The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I noted earlier that Justice Alito did not speak to the Fifth Circuit Judicial Conference. As a result, the conference organizers had to shuffle the schedule. We were treated to a presentation from an expert on cyber-security. She discussed at some length how the goal of foreign hacks is to sow discord in our polity. For example, cyber units would deliberately schedule protests for Black Lives Matter and Blue Lives Matter at the same time and in the same location. The goal was to foment division, and perhaps, create a violent confrontation. While watching this fascinating presentation, a thought jumped into my head: What if the Supreme Court leak came from a foreign hack?
Again, there is no strategic reason to leak the draft as a means to change votes. The Wall Street Journal already got the message out that the Chief Justice was trying to "turn" votes. (Josh Marshall at TPM credits my early speculation.) The leaked opinion did not augment the WSJ editorial. What would the conservatives gain from going beyond that leak, and giving the entire draft opinion to Politico?
And a liberal leak to shift votes makes no sense. A liberal leak, if anything, locks in the five members of the majority. The only theory that makes sense to me is that the leaker was trying to destroy the Supreme Court–the Flight 93 Leak, I suggested. It is possible a rogue liberal clerk decided to burn the Supreme Court down. On balance, I still cannot believe a Supreme Court clerk–no matter how woke–would try to destroy the Supreme Court. The Elect are an elite and selective club. They look out for each other. This leak has now transformed every clerk into a suspect. No one will trust each other. One First Street will soon resemble The Monsters Are Due On Maple Street. Self-immolation is not in the clerk handbook.
But there is another entity that may want to burn down the Supreme Court, and tear apart the American people: a foreign government. If that was the intent, the plan was successful. Look no further than the groups publishing the addresses of Supreme Court justices. Plus, as a benefit to foreign states, the torrent of news has taken Ukraine out of the headlines. Through this lens, the hack becomes much more plausible.
How would the hack occur? In the past, the Justices have suggested they use iPads and other devices. Is it entirely unreasonable to think that Justices, who are often working remotely, may have opened a draft opinion on the device? Sure. And we know from the DNC hack that clicking an errant link in an email is sufficient to install malware. Plus we also know that some of the Justices are not particularly tech-savvy. They can't even figure out the "mute" button during remote oral argument.
One piece of evidence provides some support for the hack theory. Josh Gerstein shared a byline with Alexander Ward. I had never heard of Ward before, and have never seen any of his reporting in the context of court. He is Politico's national security reporter. When I first noticed the byline, I wondered why Gerstein would share the byline with a national security reporter. From the outset of the story, I speculated that Ward may have received the leaked opinion. Tom Goldstein offered a similar thought: "I cannot think of a reason that Ward would have been on the story other than that the leaker communicated through him, not Gerstein." For these reasons, I was skeptical about the tweet threads suggesting various clerks may have leaked the document because of their past relationships with Gerstein. If Gerstein got the leak through his channels, Ward would not have shared a byline. But I do think that Gerstein may have received the information that there were still five votes for the majority. Also, another article notes that Gerstein interviewed Judge Owens about leaks "last week," so there was some gap in time.
If Ward did receive the document–in light of his expertise–it is reasonable to infer that it was transmitted through some very sophisticated electronic methods. Now, I am not suggesting that Ward received the document directly from some foreign state. I don't think any outlet would knowingly coordinate with a foreign state. Rather, it is possible that a foreign state hacked the document, transmitted it to some intermediary, and that document then made its way to Ward. For an analogy, the Steele Dossier comes to mind. Recall that there was a sustained effort to shop this document around to various outlets, but many journalists turned down the request because the document was largely unfounded. Unlike the Steele dossier, however, Politico fulfilled its obligation to make sure the document was authentic, which it was.
Again, I have no actual evidence to support this theory. At this point, every theory must be considered, and no theory can be ruled out.
If there is a possibility of a hack, then the Supreme Court Marshal cannot perform a thorough investigation. The Court lacks the technology to perform the requisite forensic analysis. Yet, the Court likely will not invite the FBI to investigate, as doing so would potentially breach the Separation of Powers. Moreover, if the FBI is invited, DOJ officials could be forced to testify before the Senate, and Senator Whitehouse. As a result, the Court will keep this investigation in house. And we all know what happens when insular institutions investigate themselves. I am not confident the Supreme Court is equipped to track down every lead.
Update: After writing this post, I came across an essay by Barbara McQuade, a former U.S. Attorney, on MSNBC:
Could the court's computer system or an employee's personal computer have been hacked, allowing an intruder to obtain a copy without any assistance at all from court personnel? Abortion is exactly the kind of hot-button issue that hostile foreign adversaries might use to stoke division within the United States.
McQuade and I will agree on very little, but we both stumbled onto the same possibility.