Below is my column in The Hill on a growing crisis at the Supreme Court for Chief Justice John Roberts. A new breach of confidentiality shows cultural crisis at the Court. While the earlier leaking of the Dobbs decision could have come from a clerk, much of the recent information could only have originated with a justice.
Here is the column:
Chief Justice John Roberts has always been “a man more sinned against than sinning.” That line from Shakespeare’s “King Lear” seems increasingly apt for the head of our highest court.
Roberts was installed almost exactly 20 years ago and soon found himself grappling with a series of controversies that have rocked the court as an institution.
He is now faced with another monumental scandal, after the New York Times published leaked confidential information that could only have come from one of the nine members of the court.
By most accounts, Roberts is popular with his colleagues and someone with an unquestioning institutional knowledge and loyalty. He is, in many respects, the ideal chief justice: engaging, empathetic, and unfailingly respectful of the court’s justices and staff.
Roberts has been chief justice during some of the court’s most contentious times. Major decisions like overturning Roe v. Wade (which Roberts sought to avoid) have galvanized many against the court.
According to recent polling, fewer than half of Americans (47 percent) hold a favorable opinion of the court (51 percent have an unfavorable view). Of course, that level of support should inspire envy in the court’s critics in Congress (18 percent approval) and the media (which only 32 percent trust).
Some, however, want to express their dissatisfaction more directly and even permanently. This week, Alaskan Panos Anastasiou, 76, was indicted with 22 federal charges for threatening to torture and kill the six conservative justices.
Another man, Nicolas Roske, 28, will go on trial next June for attempting to assassinate Associate Justice Brett Kavanaugh.
In the meantime, law professors have rallied the mob, calling for them to be more aggressive against the conservative justices and even calling for Congress to cut off their air conditioning to make them retire.
Politicians have also fueled the rage against the court. On one infamous occasion, Senate Majority Leader Chuck Schumer (D-N.Y.) declared in front of the Supreme Court, “I want to tell you, [Neil] Gorsuch, I want to tell you, [Brett] Kavanaugh, you have released the whirlwind, and you will pay the price.”
Yet, it is what has occurred inside the court that should be most troubling for Roberts. On May 2, 2022, someone inside the court leaked to Politico a copy of the draft of the opinion in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade.
It was one of the greatest breaches of ethics in the court’s history. The subsequent investigation failed to produce any charges for the culprit or culprits.
Now, the New York Times has published highly detailed accounts of the internal deliberations of the court. The account seemed largely directed at the conservative justices and Roberts.
Some of the information on deliberations in three cases (Trump v. Anderson, Fischer v. United States, and Trump v. United States) had to come either directly or indirectly from a justice. Some of these deliberations were confined to members of the court.
Seeing a pattern in this and past leaks, one law professor, Josh Blackmun, went so far as to suggest that it is “likely that [Justice Elena] Kagan, or at least Kagan surrogates, are behind these leaks.”
That remains pure speculation. Yet after the earlier Dobbs leak, Roberts is now dealing with leaks coming out of the confidential conference sessions and memoranda of the justices. This occurs after Roberts pledged that security protocols had been strengthened to protect confidentiality.
The disclosure of this information to third parties violates Canon 4(D)(5) of judicial ethics: “A judge should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s official duties.”
Roberts and the court have long maintained that judicial ethics rules that apply to other federal judges are merely advisory for them.
However, some in Congress are now pushing for new binding ethics rules that could make fundamental changes to the court. Justice Kagan is supporting the ethical changes, which would allow lower court judges to render judgment on the justices. Justice Ketanji Brown Jackson also declared publicly that she does not “have any problem” with an enforceable ethics code for the Supreme Court.
A truly “enforceable” code would presumably allow the lower court judges appointed by the chief justice to compel the removal of a justice from a given case. That could flip the outcome on a closely divided court.
Given the latest leak, what would such a panel do with a justice who has breached the confidentiality of internal judicial deliberations? Under the Constitution, a justice can be removed by Congress only through impeachment. Impeachment of a justice has happened only once, in 1805, when Associate Justice Samuel Chase was acquitted.
Roberts has the demeanor and decency of a great chief justice. Despite those strengths, however, some are now wondering if he has the drive and determination to confront his colleagues on a worsening situation at the court. Many years ago, I believed that Roberts erred in failing to publicly rebuke Justice Samuel Alito for publicly displaying disagreement with President Barack Obama during a State of the Union address. Although I was sympathetic with Alito’s objections to Obama’s misleading statements about the Citizens United ruling, it was still a breach of judicial decorum.
Roberts is a good chief in bad times. He can hardly be blamed for the alleged abandonment of the most fundamental ethical principles by justices or clerks. Yet, the court is now in an undeniable crisis of faith. For decades, institutional faith and fealty have maintained confidentiality and civility. Once again, that tradition has been shattered by the reckless and self-serving conduct of those entrusted with the court’s business.
For a man who truly reveres the court, it is an almost Lear-like betrayal of an isolated and even tragic figure. It is time for an institutional reckoning for Roberts in calling his colleagues to account.
While there have been a few prior leaks, the Supreme Court has been largely immune from the weaponized leaks so characteristic of Washington. In a city that floats on leaks, the court was an island of integrity. And more has been lost at the court than just confidentiality. There is a loss of confidence, even innocence, at an institution that once aspired to be something more than a source for the New York Times.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).
leonard leo- and opus dei-have inflicted immeasurable damage on the court and, indirectly, on the nation-i will leave aside the toxic citizens united decision- the decision in trump v. us makes a laughingstock out of the sacred originalist/textualist method of constitutional interpretation-and the assertion, long held in this country, that no man is above the law- immunity appears only in article I in reference to the speech or debate clause-the opinion- “writing for the ages”-conveniently elides the “case or controversy” mandate that has informed the court since its inception- the fact that the court refuses to be bound by any sort of ethical requirements that the rest of the federal judiciary is required to follow reflects a profound arrogance on the courts part- only two justices- sotomeyor and jackson- have ever picked a jury and/or litigated a case- i’m gobsmacked that we have an institution that claims to be the last word arrogating for itself a complete lack of accountability – they have joined donald trump in ruling themselves- and trump- to be beyond accountability-the framers did not provide a remedy for judicial unaccountability except impeachment-we are inexorably turning into the banana republic(s) that have been the object of so much calumny and opprobrium in the rhetoric propounded by both sides- i have never been a supporter of court expansion- until now- i look forward to an expansion to 13-statutory abrogation of trump v us- and the imposition of a binding ethical code on the court-congress ahs colluded in the degradation of the court by their willful blindness to opus dei, leo and the toxic trump opinion, rendered to keep one man from accountability- shameful- sad
“He (Roberts) can hardly be blamed for the alleged abandonment of the most fundamental ethical principles by justices or clerks.” Was it not the Chief Justice himself that inserted the word ‘tax’ into the legislation call Obamacare after the Congress made damn sure the “tax” would never, ever, ever, be written in the Bill? Talk about abandonment of principles. He, on that day, set the example for the rest to follow, namely: ordinary words can be redefined – if only one Justice desires. Team Blue picked up on that notion quickly!
One of the Justices could resign after DJT is reelected thus giving him another Supreme nomination. This would really disturb the hornet’s nest. Careful what you wish for, Democrat Marxists.
They rarely if ever have imagination enough to suppose what they deal out can eventually redound to their own detriment. I am entirely sick and eternally sickened by the madness that has gripped America, and much of the rest of the “Free World.” I feel absolutely impotent to make the slightest microscopic difference. Talking politics to Lefty friends and family is on a par with talking politics to my dog. I can forgive my poor doggie as he was born that way. My family and friends who are all educated and in possession of respectable IQs have none.
The trend is that the Left has normalized dehumanizing conservatives as an existential threat, materially misrepresenting their positions, rhetoric, and actions, in order to fan the mob.
An example is the claim that Trump called Neo Nazis “fine people” by editing out the part where he said, “And I’m not talking about the Neo Nazis or White Supremacists, who should be condemned totally.” Leftist politicians and activists, including President Biden, has repeatedly made this false claim, in order to falsely portray Trump as a white supremacist and threat to the nation. Apparently, enough people have amnesia about when Trump served as President of the United States, food and fuel were far more affordable, there were no new wars or invasions, and democracy did not, in fact, end, for “we must stop Trump” to be a campaign slogan. The rhetoric has already fueled 2 assassination attempts on DJT.
All the Supreme Court did when it overturned Roe v Wade was send the issue to the states. Those who oppose the states determining abortion laws also oppose the democratic process. A federal law will be considered too far in some states, and not far enough in others. Voters in each state can now elect a legislature that will decide abortion law in a manner that more accurately reflects the will of the people. This is why NY is totally permissive of abortion, while more conservative states have more restrictions.
Politicians deliberately misled the public on SCOTUS’ ruling on presidential immunity, by falsely claiming a sitting president could get away with murder.
It is only a matter of time before there are assassinations, or blackmail to force justices to retire, when there is a Democrat President in the White House. With the influx of 10 million illegal voters, registering a significant number of illegal aliens to vote, and the interminable pushes for amnesty, perhaps Democrats will have solidified enough power for a Single Party State.
The repeated assassination attempts on DJT, and the threats of assassinations on Supreme Court justices, underscores the totalitarian nature of the Left.
There was no “return to civility” with the election of Joe Biden. There was never a cessation of incivility by Democrats towards Republicans, which has now escalated to violence.
It would appear, they’ve been studying Mein Kampf.
Bull
Turley… how long is your memory? Asking, because I remember the NUMEROUS times Justice Bader Ginsberg was happy to be interviewed and say that GOP nominee Trump was not fit to be president. Now… you dropped your guts in disapproval that Roberts didn’t publicly rebuke Alito for shaking his head side to side:
“Many years ago, I believed that Roberts erred in failing to publicly rebuke Justice Samuel Alito for publicly displaying disagreement with President Barack Obama during a State of the Union address. Although I was sympathetic with Alito’s objections to Obama’s misleading statements about the Citizens United ruling, it was still a breach of judicial decorum.”
Did you EVER write a single word of disapproval about Roberts not rebuking Bader-Ginsberg for not merely shaking her head, but several times eagerly pronouncing her personal opinions on Trump’s fitness for office?
Clearly you didn’t, as the only little bit of SCOTUS misconduct that popped into your judicial mind was Alito shaking his head while Obama lied about the Justices sitting there in front of him – couldn’t even squeeze a word of disapproval in regarding The Smartest Guy In The Room doing that in front of the nation. Bader-Ginsberg’s outrageous conduct has already disappeared into your Democrat memory hole.
“Roberts is a good chief in bad times.”
Roberts is a simpering, craven weak justice in bad times. And your ability to judge character and apply similar standards to justices is equally suspect.
He is, in many respects, the ideal chief justice: engaging, empathetic, and unfailingly respectful of the court’s justices and staff.
That’s quite some apple polishing you’re doing in desperation (admiration?) of Roberts, Professor Turley.
Rather reminiscent in fact, of your similar apple polishing and apologies of Merrick Garland that went on for years. Garland, that fine, fine Attorney General it has taken you years to approach the point of suggesting perhaps there might be more than just a few inadvertent errors in how he’s run the DoJ.
What standards do you draw from to believe a Chief Justice’s primary role is to be a WalMart greeter for the other justices and all of the staff?
Major decisions like overturning Roe v. Wade (which Roberts sought to avoid) have galvanized many against the court… Roberts has the demeanor and decency of a great chief justice.
When did cowardice get described as the demeanor and decency of a great chief justice or any other kind of leader? Too cowardly to rule on a case even Bader Ginsberg said was inevitably doomed out of fright at public outrage from one half of the population. How is it decent to prefer to let a wrongfully decided issue stand? He would have cowered at the thought of overturning Dredd Scott 70 years ago.
What kind of a leader cowers in his chambers while a Senator stands on the courthouse steps threatening his Associate Justices?
What kind of a leader stays silent while the DoJ refuses to enforce federal laws concerning mobs gathering outside the homes of his justices to threaten them?
He primarily strikes me as a Chief Justice mostly concerned that he doesn’t upset the media and Democrats and lose his place on the Washington DC cocktails and canapes party circuit.
Never mind his pathetic decisions like the Obamacare decision, which rivals Roe v. Wade in judicial stupidity.
Your blog has value Professor Turley, but your insipid apple polishing while frantically knitting covers for outright contemptible and in some cases malignant behavior by first Merrick Garland and now Roberts has a ripe stench to it that doesn’t get better as time passes and their conduct doesn’t.
Astute!
When justices nominated by the left are nothing more than DEI candidates it should hardly be surprising when ethics is abandoned.
Democrats are the enemy of the American people.