STEVE INSKEEP, HOST:
This is the busiest time of year for the U.S. Supreme Court. The justices are releasing their most important cases here in the final weeks of the term. That's tradition. But nothing else about this term feels traditional after the leak of Justice Samuel Alito's draft opinion in an abortion case. NPR's Nina Totenberg has been asking, what's going on out of sight at the court as we wait? Hey there, Nina.
NINA TOTENBERG, BYLINE: Hi there, Steve.
INSKEEP: What are you learning?
TOTENBERG: It's pretty ugly. Between the leak investigation and the distrust among the justices and among the clerks themselves, the place sounds like it's imploding. And I'm going to give you one example. Justice Thomas, in a speech right after the leak, seemed to say that he no longer trusts his colleagues.
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CLARENCE THOMAS: When you lose that trust, especially in the institution that I'm in, it changes the institution fundamentally. You begin to look over your shoulder. It's like kind of an infidelity - that you can't explain it, but you can't undo it.
TOTENBERG: And he implied that he doesn't trust Chief Justice Roberts.
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THOMAS: The court that was together 11 year was a fabulous court. It was one you looked forward to being a part of.
TOTENBERG: Those 11 years were when Chief Justice William Rehnquist was chief, and he was succeeded in 2005 by Chief Justice Roberts. We don't know what the root of this antipathy is, but we do know that Roberts infuriated some of the court's conservatives 10 years ago - talk about carrying your grudge - when he changed his mind and voted to uphold key provisions of Obamacare. Those switches, Steve, they're pretty rare, but they do happen and in good faith. Sometimes a justice just changes his mind. But that switch so infuriated some of the court's conservatives that it leaked, obviously from the conservative side, to embarrass Roberts.
INSKEEP: So in that case, some justices' bad feelings leaked out. But now we have a leak of an actual draft opinion, which seems almost never to happen, on abortion, just about the most emotionally freighted, politically freighted topic you could imagine. And Roberts has ordered the court's own marshal to investigate who's responsible. That must have added to the bad feelings.
TOTENBERG: Well, it's a mess. So to begin with, the Supreme Court marshal oversees basically all of the security and administrative functions of the court, including overseeing the Supreme Court Police. But she has no experience as an investigator, nor do the Supreme Court Police. Their job, Steve, is to protect the justices and the building. And everybody I've talked to who does have experience as an investigator says that leak inquiries are just about the worst - in the words of several people, their nightmare.
INSKEEP: What makes them so?
TOTENBERG: Well, let me quote Glenn Fine, who conducted and supervised a lot of these investigations when he was the inspector general for the Justice Department and then the Defense Department over a decade in both Democratic and Republican administrations. Initially, he wrote, we would be told that only a few people had access to the material that had been leaked, only a few individuals were at key meetings or worked on a key document. But he said, invariably, when we probed, the universe of people who had access expanded exponentially. And even if there was some evidence of contact with a reporter, we were usually unable to prove that the contact led to the leak. Therefore, they ended up with zilch. Now, turning to this leak, CNN has reported that the court has taken steps to, one, ask the law clerks to sign sworn affidavits and, two, to essentially dump their cellphones.
INSKEEP: What does that do to a workplace, any workplace, if the boss is doing that?
TOTENBERG: Well, first of all, we don't even know what's in the affidavit. We don't know what they're actually doing. It's not clear that the clerks know. But as awful as leaking a document is, it's not a crime. Lying in an affidavit is a crime. So imagine if you swear under oath that you didn't do that and it turns out that your college classmate is a reporter at Politico and you had dinner with him in April prior to the leak, well, you could be in a heap of trouble, so...
INSKEEP: That's all hypothetical, we should mention, what you just said.
TOTENBERG: Yeah, yeah.
INSKEEP: Go on.
TOTENBERG: Total hypothetical. So indications are that some of the law clerks are lawyering up. Not to mention, Steve - talk about potential hypocrisy - if the court can dump information from your cellphone without a warrant, well, that directly contradicts the Supreme Court's own unanimous ruling six years ago when it said that police could not search a suspected gang member's phone without a warrant after he was pulled over in a traffic stop. Chief Justice Roberts wrote the court's opinion. Let's take a listen to what he said.
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JOHN ROBERTS: Allowing a warrantless search of all this information is not just an incidental intrusion, like a peek into a cigarette pack; it is a significant invasion of privacy going far beyond the arrest itself.
TOTENBERG: And allowing a warrantless search of that information from a cellphone is, he said, a violation of the Constitution.
INSKEEP: Just so I know, do Supreme Court rulings on the Constitution apply to the Supreme Court, or are they exempt somehow?
TOTENBERG: Last I checked, they apply.
INSKEEP: OK. All right, go on.
TOTENBERG: So it wouldn't surprise you to learn - and it didn't surprise me to learn - that there are terrified law clerks who've been calling law firms wondering if they need legal representation, all of which presents its own ethical problems since these law firms do have cases in front of the Supreme Court of the United States, and some justices may refuse to allow their staffs to participate, especially if they see this as a witch hunt.
INSKEEP: How is all of this affecting the day-to-day operations of the court itself?
TOTENBERG: You know, I talked to somebody very close to the justices, and he said he didn't know how on Earth the court was going to finish up its work this term. The clerks, he said, are sort of the court's - and this is really interesting - diplomatic corps. They talk to each other, especially at this time of year and with the approval of their bosses to find out how far can the envelope be pushed in this case or that one or, conversely, how can we soften language to get five justices to agree to this or that? But at the moment, clerks are terrified that their whole professional lives could be blown up, so they aren't able to do that in any meaningful way. So it's a very perilous time for the Supreme Court.
INSKEEP: Nina, it's always a pleasure to see you.
TOTENBERG: It's great to see you, Steve.
INSKEEP: NPR's Nina Totenberg.
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