Inside the Supreme Court Inquiry: Seized Phones, Affidavits and Distrust

The chief had assigned the investigation to Ms. Curley, the marshal, whose best-known task was crying “Oyez, oyez, oyez!” as justices entered the courtroom. She was a respected former Army lawyer, but her division had little of the investigative muscle of other government agencies, no subpoena power and a staff only partly devoted to security. Others on her team dealt with court administrative tasks like staffing events and handling mail.

Credit…U.S. Army, via Associated Press

But Chief Justice Roberts was a staunch defender of the court’s independence, reluctant to let outsiders interfere. “The Judiciary’s power to manage its internal affairs,” he had written months before, “insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government.”

As interviews of clerks began, a dilemma emerged. No one wanted to seem uncooperative, as if they had something to hide. The court’s written code of conduct states that the justices “expect and require complete loyalty from their own law clerks and the clerks of all other Justices.” Rifts between a clerk and his or her justice could have immediate and lasting implications, according to interviews with those who have held the one-year positions as well as advisers to last year’s class. The job rested on intimacy with justices, the ability to channel the bosses’ voices and views in drafting opinions.

The advantages accrued in one year at the court can compound for decades. For those who move on to law firms, the signing bonuses can be as high as $450,000, according to several lawyers at firms that recruit and hire them. The justices have powerful alumni networks that include reunions. A justice’s endorsement can be decisive for a federal judgeship or a law professor post. Many clerks join appellate firms, where, after a mandatory short break from court business, they spend the rest of their careers being paid handsomely to read and influence the justices’ minds.

But the marshal’s search was broad. The interview questions, and the affidavits the clerks were asked to sign, were sweeping, and lying to federal investigators was a crime. Investigators collected the clerks’ court-issued electronic devices and requested their personal ones. The group feared what one person called “spillage” — outed details, like stray comments about justices or cases, that had nothing to do with the leak but could prove damaging.

The request to hand over personal cellphones caused some to seek legal counsel. It is unclear the degree to which clerks agreed to share the physical devices. But the report said that employees “voluntarily provided call and text detail records and billing statements,” suggesting that at least some may have reached a compromise: Investigators could view records and numbers but did not have access to other personal material.

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