4 ms·

And such a clerk could be particularly welcomed by an ideologically aligned firm, but less so if they have been disbarred as a result, which seems to be a real

And such a clerk could be particularly welcomed by an ideologically aligned firm, but less so if they have been disbarred as a result, which seems to be a real possibility. It could be a great boost to a media or political career, but not so much for a legal career.

SllX 4y ago
If it’s a mass firing, do you think disbarring would be likely for any or all of them? I think it’s incredibly likely if they determine exactly who it is and that person would deserve to see their career ended and at that point you would just fire that one clerk; but I don’t think it is likely at all if they were fired en masse because the Court couldn’t determine the exact culprit. It’s not great, but we’re still talking about a group of people who know how the Court operates because they worked there recently, and I think it would be difficult to make a case for disbarment for the whole lot if the Chief Justice actually did exercise this option.
- defen 4y ago
  Roberts should simply have the FBI ask each clerk if they leaked the document. If the clerk says yes, fire them. If the clerk says no, they are either telling the truth or committing a felony. Would the real leaker risk catching a felony charge if they don't know whether the FBI actually knows the identity of the leaker? If the clerk refuses to answer, apply "adverse inference" and fire them, because they are either the leaker or are hindering an investigation.
  - SllX 4y ago
    Maybe I haven’t made it clear from this comment chain, but I view Sarah’s proposal as a last resort if investigatory measures fail, as I think Sarah did too when she presented it. Right now the Court is conducting its own investigation and while Roberts could bring the FBI in, he can’t control how they conduct an investigation and it would present its own dangers to the Court itself.
    - defen 4y ago
      True, he can't control but that's federal law enforcement 101 - "get the suspect to lie to you".
      - formerkrogemp 4y ago
        Or, you know, maybe, they would know their rights and plead the fifth, as any idiot making that far into laws school would do?
        defen 4y ago
        They can absolutely plead the fifth. But Roberts could also fire them for refusing to answer.
  - HWR_14 4y ago
    The FBI is the wrong actor. The US Marshals is the appropriate federal agency to deal with court security.
  - 8note 4y ago
    Who says firing is the right option, vs some lesser disciplinary action? Is the leaker the fall guy for somebody else?
  - glandium 4y ago
    An investigation of what? According to Legal Eagle's short (https://youtube.com/shorts/vUqsegzWbKo https://youtube.com/shorts/vUqsegzWbKo), the leak is not illegal.
    - SllX 4y ago
      Let’s just grant the point for the purposes of this conversation (which is not to say I agree, this has not ever actually happened before but could be considered theft of government property, but just for this conversation we’ll set that aside): would you want to keep someone on staff that violates your trust for politically motivated reasons? It’s not just the current Justices and staff that want to know either. There has never been a before-the-fact wholesale leak of a draft opinion, but there have been months after-the-fact leaks that saw the leaker completely shunned by the community around SCOTUS independent of political affiliation or judicial philosophy from former and current clerks to the Justices themselves. They keep it tight, and clerkships, SCOTUS or otherwise, are usually the ultimate networking opportunity. Simply put, it was unprofessional and everyone involved has an interest in determining who it was no matter what the political motivations were or the hoped for outcome.
rayiner 4y ago
I can’t see any blue state bar taking action on this.
- richardhod 4y ago
  This may be your own prejudices here, since Bar orgs are almost exclusively about fitness and good practice, not political point-making
  - rayiner 4y ago
    Not recently: https://businesslawtoday.org/2020/10/anti-racist-speech-action-legal-profession-model-rule-8-4g-go https://businesslawtoday.org/2020/10/anti-racist-speech-acti.... In particular the ABA recently adopted a vague and sweeping model rule of ethnics that could be construed to, for example, prevent Muslim lawyers from advocating against policies on same sex marriage inconsistent with their religion. It is an extreme departure for a profession that historically prides itself on protecting the political process over making substantive judgments—a profession where the representation of nazis and murderers and terrorists in the name of access to the legal system for all is exalted. In the end only Vermont’s bar, adopted the rule (even Illinois rejected it: https://www.2civility.org/isba-assembly-opposes-adoption-8-4g-illinois https://www.2civility.org/isba-assembly-opposes-adoption-8-4...). But that just seems to me to be a minor bump in the road before the current crop of graduates from elite schools start replacing the folks in those bars as well.

SllX 4y ago

If it’s a mass firing, do you think disbarring would be likely for any or all of them? I think it’s incredibly likely if they determine exactly who it is and that person would deserve to see their career ended and at that point you would just fire that one clerk; but I don’t think it is likely at all if they were fired en masse because the Court couldn’t determine the exact culprit. It’s not great, but we’re still talking about a group of people who know how the Court operates because they worked there recently, and I think it would be difficult to make a case for disbarment for the whole lot if the Chief Justice actually did exercise this option.

defen 4y ago
Roberts should simply have the FBI ask each clerk if they leaked the document. If the clerk says yes, fire them. If the clerk says no, they are either telling the truth or committing a felony. Would the real leaker risk catching a felony charge if they don't know whether the FBI actually knows the identity of the leaker? If the clerk refuses to answer, apply "adverse inference" and fire them, because they are either the leaker or are hindering an investigation.
- SllX 4y ago
  Maybe I haven’t made it clear from this comment chain, but I view Sarah’s proposal as a last resort if investigatory measures fail, as I think Sarah did too when she presented it. Right now the Court is conducting its own investigation and while Roberts could bring the FBI in, he can’t control how they conduct an investigation and it would present its own dangers to the Court itself.
  - defen 4y ago
    True, he can't control but that's federal law enforcement 101 - "get the suspect to lie to you".
    - formerkrogemp 4y ago
      Or, you know, maybe, they would know their rights and plead the fifth, as any idiot making that far into laws school would do?
      - defen 4y ago
        They can absolutely plead the fifth. But Roberts could also fire them for refusing to answer.
- HWR_14 4y ago
  The FBI is the wrong actor. The US Marshals is the appropriate federal agency to deal with court security.
- 8note 4y ago
  Who says firing is the right option, vs some lesser disciplinary action? Is the leaker the fall guy for somebody else?
- glandium 4y ago
  An investigation of what? According to Legal Eagle's short (https://youtube.com/shorts/vUqsegzWbKo https://youtube.com/shorts/vUqsegzWbKo), the leak is not illegal.
  - SllX 4y ago
    Let’s just grant the point for the purposes of this conversation (which is not to say I agree, this has not ever actually happened before but could be considered theft of government property, but just for this conversation we’ll set that aside): would you want to keep someone on staff that violates your trust for politically motivated reasons? It’s not just the current Justices and staff that want to know either. There has never been a before-the-fact wholesale leak of a draft opinion, but there have been months after-the-fact leaks that saw the leaker completely shunned by the community around SCOTUS independent of political affiliation or judicial philosophy from former and current clerks to the Justices themselves. They keep it tight, and clerkships, SCOTUS or otherwise, are usually the ultimate networking opportunity. Simply put, it was unprofessional and everyone involved has an interest in determining who it was no matter what the political motivations were or the hoped for outcome.

rayiner 4y ago

I can’t see any blue state bar taking action on this.

richardhod 4y ago
This may be your own prejudices here, since Bar orgs are almost exclusively about fitness and good practice, not political point-making
- rayiner 4y ago
  Not recently: https://businesslawtoday.org/2020/10/anti-racist-speech-action-legal-profession-model-rule-8-4g-go https://businesslawtoday.org/2020/10/anti-racist-speech-acti.... In particular the ABA recently adopted a vague and sweeping model rule of ethnics that could be construed to, for example, prevent Muslim lawyers from advocating against policies on same sex marriage inconsistent with their religion. It is an extreme departure for a profession that historically prides itself on protecting the political process over making substantive judgments—a profession where the representation of nazis and murderers and terrorists in the name of access to the legal system for all is exalted. In the end only Vermont’s bar, adopted the rule (even Illinois rejected it: https://www.2civility.org/isba-assembly-opposes-adoption-8-4g-illinois https://www.2civility.org/isba-assembly-opposes-adoption-8-4...). But that just seems to me to be a minor bump in the road before the current crop of graduates from elite schools start replacing the folks in those bars as well.