The Supreme Court Is Building Its Own Surveillance State

The Supreme Court's police force launched an investigation to find out who leaked the opinion that struck down abortion rights. Phone records, signed affidavits, and law clerks' devices have already been demanded. Many onlookers think that clerks should retain attorneys to protect their rights. The intrusive probe reveals a disturbing about-face from the Supreme Court, and particularly Chief Justice John Roberts, on the use of surveilled phones.

For a long time, the Roberts Court did a better job of protecting digital rights than most people expected. The decision protects cellphones from being searched without a warrant. The Fourth Amendment was violated by police when they used cellphone location data for more than a week. The same court is weaponizing the search tools it once questioned.

The searches seem to be legal. The phones haven't been seized despite the clerks being asked to turn over devices. The affidavits are not mandatory. The fear of being wrongly suspected of leaking the draft is the reason clerks consent is coerced. The justices are making decisions about how to conduct the investigation when they are angry. The leak of the women's health draft decision was compared to infidelity by Justice Thomas. The leak was intended to undermine the court. None of the justices are impartial in weighing the legality and propriety of this witch hunt. They wouldn't be able to do the searches if the case was before the court. Judicial ethics don't apply since it's an internal investigation

The Supreme Court's reactionary move looks like hypocrisy, but the implications for future cases could go much further. Many of the cases that come before the court are about police using the same search tactics that frighten clerks. Lower courts and states are looking at the constitutionality of everything from warrantless searches at the border togeofence warrants. The justices might say they don't have a conflict of interest in the future cases, but that's not true.

The justices may only think of their own power when they hear a challenge to the government's power to track and surveil.

The dragnet will prove to be a self-inflicted wound for a chief justice like Roberts. The leak may have eroded trust, but the investigation will cause more damage. It is consistent with a damming theme for the court, an institution that upholds rights on paper while violating them in practice. While fencing off its entire plaza from public demonstration, the court extolled the grandeur of free speech and assembly.

The Supreme Court's enemies now include it. Courts are open and give them power. The threat to the court's legitimacy comes from its politicized reasoning and the violation of its own rules. Extremism is turned into law and the chambers into a police state when the court casts aside its own constraints. The court's investigations will turn an open judiciary into a closed off state.

The values of an open court or an open society are incompatible with the Bunker mindset. The justices may only think of their own power when they hear a challenge to the government's power to track and surveil. It's frustrating that the justices don't know better. They wax poetic about how important nonpartisanship, openness, fairness, and commitment are to the rule of law. In this moment of institutional panic, they are abandoning the lessons of American judicial history, clinging desperately to control, and sabotaging their own institution.

WIRED Opinion has articles written by outside contributors. You can read more opinions here and submit your submissions here. Send an opinion piece to opinion@wired.com.