The Volokh Conspiracy

We are now one month removed from Politico's bombshell report. We still have no idea who leaked the opinion. No one has come forward to collect their plaudits from MSNBC. Whoever did the deed is keeping quiet--at least until the end of the term. And the investigation continues. For the longest time, the marshal of the Supreme Court was the subject of many Trump-related conspiracy-theories. But now, the marshal is exercising real authority. Joan Biskupic has an exclusive:

Supreme Court officials are escalating their search for the source of the leaked draft opinion that would overturn Roe v. Wade, taking steps to require law clerks to provide cell phone records and sign affidavits, three sources with knowledge of the efforts have told CNN.

Some clerks are apparently so alarmed over the moves, particularly the sudden requests for private cell data, that they have begun exploring whether to hire outside counsel. . . . Chief Justice John Roberts met with law clerks as a group after the breach, CNN has learned, but it is not known whether any systematic individual interviews have occurred.

….

"That's what similarly situated individuals would do in virtually any other government investigation," said one appellate lawyer with experience in investigations and knowledge of the new demands on law clerks. "It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection."

Sources familiar with efforts underway say the exact language of the affidavits or the intended scope of that cell phone search -- content or time period covered -- is not yet clear.

Here are my tentative thoughts.

First, on sourcing, Joan cites "three sources with knowledge of the efforts." These are not sources "close to the Court," or some such language. Joan's sources could be clerks, or the Justices, but I think it more likely that the sources are the type of people she quotes from: "appellate lawyer with experience in investigations and knowledge of the new demands on law clerks."

Second, I am usually very critical of leaks, but I'll admit, this sort of leak does not trouble me as much as leaks about internal deliberations. Yes, even law clerks are entitled to competent representation of counsel--especially in the face of an investigation that could lead to severe sanctions. And I think an attorney, in the course of representation, could decide to speak to the press to promote his client's interests. But there is an open question: does the attorney-client privilege survive in light of a duty of confidentiality to the Court? That is, could a clerk tell her attorney about some internal information in order to prepare a legal strategy? Could the Chief fire a clerk who confides in this lawyer? The fact that the appellate lawyer quoted is even aware of this matter suggests, at a minimum, that clerks are seeking counsel and talking.

Third, the Supreme Court marshal office has, as far as I know, zero background in performing forensic analysis of phone records. Unless experts from DOJ are detailed, I am skeptical the Supreme Court has the competency to perform these tasks internally. Moreover, the idea of pulling "phone records" is so quaint. Anyone serious about leaking the document would use secure and encrypted channels like Signal, Telegram, or something more secure. Do we really think the law clerks are sliding into Josh Gerstein's Instagram DMs? More likely the leaker used sophisticated channels with Politico's national security reporter, Alexander Ward.

Fourth, the climate inside the Court must resemble a prison. There are massive security barriers around the building, and I understand Second Street--where the garage entrance to the Court is located--has been shut down. Now, every clerk must submit their private records to the marshal. Is there any expectation of privacy? Or protocol to prevent disclosure? And will the marshal start to contact the people that law clerks called? I imagine some Justices may resist this intrusion into their clerk's confidential information.

Fifth, law clerks are being asked to sign affidavits for an explicit purpose: if they lie, they face charges of making false statements to a government official. And, in theory, they can be criminally prosecuted. But what happens if a clerk is not at fault? Joan explains that as many as 75 people may have had access to the opinion:

If tradition was followed, copies were sent electronically and, separately, printed out and hand-delivered to chambers by aides to the marshal. Other employees connected to the nine chambers would have had some access to the opinion. CNN could not verify that number, but former law clerks say the document could have been sent through regular channels to nearly 75 people. It is not known if court officials are asking employees who are part of the permanent staff, beyond the one-year law clerks, for their phone records.

Ultimately, three-dozen law clerks--the cream of the crop--are being put through the wringer for an act that may not have been taken by a clerk. These are the sort of people who have never been sent to the principal's office, or faced anything but praise. This entire experience must be so jarring. To this day, I still do not think a clerk is at fault.

Sixth, Joan does not know if the five-member block survives:

But it is difficult for anyone outside the building to know whether the Alito draft still commands a majority on a court tightly divided on abortion rights and split over how quickly to reverse precedent.

There are no opinions this week. It ain't over till it's over.

Most people have at least some family and friends with whom they disagree about religion, politics, and other neuralgic topics. We maintain relationships with these people because some commonality encourages us to look past our disagreements with them--because we have some basis for trusting them and their good will towards us, notwithstanding our differences. We may even engage now and then with these friends and family in a reasonably civil way (though, if surveys are correct, more and more Americans drop friends and family members because of politics, mostly liberals dropping conservatives, apparently, rather than the other way around).

It would be silly to expect the level of trust we have for friends and family to extend to society at large. Yet, social trust has a very important role in public discourse. It allows us to engage our fellow citizens without expecting the worst of them, without thinking they are out to get us--in short, without personalizing debate in a way that makes everyone defensive and angry.

In a review of Jacob Mchangama's new book, Free Speech, at the Law & Liberty site today, I argue that this social trust has frayed greatly, and that Americans' problems with free speech result more from social breakdown than from a failed commitment to abstract ideas about expression. Here's an excerpt:

It is a striking feature of American life in the first quarter of the 21st century that we have somehow created a culture in which everyone feels aggrieved. This is especially true when it comes to free speech. Both conservatives and progressives believe their opponents are out to silence them—not just beat them in debates and prevail against them in elections, but intimidate them, put them on mute permanently, eliminate any possibility of resistance. Many on each side see the other as not simply wrong, but ill-motivated and dangerous, an existential threat to be defeated before it is too late.

This state of affairs is more the norm in American history than we care to admit. Perhaps because we see ourselves in providential terms—"the last best hope of earth," as Lincoln said—Americans always have been sensitive to threats our democracy faces and often have worried about enemies within spreading "disinformation." Eras of Good Feeling occur relatively rarely. Even so, the level of recrimination just now seems quite high, and many Americans apparently believe we must silence our opponents before they succeed in silencing us.

In Free Speech: A History from Socrates to Social Media, Jacob Mchangama maintains that a renewed commitment to free expression can help us through these perfervid times. Mchangama, a lawyer and the founder of Justitia, a human-rights organization in Denmark, has written a programmatic history that "connect[s] past speech controversies with the most pressing contemporary ones." Today's debates about free expression recapitulate those of long ago, he believes, and just as our ancestors did, we must defend the right to speak against those who would take it away.

To write a comprehensive history like this one is an ambitious undertaking, and Free Speech is a mixed success. Mchangama writes engagingly and has done his research. The chapters on the Internet and social media are especially good. But even at 500 pages, a history that spans thousands of years and many civilizations is bound to be a bit superficial at times. Moreover, as he himself recognizes, tolerance for others' speech depends as much on culture as it does on law—and in today's polarized, distrustful America, we are less and less likely to give our opponents the benefit of the doubt and let them have their say even if the law permits it.

You can read the whole essay here.

But quite a compelling article in The Atlantic (Robinson Meyer & Ashley Fetters), with the subtitle "A favorite anecdote about the origins of the vibrator is probably a myth." An excerpt:

It's among the most delectably scandalous stories in the history of medicine: At the height of the Victorian era, doctors regularly treated their female patients by stimulating them to orgasm. This mass treatment—a cure for the now-defunct medical condition of "hysteria"—was made possible by a new technology: the vibrator. Vibrators allowed physicians to massage women's clitorises quickly and efficiently, without exhausting their hands and wrists.

It's a disturbing insight, implying that vibrators succeeded not because they advanced female pleasure, but because they saved labor for male physicians. And in the past few years, it has careened around popular culture. It's given rise to a Tony-nominated play, a rom-com starring Maggie Gyllenhaal, and even a line of branded vibrators. Samantha Bee did a skit about it in March. A seemingly endless march of quirky news stories has instructed readers in its surprising but true quality, including in Vice, Mother Jones, and Psychology Today.

In short, the tale has become a commonplace one in how people think about Victorian sex. And according to a contentious new paper, it may also be almost totally false.

There is absolutely no evidence that Victorian doctors used vibrators to stimulate orgasm in women as a medical technique, asserts the paper, written by two historians at Georgia Tech. "Manual massage of female genitals," they write, "was never a routine medical treatment for hysteria."

"There's no evidence for it," says Hallie Lieberman, an author of both the new paper and Buzz, a popular history of sex toys. "It's inaccurate."

Replying to my recent post, Orin Kerr writes:

But I read Dave as also saying that criticizing the NRA for its positions and influence in gun control debates is somehow equal to the belief that it's okay to murder groups of people for their religious beliefs. If that's what Dave is saying, that claim strikes me as so completely preposterous and outrageous that there's some benefit in saying so publicly.

How Orin "read" my post, which he did not quote, strikes me as preposterous.

For the record, I debated a NRA representative at an event hosted by the Mountain States Legal Foundation. I advocated for Red Flag laws that have proper due process, whereas the NRA representative opposed them. I support of my view, I have testified before U.S.  the U.S. Senate Judiciary Committee on March 26, 2019, and before the Judiciary Committee's Subcommittee on the Constitution on April 28, 2022. So no, I don't think that disagreeing with the NRA is the same as murdering Jews.

In my view, as stated in the post, it is always and every evil to falsely accuse people of being murderers, and it is always and everywhere evil to libel people based on twisted theories of guilt by imagined association.

Outside the NRA Annual Meeting at the Houston Convention, while some of the protesters held up signs reasonably expressing their views on gun policy, some others screamed in hatred at people entering or leaving the convention building, calling people "murderer" or yelling that an elderly man in a wheelchair was a "piece of shit." I don't retract my strong criticism of the latter sort of conduct. Over the course of human history, there have been many different ways that people have wallowed in anti-rational group hatred. In my view, the details always change but the most basic source of such evil behavior remains the same.

I realize the old days of extended debates among Volokh bloggers have long passed. Still, I can't help but chime in to say that David's recent post leaves me speechless.  Dave and I agree that the NRA has every right to meet, and that protesters have every right to protest. But I read Dave as also saying that criticizing the NRA for its positions and influence in gun control debates is somehow equal to the belief that it's okay to murder groups of people for their religious beliefs. If that's what Dave is saying, that claim strikes me as so completely preposterous and outrageous that there's some benefit in saying so publicly.