Welcome to Supreme Court Brief. The justices have no decisions scheduled for this post-Memorial Day week. But they are acting on their emergency applications. NetChoice succeeded in blocking the enforcement of Texas's social media "censorship" law on Tuesday. We asked a few former clerks for their reaction to the news report that clerks are being asked to turn over their cell phone records in the leaked draft opinion investigation. Eight law firms have filed amicus briefs for groups supporting the overruling of the so-called Insular Cases–a step that Justice Gorsuch also has called on the court to take. And a rehearing petition has been filed in a key damages case decided in April.

Thanks for reading. We welcome feedback and tips. Contact Marcia Coyle at [email protected] and follow her on Twitter @MarciaCoyle. 

The plaza outside the U.S. Supreme Court building in Washington, D.C. The plaza outside the U.S. Supreme Court building in Washington, D.C. October 1, 2021. Photo: Diego M. Radzinschi/ALM

Investigating a Leak

The recent news report that Supreme Court clerks may be asked to sign affidavits or turn over their cell phone records in the investigation of the leaked abortion draft opinion stirred conflicting feelings among some former clerks, but they did agree those investigative tools likely are only causing additional stress during a normally stressful period at the court.

"I think this is really unfortunate," one former clerk said. "Another former clerk tweeted that this is good because it ratchets ups the costs of leaking in hopes it never happens again. I share the  sentiment this was an egregious breach. But I have grave concerns about privacy issues. You have to think about the clerks who didn't do anything and now are subject to this level of scrutiny, which is unprecedented and very, very invasive."