The Volokh Conspiracy

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Counting Up To A Supreme Court Leak

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Usually at the Supreme Court, the only number that matters is five. Or so Justice Brennan (allegedly) said. But with respect to the leak investigation, the magic number is 97. According to the Marshal's report, "97 personnel" were interviewed for a total of "126 formal interviews." Apparently, "many" personnel–no more than 29–were "interviewed more than once." How do we count up to 97? We can speculate.

The report identifies two categories of personnel: "temporary (law clerks) and permanent employees." I do not think the nine Justices would be included in the category of "permanent employees." Indeed, it does not seem likely that the Justices were even interviewed. (See update below)

In OT 2021, there were a total of 37 law clerks. Each of the nine active Justices had four clerks, plus Justice Kennedy had one clerk who was likely (though not confirmed) detailed to one of the chambers. (In recent years, the Kennedy clerk spent time in the Gorsuch and Kavanaugh chambers). These numbers would suggest that there were 60 permanent employees who were interviewed.

The report states that "in addition to the Justices, 82 employees had access to electronic or hard copies of the draft opinion." Again, if we assume there were 37 law clerks, then there were 45 permanent employees who had access to the opinion. But we know that 60 permanent employees were interviewed. So approximately 15 permanent employees, who did not have access to the opinion, were still interviewed by the clerk.

The report explains how the draft opinion was circulated:

On February 10, the draft opinion was sent via email to a distribution list consisting of law clerks and permanent personnel who work on opinions. The vote memos were also subsequently sent to this list.

Before diving into the numbers, I'll make a tech comment: email distribution list?! Does the Supreme Court not use a shared-drive with document access control? Email is quite possibly the most un-secure method of transmitting information. The Marshal found that "[t]he existing platform for case-related documents appears to be out of date and in need of an overhaul." Agreed. Back to the numbers.

There were 70 unique, active users on the distribution list.

If there were 37 law clerks on the list, then there were 33 permanent employees on the list. Earlier, we calculated that 45 permanent employees had access to the opinion. Who were the other 12 people with access to the opinion?

The Marshal accounted for two of those people, who received hard copies:

The draft majority opinion was also distributed in hard copy to some Chambers. The two Chambers personnel who were not on the email distribution list would have had access to the circulated hard copies and to any other copies that were printed in Chambers.

Who were these Chambers personnel who would have had access to the hard copies, but not the email copies? Perhaps a secretary, or judicial assistant? Why do some, but not all Chambers receive paper copies? I suspect some of the more tech-savvy chambers are paper free, and do not want any paper copies filing in and out of the office.

More than a month later, there were copies circulated to 8 more people:

On March 22, eight more permanent personnel received the draft opinion via email.

This total does not include any law clerks. Only permanent personnel. And the report does not indicate these were "Chambers personnel." Presumably, these were people outside the chambers. I'm not sure why a draft opinion, that was nearly a month old, would be circulated at this point to eight more people.

The report indicates two more permanent personnel accessed the opinion by "separate means" (unclear what those means were):

The investigators also found that two additional permanent personnel accessed the draft opinion electronically by separate means.

The report indicates that 80 personnel, total, had electronic access to the opinion:

In sum, the investigators determined that 80 personnel received or had access to electronic copies of the draft opinion.

And earlier, the report stated that 82 personnel had either electronic or hard copies.

The investigators determined that in addition to the Justices, 82 employees had access to electronic or hard copies of the draft opinion 

My numbers match the report:

  • 37 law clerks;
  • 33 permanent employees on the February distribution list;
  • 2 Chamber personnel who received hard copies;
  • 8 permanent employees who received the opinion in March;
  • 2 permanent employees who received the opinion by "separate means"

That's a total of 37 law clerks and 43 permanent employees, for a grand total of 82 personnel who had either electronic or hard copies.

Again, 97 people were interviewed. 15 of them who were not part of this batch of 82 personnel. We do not know who these 15 people were.

Update: The Marshal of the court released a statement. She "spoke with each of the Justices, several on multiple occasions."