The Implications of the Supreme Court Leak for Criminal Defendants

Chief Justice John G. Roberts Jr. called it a “singular and egregious breach” and a “betrayal,” ordering the Marshal of the United States Supreme Court, Col. Gail A. Curley, to investigate. Independent columnist Bari Weiss labeled it “shocking.” And former federal prosecutor Andrew C. McCarthy referred to it as an “execrable act.” The news this past week of the leak of a 98-page draft opinion from Supreme Court Justice Samuel Alito in the case of Dobbs v. Jackson Women’s Health Organization has sent shock waves roiling across the legal community.

First, if the draft opinion represents the majority position in Dobbs, then we will see the precedent of Roe v. Wade overturned after almost 50 years, jeopardizing the right of women to choose to terminate a pregnancy during its first trimester. Almost as importantly, the leak to Politico represents a breach of trust within the chambers of the Supreme Court that is completely unprecedented. As Dean Erwin Chemerinsky of UC Berkeley School of Law points out, “Never before, to my knowledge, has a Supreme Court opinion been leaked like this.”

Clerking for the Supreme Court

Each year, the Supreme Court invites the top law students from the very best law schools to participate in a two-year clerkship with one of the nine Justices of the Supreme Court. This is a singular honor for a budding attorney. And it’s one that often opens doors to becoming a partner at a major law firm, a professorship at a law school or a future career as a federal judge. It is no coincidence that many of the most successful attorneys began their storied careers with a Supreme Court clerkship. 

Except for oral arguments in cases before it, the Supreme Court conducts most of its business in secret. The nine Justices meet and discuss the relative merits of the cases before the Court in private, with each Justice working with his or her team of clerks and professional staff to draft opinions confidentially on the various cases. The Justices then circulate and vote on these opinions. This determines which ones will serve as the official opinion of the Court, which ones will be consents bolstering the majority opinion and which ones will serve as dissents.

The reason for the secrecy is because the Court deals with cases of major importance. Leaks can be disastrous to this process. If it turns out that a law clerk was behind the leak, then this could have serious implications. These implications will obviously impact the Supreme Court, but they could impact criminal defendants as well.

The Attorney-Client Relationship

When police arrest someone, that person quickly finds out that the only person she can rely on is her attorney. This is because there is a great power imbalance in prosecutions. The State has unlimited resources, powerful investigative units and a team of seasoned attorneys representing it. The defendant has only her attorney. So, courts and the American Bar Association have long recognized the importance of the attorney-client relationship in criminal cases.

In Gideon v. Wainwright, the Supreme Court held that defendants in felony cases have an absolute right to counsel. Similarly, in Swidler and Berlin et al v. United States, the Supreme Court ruled that a confidential attorney-client communication survives the death of the client. This applies even if the communication has substantial importance to a State’s criminal investigation.

The American Bar Association has also put special emphasis on the attorney-client relationship in its Model Rules of Professional Conduct. For example, Rule 1.6 requires lawyers to maintain the confidentiality of disclosures made by clients. The only exceptions are in limited and specific situations.

The ABA’s reason for putting in Rule 1.6 is a recognition that clients have to trust that their lawyers will keep their communications confidential. “This contributes to the trust that is the hallmark of the client-lawyer relationship. As a result, the client feels encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.”

The Supreme Court Leak Raises Confidentiality Questions

During the course of a criminal defense case, a defendant will share many details of her life. These can be difficult or painful to discuss. And they can include things like personal finances, sexual relationships and specific details of the crime alleged. It is difficult (if not impossible) to defend a person if the client is reluctant to be honest. This is especially important if the defendant has been charged with a particularly heinous or notorious crime.

When famed attorney David Boies agreed to represent Harvey Weinstein against criminal charges of rape and sexual assault, he may have faced a mutiny from some young associates in his firm. Aaron Sibarium of the Washington Free Beacon reports that there were rumors of some lawyers in Boies’s firm who either demanded that the firm drop the case or receive severance pay so they could quit and work elsewhere. However, being a criminal defense attorney means being willing to represent defendants regardless of the charges, even if the clients face the most serious criminal offenses.

In addition, the Supreme Court leak calls into question just how seriously some newly minted attorneys take the issue of confidentiality. We currently don’t know who leaked the Alito opinion. But it seems possible that it was made by a clerk looking to push a political agenda. That political agenda could be either in favor of overturning Roe v. Wade or making sure that the Supreme Court continues that case as precedent.

Implications of the Supreme Court Leak on Criminal Defendants

Whatever the reason, it can have a chilling effect on criminal defendants. If the person who leaked the opinion is identified and goes unpunished, this will make it more difficult for defendants to fully trust their attorneys and be completely honest and open with them. Many of the most notorious defendants, like those accused of rape or child pornography, may be unwilling to fully cooperate with their attorneys. They might fear that their attorney will secretly leak sensitive information to the press or the court, putting their personal politics ahead of the duty they hold to their clients.

Moreover, if we live in a world where we accept breaches of confidentiality in court cases because of political expediency, then we will be undermining whatever rights defendants may have to a fair trial. This goes hand-in-hand with those who seek to diminish or negate the rights of the accused. As constitutional law professor Andrew Koppelman of the Northwestern Pritzker School of Law makes clear, “The idea that guilty people shouldn’t get lawyers attacks the legal system at its root. People will ask: ‘How can you represent someone who’s guilty?’ The answer is that a society where accused people don’t get a defense as a matter of course is a society you don’t want to live in. It’s a totalitarian nightmare.”

If criminal defendants cannot rely on the attorneys to keep their communications confidential, that’s a problem. There will be no way for them to get full and fair representation. The Supreme Court leak will make many defendants wonder if they can really trust their attorneys to keep their secrets. This is of major importance to the protecting the rights of criminal defendants. And this is true even if the person charged is, in fact, guilty of the accusations.