded to “under­mine the integ­rity of our oper­a­tions.”

On June 1, CNN repor­ted that Supreme Court offi­cials are requir­ing law clerks to turn over their private cell phone records and sign affi­davits, devel­op­ments that led some clerks to consider hiring outside coun­sel. Although much of the spec­u­la­tion around the source of the leak has been focused on the justices’ law clerks, former clerks told CNN that if usual proced­ures were followed, the draft opin­ion would have been distrib­uted to up to 75 people before it was leaked.

The leaked opin­ion has also promp­ted calls for legis­la­tion and law enforce­ment action from Congres­sional Repub­lic­ans. Rep. Mike John­son (R-LA), along with 11 House Repub­lic­ans, intro­duced a bill that would make it a federal crime to share “confid­en­tial” inform­a­tion from the Supreme Court, includ­ing draft opin­ions. Senate minor­ity leader Mitch McCon­nell (R-KY) also called on the Depart­ment of Justice to “pursue crim­inal charges [against the source of the leak] if applic­able.”

As Supreme Court Term Approaches End, Justices Issue Decisions at Unusu­ally Slow Pace

The U.S. Supreme Court’s current term is expec­ted to end within a month, yet the Court has not yet issued opin­ions in 29 cases that were argued this term. This is the biggest back­log of unan­nounced merits opin­ions in percent­age terms since 1950, accord­ing to Adam Feld­man of empir­ic­alscotus.com.

Many of the argued cases still await­ing decisions involve high-profile issues, such as abor­tion, guns, immig­ra­tion, climate change regu­la­tion, and reli­gion in public schools, and some court watch­ers, includ­ing Univer­sity of Michigan law professor Leah Litman, have posited that the delay is a result of internal strife within the Court.

Steve Vladeck, a law professor at Univer­sity of Texas School of Law, wrote in MSNBC that the delay could also be due in part to the Court’s increas­ing use of the shadow docket. Vladeck also noted that, in the past three years, the Court has issued fewer than 60 signed decisions, and the last time it had issued so few decisions was in 1864, during the Civil War.

Launch of Legal Account­ab­il­ity Project, Clerk Advocacy Organ­iz­a­tion

On May 31, Aliza Shatz­man and Matthew Good­man launched the Legal Account­ab­il­ity Project, a nonprofit with a goal “to ensure that as many law clerks as possible have posit­ive clerk­ship exper­i­ences, while extend­ing support and resources to those who do not.”

Accord­ing to its website, the new organ­iz­a­tion will create a national, cent­ral­ized data­base for former law clerks to report their exper­i­ences, whether posit­ive or negat­ive. It will also conduct a work­place culture assess­ment survey of law clerks and part­ner with law schools to conduct “program­ming related to harass­ment in the judi­ciary.” Ulti­mately, the organ­iz­a­tion plans to share its find­ings with the public, the Amer­ican Bar Asso­ci­ation, and with lawmakers.

The organ­iz­a­tion’s found­ing follows several reports of harass­ment and hostile work envir­on­ments from former law clerks, includ­ing co-founder Shatz­man, who submit­ted writ­ten testi­mony about her exper­i­ence to the House Judi­ciary Commit­tee as part of a March 2022 hear­ing.