I’ve been giving more thought to the Clean Power Plan leak. I keep coming back to the fact that this set of documents is a decade old. Obviously, one or more people have been sitting on these seven memos for a decade. These records could have been given to the New York Times at any time over the past five years or so–around when the “shadow docket” panic began. Why now?
Moreover, whoever decided to keep these seven memoranda a decade ago likely did not anticipate how singularly important the Clean Power plan ruling would become. Hindsight is always 20/20. The more likely scenario is this person retained many documents. I can only imagine that more documents may be coming from this source.
I do not think that the person who retained these documents is an outlier. It is far more likely that many people at the Court have retained confidential documents over the years. These records may have long collected dust in file cabinets and banker boxes, but are now likely being dusted off.
The Justices impose strict rules on how their papers may be released after their deaths. But do the Justices even know whether copies exist outside the building? I think the answer has to be no. In the wake of Dobbs, Justice Thomas said that the Justices could no longer trust each other and their staff. This decade-long leak has further eroded whatever trust remained in the building.
Speaking of Dobbs, remember that the version Politico reported on had the indicia of a printed draft with staples and other markings. If people purloined draft memoranda in 2016, then it stands to reason that similar actions were taken for draft opinions in 2022. There may be an unspoken tradition.
The usual reason why clerks and others maintain confidentiality is that they are afraid their reputation may take a hit if a leak is traced back to them. As Justice Scalia would say, any clerk who leaks information would face the end of their career. But it isn’t clear that deterrent exists anymore. Whoever retained these documents a decade ago is probably far enough removed from the Court to no longer care about possible sanction from the Chief Justice’s feckless investigation. Moreover, all statutes of limitations have run. Plus, there is no chance a D.C. federal grand jury would actually indict here. The defendant would likely be given a medal. Remember, the movement is being led by people intent on showing that the Supreme Court is a failed and illegitimate institution that must be reformed from the outside. If they are outed, it may boost their career. Back in 1972, Deepthroat went to Woodward and Bernstein to protect his identity. But what if Mark Felt simply wrote his own book about Watergate?
We are not out of the woods yet. We are just getting started.
