A former clerk for the late Supreme Court Justice Ruth Bader Ginsburg, who also served as special counsel to Joe Biden as the then-senator considered Supreme Court nominations, said the leak of a draft opinion imperils the institution’s reputation.
Neil Siegel, who also advised Biden’s fellow Delaware Democrat Sen. Christopher Coons during the recent nominations of Ketanji Brown Jackson, Amy Coney Barrett and Brett Kavanaugh, said the leak broke ironclad traditions of secrecy.
“I’m extraordinarily concerned about what this does for the capacity of the court to function, and what it does to its legitimacy,” Siegel, now a professor of law and political science at Duke University, told The Daily Wire.
Throughout its history, those working in the Supreme Court are “on your honor. You keep everything confidential and secret and no one else gets it,” he said. Now, “we’re living in different times.”
Though Siegel said he disagrees with the strident draft opinion penned by Justice Samuel Alito overturning Roe vs. Wade, the institutional damage to the court of a leak could be long-lived, he said.
If it was leaked by a clerk — a prestigious job occupied by elite young lawyers — their career could be over.
“I doubt they’re ever going to be a member of the Supreme Court bar,” he said. “The career professional consequences in terms of who would hire them and what type of position of trust would they occupy, the reputational harm could be quite significant.”
Yet, Siegel said he doubts the act of leaking broke federal law.
The pool of possible suspects appears to be small: the nine justices have four clerks each. Typically, there is one clerk assigned to each case, but for a case like this, it would not be surprising if all four clerks saw it. Then there are secretaries, but Siegel said “it’s much less likely that they would leak it.”
Ilya Shapiro, a Supreme Court expert and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court, told The Daily Wire that “certainly if it’s a lawyer or would-be lawyer, it’s subject to discipline by the bar. There’s a duty of confidentiality, it’s exceedingly egregious to violate your employer or client’s confidentiality. There are catch-all phrases like unprofessional conduct.”
“You can’t undersell how unprecedented and unusual this is. Having a draft opinion, that’s not just tipping off a reporter two days before an opinion comes down,” he said.
The leak was first published by Politico.
“We hold that Roe and Casey must be overruled,” Alito wrote in the draft opinion. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”