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The Marble Palace Blog: The Alito Leak and the SCOTUS Ethics of Privacy

Thank you for reading The Marble Palace blog, which I hope will inform and surprise you about the Supreme Court of the United States. My name is Tony Mauro. I’ve covered the Supreme Court since 1979 and for ALM since 2000. I semi-retired in 2019, but I’m still fascinated by the high court. I will be happy to receive advice or suggestions for topics to write. You can reach me at [email protected]

When brand-new Supreme Court clerks begin their terms, one of the first things they do is sit down and hear a lecture from the Chief Justice or other officials, stressing that confidentiality is paramount. .

A former clerk today recalled that the late Chief Justice William Rehnquist told rookie clerks that when it came to talking to reporters, ‘it’s all up to zero’. The late Chief Justice Warren Burger reportedly told clerks they would be fired if seen talking to a reporter for more than 30 seconds.

Clerks also receive a pamphlet entitled “Code of Conduct for Clerks of the Supreme Court of the United States”. A 1989 edition of the Code of Conduct outlined in depth how the relationship between the justice and the clerk should operate. (I got the Fair and Square Code of Conduct from the Blackmun newspapers after his death. Not sure if it has been updated.)

“The law clerk plays an important role in the judicial process and must strive to maintain the integrity of this system,” the pamphlet states. “Because of the close association between the judge and the clerk, the actions of the clerk, both professional and personal, reflect on justice, on the court and, ultimately, on the entire judiciary. The Clerk is therefore held to the highest standards of conduct.

In addition, the code states that “the relationship between the justice and the clerk is essentially confidential. … The clerk must take particular care that court documents not available to the public are not removed from the courthouse or handled in such a way as to compromise their confidentiality within the chambers or the courthouse generally. The position of clerk requires discretion.

All of this context suggests how remarkable, even unbelievable, it is for someone to hand a 98-page draft opinion on abortion rights to Politico or any other media outlet. The ethic of confidentiality is an integral part of the culture of the Supreme Court.

Former clerks, speaking on condition of anonymity, are stunned by the news. One said no clerk would do such a thing ‘unless he was planning on getting into the law’. In the filing, Carolyn Shapiro, law professor and co-director of the Chicago-Kent College of Law Institute at the Supreme Court, said: “The leak of a comprehensive draft opinion is unprecedented. This is an extreme violation of the standards of the institution. Shapiro is a former clerk to Judge Stephen Breyer.

Unprecedented, yes, although something close happened nearly a century ago. This is the forgotten story of clerk Ashton Embry, who resigned in 1919 and was indicted in 1920 for using inside knowledge of an upcoming opinion to profit from Wall Street. Embry worked for Judge Joseph McKenna.

Embry’s story may be a prelude to what could happen if an employee were to leak Alito’s opinion. At this time, it’s unclear if a clerk or someone else leaked the draft. Today Chief Justice John Roberts released a statement that he has ‘directed the Marshal of the Court to initiate an investigation into the source of the leak’.

Roberts also said, “Court employees have an exemplary and important tradition of respecting the confidentiality of the court process and maintaining the confidence of the court. This was a singular and egregious breach of that trust which is an affront to the court and to the community of public servants who work here.

Embry’s episode made headlines in Washington, D.C. at the time, but does not appear at all in McKenna’s biographies, court books from that era, or even in the memoirs of the late Dean. Acheson, who served as court clerk the same year. and later became Secretary of State.

But in 2001, John Owens, himself a former clerk, published an article on Embry. Owens was an attorney with O’Melveny Myers and the Department of Justice and is now a judge on the United States Court of Appeals for the Ninth Circuit.

“I was consumed by it,” Owens said at the time. “I couldn’t believe no one had written about this.” Owens’ landmark pursuit led him to old investigative files and reports, including a memorandum from a young Federal Bureau of Investigation agent named J. Edgar Hoover.

On December 16, 1919, the Washington newspapers reported that a leak from inside the court about the result of United States vs. Southern Pacific Railroad helped a group of Wall Street speculators. Later that day, Embry, who had been McKenna’s clerk for nearly nine years, resigned to devote himself to a baking business he ran while a clerk.

The DOJ convened a grand jury and opened an investigation. Ultimately, Embry and his co-conspirators were indicted for depriving the United States of the “right and privilege” to have Supreme Court decisions rendered in accordance with its customs. But in 1921, the court dismissed Embry’s appeal against the indictment without comment.

Embry barely skipped a beat in his baking career. He prospered, eventually running a chain of seven bakeries in the DC area until his retirement in 1950. Prior to Embry’s death in 1965, he requested that his ashes be scattered on the grounds of the Supreme Court. His son Lloyd, a renowned portrait painter, responded to the request “under cover of darkness”.

While researching the article, Owens reflected on his own internship for Justice Ruth Bader Ginsburg and his father, Jack, for the late Justice Lewis Powell. It would be nearly impossible for a modern-day Supreme Court clerk to do what Embry did, Owens said at the time.

“At the Supreme Court there is now a code of conduct for clerks, and the chief will speak to us about the importance of confidentiality,” Owens said in 2001. “It’s also clear for printers, librarians, who can see a review before it is published.

More relevant laws and precedents are also in place, including one that declares the United States’ right to “honest government service.” Owens then added. “I wouldn’t want to be the coroner testing this law.”