Former Supreme Court law clerks said this week’s publication of a draft opinion to overturn Roe v. Wade was a disturbing breach of court tradition that could change how the justices do their jobs.
The extraordinary leak, unprecedented in the modern era, came as a particular shock to those who have experienced firsthand how the court and its staff operate behind closed doors.
Brian Fitzpatrick, a professor at Vanderbilt Law School who clerked for Justice Antonin Scalia in 2001 and 2002, said that when he heard Politico had gotten hold of the internal document, “I thought it probably wasn’t true,” adding that it seemed “inconceivable” to him.
“When I found it was true, I thought we turned a very sad corner,” Fitzpatrick said. “I’m worried this could happen again and again and is a sign of the times.”
It’s not known who leaked the document — Chief Justice John Roberts ordered an investigation Tuesday. Fitzpatrick said he believes it’s “most likely” that the culprit was a clerk who leaked it for ideological reasons.
“I see it every day — young people at elite schools are very radicalized,” and “I think they embrace the ‘by any means necessary’ thinking that people did not embrace previously,” Fitzpatrick said.
Carolyn Shapiro, a professor at Chicago-Kent College of Law who clerked for Justice Stephen Breyer, said she “was very surprised by the leak.”
Like Fitzpatrick, Shapiro indicated that she thought a clerk was behind the unauthorized disclosure to the media, saying it was a “violation” of the court’s code of conduct for clerks.
“There was and still is an extremely strong norm of confidentiality,” she said.
Supreme Court clerkships are highly prestigious, and they can lead to high-paying jobs at top-tier law firms. Only 36 people are chosen for the yearlong positions, most of them Ivy League law graduates who finished at the top of their class and have completed clerkships for federal judges.
Shapiro recalled that soon after she started at the court, then-Chief Justice William Rehnquist gathered the clerks to stress the importance of keeping the court’s business private.
“We weren’t supposed to put paper in the garbage,” Shapiro said, adding that they were instructed to use “burn bags” to dispose of draft opinions.
In a statement Tuesday, the Supreme Court acknowledged that the draft opinion published Monday night was authentic but said “it does not represent a decision by the Court or the final position of any member on the issues in the case.”
Sen. Ted Cruz, R-Texas, a former clerk for Rehnquist, on Tuesday called the leak “the most egregious breach of trust at the Supreme Court that has ever happened.”
“Presumably some left-wing law clerk angry at the direction the court is going decided to betray his or her obligation, the trust that clerk owed to his or her justice and to the court,” Cruz told reporters.
Asked why he thought the leaker was a liberal, Cruz said: “Because I’m not a moron. Because I live on planet Earth.”
In a tweet thread Tuesday, Amy Kapczynski, a Yale Law School professor who clerked for Breyer and the former Justice Sandra Day O’Connor, said she initially “assumed a liberal clerk leaked the draft opinion overturning Roe.”
“Now I think MUCH more likely it was leaked by a conservative fanatically committed to every word of Alito’s monstrous opinion,” she said.
She noted that Alito appeared to have the support of four other justices at the time he wrote the draft opinion in February, and she said that about now would be when other justices would be writing their concurrences and dissents.
“I think best bet is that Chief Justice Roberts circulated one recently, adopting a more moderate position,” and the leaker was hoping to stop any of the conservative justices from joining Roberts’ opinion.
Shapiro said: “My hypothesis is it came from somebody on the right as a strategic move, but it’s pure speculation. Whoever is saying, ‘It’s a liberal,’ ‘It’s a conservative’ — nobody knows, and we may never find out.”
Fitzpatrick, of Vanderbilt University, said he assumed it was the work of “a liberal clerk” who was trying to use public pressure to sway the conservative justices, but he acknowledged that theories that a clerk on the right leaked the document were “plausible.”
Shapiro and Fitzpatrick said the bombshell leak could lead to distrust among justices and clerks, who often do substantial amounts of research and writing for their bosses.
“I could imagine some operational changes in how drafts in highly controversial cases circulate,” Shapiro said.
That could slow the deliberative process, she said, because “the internal work of the court really does depend on people being able to read and discuss the drafts fairly openly.”
Fitzpatrick pointed to the Supreme Court fight over the 2000 presidential election in saying there is precedent for justices to play their cards close to the vest.
“There were times during Bush v. Gore the justices communicated just among themselves, without the communication they shared with the law clerks. I could see a world like that repeating itself,” he said.
But “it’s hard for the justices to just shut off the law clerks,” he added. “They rely on them to do a lot of the work.”
CORRECTION: (May 5, 2022, 2:47 p.m.) A previous version of this article made an incorrect reference to Sandra Day O’Connor. The former justice turned 92 in March; she is not “the late justice.”