Prices in May were 8.6% higher than they were this time last year, the largest year-over-year increase since December 1981. 

Gas, food, and housing costs are rising, and voters are taking note. A May Pew Research poll found inflation was the top concern for Americans by a wide margin. Seven in ten respondents called it a “very big problem,” more so than healthcare affordability (55%) and violent crime (54%). Inflation was the only issue that a majority of both Republicans (84%) and Democrats (57%) rated a “very big problem.”

The primary responsibility for curbing inflation lies with the Federal Reserve. The Fed has already sprung into action, raising its benchmark lending rate by 0.75%, the most since 1994. In a report to Congress the Fed said, “[Our] commitment to restoring price stability — which is necessary for sustaining a strong labor market — is unconditional,”

Although the Fed is the prime mover on inflation, the White House and Congress could take important additional steps. Unfortunately, it is becoming clear that all the talk from Capitol Hill will amount to little action.

Democrats are by and large proposing messaging bills—with no chance of becoming law—that they can tout to voters before the midterms. Republicans, for their part, seem content to just blame Democrats, while offering few ideas of their own

As for the White House, President Biden just yesterday proposed a three-month gas tax holiday that already appears doomed in Congress, with many members dismissing the move as a “gimmick.”

The New Center decided to review anti-inflation proposals and found that most of Washington is playing games. Here are just a few examples:

Congressional Democrats are proposing partisan bills, many of which are stuffed with long-time Democratic priorities. Rather than working on compromises that could actually pass, Democrats are focused on looking good to their supporters. 

Congressional Republicans have been mostly silent on inflation, speaking up only to blame Democrats. The few bills by Congressional Republicans are toothless, and only one has Democratic co-sponsors (but still not enough to pass a Democratic Congress). The Republican bills include:

This past week, Congress did manage to overwhelmingly pass the bipartisan Ocean Shipping Reform Act to strengthen supply chains by investigating unfair practices and prices in the shipping industry. This is a constructive step, but more action is required.

The New Democrat Coalition—98 moderate House Democrats—recently released a 24-page inflation plan that includes curbing the national deficit, cutting tariffs and other trade barriers, and investing in workforce development to boost productivity. Senator Mike Lee, a Republican, has made several proposals to boost the supply of houses and reduce shipping congestion through deregulation of zoning and trade, many of which overlap with the New Democrats’ plan.

But these proposals likely aren’t going anywhere either. As Washington Post columnist Catherine Rampell put it: “Republicans have not offered concrete proposals because they’d rather the midterms serve as a referendum on the Democrats.”

It all adds up to Congress likely doing little, if anything, to address inflation before the November elections.

Part Two of The New Center’s Two-Part Nuclear Energy Series

It might surprise you to learn that the federal government’s Nuclear Regulatory Commission has no incentive to actually expand the use of nuclear power in the U.S. But it’s true.

On its website, the NRC describes its mission as “to ensure the safe use of radioactive materials for beneficial civilian purposes while protecting people and the environment.” The NRC lacks a mandate to actually grow the nuclear technologies it oversees. NASA’s mission, for comparison, is to “explore the unknown in air and space, innovate for the benefit of humanity, and inspire the world through discovery.” Safety is listed as the first of NASA’s Core Values, but it is not the sole objective as it appears to be for the NRC. 

And based on the goals in their strategic plan for 2018-2022, today’s NRC is fixated entirely on dangerous but rare accidents with no focus on the public health and environmental benefits of nuclear energy. Because the Commission is concerned with safety and safety alone, it seemingly concludes the best approach is no new nuclear capacity in the U.S. 

“No new nuclear” may not be the official position of the NRC, but it might as well be. Since its inception in 1975, the Commission has never approved a new nuclear plant that made it to operation. It has approved new reactors at existing plants; and there were some plants that opened under the NRC, but they were approved by the NRC’s predecessor before 1975. In total, nuclear growth has plummeted under the NRC. The last time the U.S. saw a net increase in nuclear reactors was 1993. 

Source: Bloomberg

The alternatives to nuclear power are sources that are worse for the environment and cause even more deaths from accidents and pollution. Nuclear—a baseload power source—would be replaced by other baseload sources such as coal, not only by intermittent renewable sources like wind and solar. Just look at Japan: after essentially dismantling their nuclear energy sector in response to the Fukushima accident, coal and natural gas consumption has mostly filled in the gaps.   

Source: Energy Information Administration

Only one person died of radiation exposure at Fukushima. And Three Mile Island, America’s worst nuclear accident, caused zero deaths or injuries. These events were tragic and should never have happened, but regulators must consider them in context: nuclear’s fossil-fuel competitors kill millions of people worldwide each year through air pollution and accidents. 

It is time for Congress to give the NRC a new mandate; one that, inspired by NASA’s, instructs the Commission to expand the use of nuclear energy and expedite innovation in the sector. 

Safety should still be a top priority, but not the sole priority as it is now. Further, the NRC’s understanding of “safety” should reflect the Biden administration’s May 2022 rule changes which require infrastructure regulators (including the NRC) to consider the “direct, indirect, and cumulative effects” of new projects on the environment. Considering that it is far better for the environment and public health than its fossil fuel alternatives, nuclear energy is the safe path forward. 

The new mandate should be coupled with a comprehensive reform of the NRC’s licensing structure, as regulatory burdens have plagued the nuclear sector for decades.

Nuclear energy has historically been held back by cost concerns, and that’s only gotten worse over time. The U.S. Energy Information Administration (EIA) reported that inflation-adjusted construction costs grew from $1,500 per kilowatt of capacity in the 1960s to $4,000 per kilowatt in the 1970s. Today, the EIA estimates a new plant would cost $6,000 per kilowatt, or $6 billion in total for an average-sized nuclear plant, which has one million kilowatts (or one gigawatt) of capacity.

A 2020 study by MIT researchers found that one-third of the increase in nuclear construction cost can be attributed to regulation. The author emphasizes that regulation is not the sole cause: a decline in labor productivity—seen across the construction industry—as well as increased material costs and technical restraints are also major causes. But the conservative American Action Forum (AAF) calculated in 2017 that, even after construction, ongoing regulatory compliance (paperwork) alone cost the average nuclear plant $10 million annually.

Regulation is not fully to blame for the cost of nuclear energy, and it is certainly not dispensable. Safety regulations are necessary to prevent both major and minor accidents, especially for technologies as potent as nuclear power. But does the NRC really need 16,368 individual restrictions of nuclear energy, as AAF found in an analysis of the 2014 Code of Federal Regulations? For context, AAF points out that the EPA imposed only 3,484 regulations pertaining to air pollution—which is significantly more deadly than nuclear power. And should it take five years and millions of dollars just to earn approval for new reactors at existing plants, as AAF found to be the case? 

Can America’s once-great nuclear power industry be restored? Some lawmakers are working on it. In late April, President Biden allocated $6 billion for nuclear plants that are struggling financially. The move is expected to save at least two plants from imminent closure. Earlier that month, Senators Joe Manchin and Jim Risch introduced the bipartisan International Nuclear Energy Act that would address financing, licensing, and innovation barriers to the domestic and global nuclear energy markets. 

Congress could also help ease nuclear permitting time and costs by permanently extending FAST-41, a 2015 bipartisan reform to ease the regulatory burden on large infrastructure projects including nuclear reactors. The program has reduced the time (and money) necessary to earn approval without altering the rigor of safety and environmental reviews, saving projects years of waiting and millions of dollars. FAST-41 is set to expire this year; Congress could streamline the development of nuclear and other clean energy plants by making this successful program permanent. 

In a world of imperfect energy options, nuclear energy has long provided the U.S. with a critical base of safe and reliable energy. America needs more of it, now more than ever.

Part One of The New Center’s Two-Part Nuclear Energy Series

A March 2022 Gallup poll found that Americans are split on whether it is more important to protect the environment or produce more energy. Half of respondents prioritized the environment while 46% prioritized energy production. The responses generally followed party lines, but even independents were divided with 49% for the environment and 47% for more energy. 

As with most issues in American politics these days, energy and climate have been presented as binary, either/or issues. But there is a neglected alternative that addresses both priorities: nuclear power. Nuclear is a clean, reliable source that can produce massive amounts of energy at scale with no carbon emissions. 

Although 69% of Americans want the country to become carbon neutral, many are still agnostic on nuclear energy. A March 2022 Pew Research survey found that 35% of respondents wanted the federal government to encourage nuclear production, while 25% wanted to discourage it, and 37% favored neither. 

For its part, Washington has not done nearly enough to educate the public on the benefits of nuclear as a clean energy source. And rapidly expanding it in America will require addressing the cost and regulatory hurdles that have had nuclear stuck in neutral for decades.

“Clean energy” is a rather broad term that may mean different things to different people. But nuclear power should qualify as a clean source under any sensible criteria. 

First and foremost: nuclear energy emits zero carbon during operation, and its total lifecycle carbon emissions—including from constructing the plant, mining the fuel (uranium), transporting the waste, and anything in between—are relatively low. Nuclear has among the lowest lifecycle emissions per kilowatt-hour of energy produced, roughly equal to wind and three times lower than solar. 

Source: World Nuclear Association

Nuclear is also not as land-intensive as other forms of energy, and it produces manageable amounts of waste.

A 2017 Strata Policy analysis found that nuclear energy requires 12.7 acres of land per 1,000 kilowatts produced annually, the third lowest among all power sources. Solar uses 43.5 acres and wind needs 70.6 acres to produce the same amount of power. The analysis measures total land use and includes things like waste storage, a common point of concern for nuclear energy.

Source: Strata Policy

Nuclear waste is manageable; not much is produced and we can handle it safely. According to the Nuclear Energy Institute (NEI), the largest trade association for the nuclear industry, most waste is used fuel: metal rods with solid uranium pellets inside. Nuclear fuel is about one million times more dense than other fuels. A one-inch tall uranium pellet produces as much electricity as one ton of coal. Because nuclear waste is so dense, there is very little of it: all of the waste ever produced by America’s nuclear industry would fit on a football field in a ten-yard-tall stack.

The used nuclear fuel rods are stored in “dry casks,” massive structures of concrete and steel that prevent radiation leakage. The U.S. Nuclear Regulatory Commission (NRC) believes these casks “provide adequate protection for public health and safety and the environment.” The NRC also notes that there have been thousands of shipments of nuclear waste across the country over the last 40 years “without causing any radiological releases to the environment or harm to the public.”

To be clear: nuclear waste is radioactive and highly dangerous. Improper handling can threaten public health and the environment. In April 2021, the Washington State Department of Ecology confirmed a waste storage tank at a decommissioned nuclear weapons manufacturing site was leaking radioactive material into the ground. Officials have warned there could be a “long-term environmental threat” if the spill is not cleaned correctly. Luckily, America’s careful regulation of nuclear energy waste disposal has prevented such leaks from becoming common occurrences. 

Despite the general success in nuclear waste management so far, all of the existing storage sites are designed to be temporary. Stakeholders and leaders in Washington have long wanted a permanent disposal option, but politics have gotten in the way. 

A decades-long attempt to create a permanent site at Yucca Mountain, Nevada, was terminated by the Obama administration for what the U.S. Government Accountability Office described as “social and political opposition” and “not technical or safety reasons.” A 2020 New York Times article asserts that President Trump also opposed Yucca Mountain for political reasons; he saw Nevada as a swing-state whose voters did not want to house nuclear waste. But incidents like the Washington State leak demonstrate why it’s necessary to put politics aside and find a permanent solution for nuclear waste. 

Future generations of nuclear reactors might have even smaller land and waste footprints. In 2020, the U.S. approved its first small-modular reactor (SMR) design, which the company NuScale plans to construct by 2029. NuScale’s SMR is only a third of the size of a standard nuclear reactor, and is even safer than existing nuclear power designs due to a passive cooling system that does not require human input during an emergency. As a result, much less land is required for the plant itself and the surrounding safety buffer. Other SMRs in development are looking at alternative or recycled fuels, which should shrink nuclear’s mining and waste footprints even further. 

Even without advancements in SMRs, nuclear is the clean energy that delivers. Nuclear power has by far the highest capacity factor, the measure of how often an energy source is producing its full maximum potential output. Nuclear reactors operate at peak performance 93.5% of the time, while wind and solar have capacity factors of 35% and 25%, respectively, because they only produce when the wind blows or the sun shines. 

Source: U.S. Office of Nuclear Energy

Because of its consistency, nuclear is often used as a baseload power source, according to the U.S. Energy Information Agency (EIA). “Baseload” is the minimum level of power that must be available to the electric grid at all times. The counterpart is peak load or intermediate power: additional electricity from oil and natural gas needed for the days and times of day when demand is at its highest, such as to operate the heater on a particularly cold night.

The EIA classifies wind and solar as “intermittent renewable” sources that contribute to the grid when conditions are right. They tend to displace oil and gas, since baseload sources like nuclear do not adjust output to match supply and demand. In this regard, wind and solar are not competitors with nuclear power, but complements to it.

While nuclear energy is incredibly reliable once in operation, the fuel it takes currently comes from unreliable suppliers. American nuclear plants import more than 85% of the uranium they use, almost half of which comes from Russia (16%) and its allies Kazakhstan (22%) and Uzbekistan (8%). Much like oil, the uranium market is heavily influenced if not controlled by hostile regimes. 

As President Biden said, Russia’s invasion of Ukraine and the subsequent energy crisis is a “stark reminder” that the U.S. must be energy independent. As it stands, America’s nuclear power industry is not independent—but things can change.  

Domestic mining of uranium has all but vanished in recent years. After reaching a high of 43.7 million pounds in 1980, domestic uranium production fell sharply throughout the 1980s and 90s and has only continued to dwindle. In 2019, only 170,000 pounds of uranium were produced in America. As a result, a 2020 Department of Energy report concluded that the domestic uranium mining industry was “facing imminent collapse.”

Source: U.S. Energy Information Administration

The early success of domestic uranium mining was mostly due to government protection. Generous subsidies and strict trade barriers created a thriving industry, but the industry tumbled a few years after the protections were lifted in 1975 and the Three Mile Island accident stained nuclear’s image in 1979. Domestic nuclear operators began looking elsewhere for fuel. And now, American uranium miners are failing to compete with those in countries like Kazakhstan which have significantly weaker environmental protections. 

Perhaps a 1960s system of heavy subsidies and blanket import bans would be unnecessary and unhelpful for the current moment. But the government could take small steps to boost domestic uranium demand; like filling the Strategic Uranium Reserve that Congress funded in 2021 but has still not been started, and suspending uranium imports from Russia and its allies proportionate to the war in Ukraine as we did with Russian oil, natural gas, and coal. 

The U.S. government could also spark demand for uranium by growing the nuclear power industry as a whole. In part two of The New Center’s nuclear energy series, we explore what it will take to finally unleash such a nuclear renaissance in the United States.

In the wake of two mass shootings—one at a grocery store in Buffalo, New York and another at an elementary school in Uvalde, Texas—the U.S. is again confronted with a heated debate about how to prevent such senseless acts of violence.

Most Americans agree that both mental illness and the ease of obtaining lethal weapons explain why these tragedies keep happening in the U.S. But once again, Washington seems unlikely to unify around a solution.

To prevent mass shootings, we must first agree on who is most likely to kill, and here the evidence is unambiguous: Individuals aged 18 to 20 are responsible for a disproportionate number of gun homicides.

It’s unsurprising, then, that most mass killers are mentally ill young men.

Most mass shooters would meet at least some of the conditions for a psychiatric disorder—just not necessarily a widely known, treatable mood disorder like major depressive disorder, bipolar disorder, or a psychotic mood disorder. These are the types of disorders policymakers or commentators typically refer to when they discuss mental illness in this context; but contrary to popular belief, these mood disorders explain just a small fraction of mass shootings (eight percent, according to a recent Columbia University study). An entirely separate, lesser-understood category of psychiatric disorders—personality disorders—is to blame.

While mood disorders like the ones listed above are treatable conditions characterized by a disturbance in an individual’s emotional well-being, personality disorders are characterized by maladaptive beliefs and patterns of behavior affecting an individual’s relationships with others. The majority of individuals who display traits associated with these disorders do not commit crimes. But according to Columbia University psychiatrist Michael H. Stone, who specializes in personality disorders, “Persons committing murder and other forms of violent crime are likely to exhibit a personality disorder of one type or another.”

Especially common among mass killers are traits associated with narcissistic, antisocial, and paranoid personality disorders, and many of the maladaptive beliefs and behaviors associated with these disorders can be observed in the warning signs (threats of violence, attention-seeking behavior, deception, callousness, and a lack of empathy, for example) the Buffalo and Uvalde shooters (and many others) exhibited prior to their crimes. And, while racism and xenophobia are not among the diagnostic criteria for any particular disorder, they should not be discounted as warning signs. One recent study found that several traits associated with narcissistic and antisocial personality disorders were strong predictors of prejudicial behavior.

Unlike those suffering from mood disorders, individuals with personality disorders are typically unable to recognize the problems with their beliefs and behavior patterns and therefore rarely seek treatment. And for the small number who do, cognitive behavioral therapy is exceptionally difficult because deeply-ingrained, maladaptive thought patterns are hard to reframe. In a worst-case scenario, talk therapy can even exacerbate narcissistic or antisocial behaviors because these individuals may see it as a game in which the objective is to manipulate the clinician. And further, there are no medications approved to treat any personality disorders. This distinction from mood disorders is crucial due to its policy implications: While improving access to mental health care is a valuable goal in itself, such an intervention would be unlikely to prevent many of these atrocities.

So what can be done? While there are a variety of factors that contribute to these horrific crimes (including racism and other extremist ideologies in many cases), the bottom line is that we must keep guns out of the hands of dangerous people. Because individuals who commit mass murder typically show warning signs of violence but are largely incapable of seeking help for themselves, the responsibility to intervene often falls on family members and others (such as friends, teachers, law enforcement officers, and psychiatric professionals) who have relationships with them. Many states give these individuals the ability to file an extreme risk protection order (ERPO) under what is known as a “red flag” law. An ERPO is a petition to a judge to temporarily remove guns from someone who displays alarming behavior indicating that they could be a danger to themself or others. If approved by a judge, the ERPO also prevents the individual from purchasing new guns for a period of time.

While many of the current red flag laws are effective, they have not proven to be a panacea in all of the states where they are operable. New York is one of the 19 states with a red flag law on the books, but the law failed to prevent the recent shooting in Buffalo. Despite the fact that the killer expressed his desire to commit a murder-suicide in a school assignment, he passed a psychiatric evaluation after insisting the threat was a joke he made so that he could get out of class (he revealed in an online post that this story was a lie). The details of the evaluation are unclear, but one thing that is certain is nobody—not a single teacher, school administrator, or psychiatric professional aware of the threat—sought out an ERPO following this incident. As for the shooting in Uvalde, Texas does not have a red flag law on the books at all.

In 2019, the U.S. Congress considered bipartisan legislation that would have established a federal grant program to encourage states to implement red flag laws, but it never passed. Congress should pass a similar law now, and each state and locality that enacts a red flag law should embark on an extensive informational campaign to educate school administrators, mental health and psychiatric professionals, law enforcement, and the public about what the law would entail, when it should be utilized, and how individuals may go about filing an ERPO petition. These campaigns should also emphasize the importance of taking violent threats and other concerning behaviors seriously, especially given that individuals who truly intend to commit violent acts are often skilled manipulators prone to lying about their motivations.

The Uvalde shooting has prompted bipartisan talks on red flag laws in the Senate, and conservative commentators have also begun to show support for such laws. One such columnist, David French, wrote in an op-ed, “in every one of the deadliest school shootings, the shooter exhibited behavior before the shooting that could have triggered a well-drafted red flag law.” This statement is accurate: A National Threat Assessment Center study of school shootings between 2008 and 2017 found that 100% of the perpetrators exhibited “concerning behaviors” before their attacks. Further, 83% made threats or shared their plans with others.

Although some gun rights proponents have warned against the possibility that red flag laws could be used to unfairly confiscate guns from individuals who do not pose real threats, these laws typically come with strong due process protections. After a petitioner files an ERPO, a judge must hear from both the petitioner and the respondent in court before making a decision, and gun confiscations do not come with any criminal charges for the affected individuals. It is crucial to ensure that all potential petitioners are aware of this procedure and the fact that there are no negative consequences for filing an ERPO petition in good faith (false petitions are, however, punishable by law in most states).

By now, most Americans are well aware that young men are the most likely demographic category to present an extreme risk. Both the Buffalo and Uvalde shooters were 18 years old at the time of their attacks. In fact, the rate of gun homicides among individuals aged 18 to 20 is about four times higher than that for individuals aged 21 and older. The “age-crime curve,” the observation that criminal behavior increases during adolescence and tapers off in adulthood, is one of the most consistent findings across studies on criminality over time. The reason is partially rooted in psychology. According to Dr. Howard Forman, a professor of psychiatry and behavioral sciences, “[t]he preponderance of young men engaging in these deadly, evil, and stupid acts of violence may be a result of brains that have yet to fully develop.”

Many studies show that the prefrontal cortex of the human brain, which is responsible for impulse control, judgment, and long-range planning, continues to develop until at least age 26. Until the prefrontal cortex is fully developed, the limbic system, which is responsive to social and emotional factors and responsible for reward seeking, dominates the adolescent brain.

This is the reasoning behind minimum age regulations for other activities that pose a danger to health and safety, such as drinking alcohol (21), buying cigarettes (21), or renting a car (typically 20 or 21, with extra fees for renters under the age of 25).

However, federal law allows individuals as young as 18 to purchase a long gun, including an assault rifle like the ones the Buffalo and Uvalde shooters purchased legally and used in their massacres. Some states (but not Texas or New York) have set higher age minimums for the purchase of long guns. Federal law regulates handguns, which are used in the majority of gun homicides, slightly more strictly—the minimum age to buy a handgun is 21.

If Congress really wanted to make it harder for dangerous young men to obtain deadly weapons, they could set a minimum age of 21 to purchase a firearm (with exceptions for those in military service). Although majority-conservative panels of judges have recently struck down such laws at the state level, the results of a recent Harvard-Harris poll (conducted prior to the Uvalde shooting, but after the Buffalo shooting) revealed that 76% of voters would support raising the minimum age requirement for gun purchases to 21.

Following the Uvalde shooting, Democratic Senator Dianne Feinstein called for the Senate to revisit the Age 21 Act, which she and former Republican Senator Jeff Flake had originally proposed in the wake of the Parkland, Florida shooting in 2018. Referring to the two most recent mass shootings, she wrote in a press release, “Both these teenage shooters would have been turned away at a bar. But they were able to walk into gun stores and legally purchase one of the most deadly weapons available.” Similarly, in the House, Representatives Anthony G. Brown (D-MD) and Brian Fitzpatrick (R-PA) have renewed calls to support the bipartisan Raise the Age Act.

The United States unfortunately has decades of data proving that young, mentally ill men are the most likely to engage in mass shootings. Two common-sense measures—enacting red flag laws and raising the minimum age to buy a gun—preserve the Second Amendment rights of law-abiding citizens, and most importantly, could preserve lives. Congress should act on both priorities now.

The recent leak of a draft Supreme Court decision written by Justice Samuel Alito—which, if finalized, would overturn the landmark Roe v. Wade case which legalized abortion—has dominated the news cycle in recent weeks. Ever since, many have wondered: Who was responsible for the leak? What are the relevant rules and regulations surrounding Supreme Court confidentiality? And what consequences will the leaker face, if any?

It may be awhile before we know answers to any of these questions. But The New Center did some digging to determine the most likely possibilities.

There are several theories as to who could have been responsible for the leak. The prevailing theory is that one of the 36 Supreme Court clerks, who are lawyers hired to assist the justices, leaked the document. While clerks are among the small circle of individuals with direct access to the justices and their work, these individuals also have a very strong incentive not to leak a draft decision. Committing such a breach of confidentiality would mean risking their future careers.

Supreme Court clerkships are among the most prestigious and sought after positions available to young lawyers. The Court receives over 1,000 clerkship applications each year from the brightest young lawyers in the country, and with only 36 positions available, it is typical for justices to hire only top graduates from the highest-ranked law schools. Given the prestige of these positions, those selected to fill them are afforded a wide range of desirable opportunities following their clerkships. For these reasons, Chicago-Kent law professor and former Supreme Court clerk Carolyn Shapiro believes leaking a draft decision would be “career suicide” for a clerk.

Although Supreme Court confidentiality rules are not codified in law, the institutional norms reinforcing confidentiality are strong. The Code of Conduct for Judicial Employees states that “a judicial employee should avoid making public comment on the merits of a pending or impending action.” While this code does not technically apply to Supreme Court employees, the justices regularly consult the code “to resolve specific ethical issues.”

Each new Supreme Court clerk is required to sign a confidentiality pledge, and according to South Texas College of Law professor Josh Blackman, Chief Justice John Roberts delivers a lecture to each new class of clerks warning that breaches of confidentiality will be punished. In an interview, former Supreme Court clerk Ian Samuel recalled a warning from the late Justice Antonin Scalia: “If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career.”

While the leak of an entire draft opinion is unprecedented in Supreme Court history, there have been instances of individuals disseminating information about Court proceedings and impending decisions to the press. In fact, in 1972, The Washington Post published a story with inside information on the Court’s deliberations relating to the impending decision on Roe v. Wade. The article drew upon a leaked memo written by Justice William O. Douglas to his colleagues in which he expressed frustration with Chief Justice Warren Burger’s delay tactics and demanded “that the abortion decisions be reported out immediately.” The leaker was not identified. Months later, as the decision drew nearer, a Supreme Court clerk revealed the upcoming ruling to a Time magazine reporter under the condition that the story would not be published until the Court handed down their official opinion. However, the final decision was delayed, and the article appeared on newsstands hours before the ruling.

Throughout the 1970s, ABC reporter Tim O’Brien gained access to confidential information on Supreme Court rulings, and he never revealed how he received this information. And in more recent years, reporters have received inside information from “sources familiar with the inner workings of the Court” about how the justices have arrived at certain decisions after the fact. One such situation unfolded in 2004 when a group of clerks leaked confidential details about the Court’s deliberations in the controversial Bush v. Gore decision to Vanity Fair.

Chief Justice Roberts has ordered the Supreme Court marshal to investigate the leak of Justice Alito’s Roe memo, and some have called for the leaker to be prosecuted. Prosecution seems unlikely, as a draft Supreme Court opinion is not a classified document. But there is a slim possibility that a criminal investigation would be warranted depending on the specific circumstances of the leak once they are determined. Criminal prosecution could be on the table if, for example, the draft was obtained illegally. In a Twitter thread, U.C. Berkeley Law professor Orin Kerr wrote, “Perhaps someone or some institution hacked into the computer of someone who had a draft of the opinion. Or maybe someone stole a paper copy of the opinion from someone who had a copy. Both of those are federal crimes.”

Under 18 U.S.C. §1001, any instance of lying or cover-up during the investigation would also be grounds for prosecution. According to Boston College law professor and former Supreme Court clerk Kent Greenfield, questioning each possible leaker as to whether or not they were responsible could open the doors for a criminal investigation if nobody were to confess.

In terms of punishment for the leak itself, some commentators and legal scholars have pointed to 18 U.S.C. §641, which prohibits theft, embezzlement, or conversion of government property for one’s own use. However, the Justice Department has stated that this law should not be applied when the property in question is “intangible property, i.e., government information”, if it was obtained for the purpose of disseminating to the public, and it was not obtained via wiretapping, interception, or trespassing. Barring any new information uncovered in the investigation, the Supreme Court leak appears to meet these three criteria and therefore prosecuting someone under this law seems unlikely.

Ultimately, if the leak did come from a Supreme Court clerk, it seems unlikely they’d be prosecuted, but likely their future legal career options would be severely limited. If a clerk is not responsible, it is not beyond the realm of possibility that one of the justices themselves leaked the document (according to Supreme Court historian Douglas Brinkley, for example, “[Justice William O.] Douglas leaked constantly to the press.”). While it is unclear exactly how the Supreme Court marshal will conduct the investigation, clerks, justices, and a select few additional staff members who would have had access to the document all seem to be likely targets for questioning.