Lawyering, Media, Supreme Court

The Supreme Crisis of Chief Justice John Roberts

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).

312 thoughts on “The Supreme Crisis of Chief Justice John Roberts”

  1. * With half the nation as immoral nutjobs the court will reflect that as will the judicial system. Conservatives are now forces to bargain with criminals. The violent rhetoric comes from the left and the gun in your ribs is common.

    Perhaps a transcript of deliberations can be kept for juries and courts and scitus. Just publish them in the NYT and hate on. Much of federal law is just bunk.

    Enjoy bargaining with God knows what. .

  2. The grifter strikes again…

    The former first lady spoke at two political fundraisers for the Log Cabin Republicans this year, and she was paid $237,500 for an April event, according to former President Donald Trump’s latest financial disclosure form. The payment was listed as a “speaking engagement.”

    1. Clinton playbook page 10, the art of the deal. Page 11 discusses how to demand perrier water and blue peanut M&Ms as part of the negotiations.

  3. Professor Turley writes “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.”
    Tell that to “George,” the guy who spend two or three days on this blog trying to educate us how the justices were currently bound by ethics rules. I guess George has to educate Turley as well.

      1. I think it’s the one who talks about Justice Cannon at 11:47.

        I always get a blast out of comments like that.

      2. the one with the light blue and red avatar, the one that always starts his comments belittling Turley as “disingenuous” or wrong.

    2. It is true that there is nothing limiting the SCOTUS from implementing their own ethics rules. But the idea that 500 plus nincompoops in Congress who spend 80 percent of their time bumming money from donors, and ten percent of their remaining time on vacation is a far fetched idea at best.

      In the past forty years Congress has failed to produce one single annual budget in all but four of those years. They control the purse strings they are so fond of saying, yet cannot even accomplish the basic task of providing an annual budget (every year), for the Nation with nothing to show for it but for a continual string of temporary measures lasting a few weeks or months.

      The idea that Congress should be trusted to undertake anything so serious as an attempt to enforce a code of ethics upon a completely separate and independent element of government is unlikely to turn out well, and most likely would be used in today’s seeming precipice for a cultural civil war, as a means of corrupting the entire concept of an independent triad of governmental infrastructure in a three blind mice march towards a one party rule.

  4. This is a better strategy than jury nullification: 1. Leak court document 2. Cry foul 3. Demand legislation to make leaks incriminating 4. Overturn unwanted decision on technicality 5. Repeat until favored decision is reached.

  5. Now what would make anyone think that an element of the government, would spy on another element of the government, and then collude with the extreme leftist media to embarrass the SCOTUS at the convenient moment in time that President Jill Biden’s husband is pushing to gerrymander the SCOTUS following the verbal threats issued in public by the Senate Majority Leader?

    Conspiracy Theorists / xxxx xxxx xxxx xxx
    Experts / 0

  7. It is undeniable that the court’s credibility spiral and leaks are concerning, but there are even more critical issues at play. Every legal scholar and lawyer has noticed the problem with conservative justices professing originalism and textualism but conveniently abandoning these principles when it suits their agenda. The hypocrisy of judges such as Cannon, Alito, and Thomas is glaring, and court watchers have taken note of the inconsistencies in their rulings.

    It’s evident that the leaked Dobbs decision points to Alito, although there is no definitive proof. The lack of exposure of the culprit suggests that revealing a justice’s involvement would irreparably damage the court’s and the justice’s credibility. Chief Justice Roberts must take action to restore the court’s integrity and prevent calls for its expansion. The continued leaks and contorted rulings only serve to justify the need for court expansion by Congress.

    While Turley supports expanding the court gradually, it is clear that there needs to be significant change. Implementing binding ethics rules is merely the first step, and if the justices cannot adhere to these rules, Congress should enact laws to enforce accountability. The Constitution allows for this, and it is a matter of political will to make it happen.

  8. The hanging judge testimony:

    Don’t you doubt it! There are times when I sat in that judgment seat. I wish there was someone standing between me and God almighty. Some say you’re wrong.

  9. Our nation is at a precipice placed there by the most corrupt in Washington. We were warned about “ fundamental change” but the uniformed and ignorant disregarded it as a speech. Now the very fundamentals of our constitution are ignored and breached. The sanctity of the of SC is breached by those we trusted to protect it, what next?

  10. Anything and everything is reasonable and fair in order to fundamentally transform our constitutional republic. May God have the ability to wash away the devil’s intentions.

  11. This is a direct result of agenda trumping an oath to the constitution and any sense of moral/legal character.

  12. The account seemed largely directed at the conservative justices and Roberts.

    It matters not a whit. They are intellectual heavy weights, have philosophical creds and a mind that is aligned with the thinking of St. Augustine of Hippo. St. Augustine was the single more important individual who influenced the shaping of the Western Civilization. He is the connection between the culture of ancient Rome and the Christian culture that followed Emperor Constantine’s declaration of making Christianity the official religion of the future Europe and Western World. St. Augustine and the Catholic Justices knew all too well the mindset of evil, which is the same evil that flourishes in America today

    St. Augustine was a follower of the prophet Mani before he converted to Catholicism. Trained in the discipline of rhetoric, was a consumate writer in Latin, devoured the works of Ovid, Virgil, Cicero, and others, Augustine had a formidable pedagogial training. He literally has no rivals, with St. Thomas Aquinas a close second. Few read his works today because they have the intellectual depth of the length of a social media tweet. Augustine struggled to understand, unlike the world today, how evil could exist in the world. He sought answers in Mani, a supposed follower of Christ and a self-proclaimed prophet, and became an enthusiastic follower of Manicheism. He also had a debaucherous, self-serving, life where he fed on unbridled appetites in Carthage, eventually living with a woman for 15 years, had a son, Adeodatus, and then dumped them both. Democrats would have loved him all the more except for the fact he later repented and gave his life to God.

    The Catholic Justices including Protestant Gorsuch who was trained in Catholic scholasticism and earned a PhD in Natural Law at Oxford, know all about the thinking and influence of St Augustine, his description of the fall of the Roman Empire due to its rampant immorality, relativism and self-referrential thinking, and his conversion to Christianity. These Justices also see how America’s collapse parallels Ancient Rome’s collapse. They likely think, like an educated, practicing Catholic should, that what we are seeing in America was predictable and expected, just like Rome’s collapse.

    It would be helpful if Professor Turley did a little more intellectual analysis of our current world in light of the Fall of the Roman Empire, how the West was shaped by Christianity, and how the US Founding Fathers embraced the principles of Christianity even if they had different degrees in their practice. America’s fall began mid-20th Century, and it’s been downhill since. We all know where this is headed.

    1. It is becoming painfully aware to us that we have generations of un-educate4d and/or mis-educated voters who know nothing about the inspiration and near perfection of our constitution but, would rather take their lead from pop stars and agenda-driven media.

    2. Well written Estovir, I would only take slight issue with the time period you have identified that began our downfall. I’d say it began mid-19th Century, not long too before Das Kapital was published coincidentally.

    3. “They are intellectual heavy weights”

      So, you would claim that every SCOTUS Justice is an intellectual giant? I have tended to take your posts seriously, but after that ridiculous contention, I may need to reconsider.

      1. Yeah, some are some real MENSA brainiacs, so intellectually beyond mere mortals that they can no longer define a woman.

    4. “. . . making Christianity the official religion . . .”

      That is called a theocracy.

      If you get your wish, America will descend into a second Dark Ages. (The first was that horrific period of history that you worship, but dishonestly refuse to name. So much for the idea that it’s only socialists that rewrite history.)

      1. 1. No, that is not called theocracy. Rome was never a theocracy. Nor have almost any countries with established religions been theocracies, throughout history. There are many countries that still have established religions now, such as the UK, and almost none of them are or have ever been theocracies. In the early days of the Republic several states had established religions, and yet none of them were theocracies.

        2. Estovir did not write anything that could suggest, as you claim, that he wishes to establish Christianity as the USA’s religion. Claiming he wishes that is therefore a lie.

    5. We all know where this is headed.

      Estovir, that is the essential point of studying history, isn’t it? With the common denominator being the nature of man, what belief systems throughout history led to the greatest security of the natural rights of man? First, I would argue it begins with a belief in a power higher than man. Secondly, I would say Christianity, unadulterated by sectarian interpretations that claim to be the one true faith, has led the way towards that security of rights. In my opinion, our decline as a nation and the overall loss of the security of rights throughout the world is directly related to the attacks on that belief system.

      1. Estovir, that is the essential point of studying history, isn’t it?

        The Old Testament is one of the best sources of history, insight into man’s blindness and a roadmap to where we are headed. Not surprisingly St Augustine mastered the Old Testament before he converted to Catholicism. It’s in the above link I provided on his life by Bishop Robert Barron.

        Any youtube video by Bp. Barron is well worth an investment of time. Here’s an excellent one on atheism & Christopher Hitchens

    6. Estovir, St. Augustine recognizes anger as natural, but indulging in it leads to violence, excessive pride and sin.

  13. In the history of the Supreme Court, how many leaks like this have happened? Has this happened in the past or is this the one and only.

  14. The Court seems to have no functional ethics code at this point. It was widely speculated Alito leaked on Dobbs. The conservative members placed by the Federalist Society are so corrupt they should be forced to decorate their robes with logos of all those they’ve sold out to…, just like NASCAR.

    And speaking of corruption, Rachel Maddow’s doc on Lev Parnas came out over the weekend. In it he details the effort of Rudy G and fox to character assassinate Hunter Biden…, and at the end Lev had a tearful amends session with Hunter. Made me think of how you jumped on that character assassination effort in order to ding Joe Biden, Turley. Truly a dishonest, underhanded and indeed despicable act on your part. Going after a political figure through their offspring. Beyond disgusting, Turls. You’ve got some amends to make.

    1. Hunter Biden’s own conduct “character-assassinated” Hunter Biden. I’m rooting for all persons striving to live an honest, sober life. But getting surrogates to spread narratives that Hunter Biden’s problems are the result of persons being mean to Hunter Biden? Get yourself to a meeting, pronto.

      1. Going after a political figurehead through his offspring…
        LOL The Big Guy is complicit!
        Thank Goodness someone went after them. The DOJ sure wasn’t, the FBI sure wasn’t, even with mountains of evidence and testimony. Everyone keeps saying Biden will pardon him, here’s a thought. Biden is demented to the point that he can no longer perform his Presidential duties and make sound decisions. Have you watched any of his recent appearances? I believe at this juncture, he could be challenged in court and Article 25’d at will now…
        My butt is wiped!
        Give the Biden’s what they deserve for their 50years of shakedowns and selling out of our Nation.

        1. I believe at this juncture, he could be challenged in court and Article 25’d at will now…

          If a fool keeps his mouth shut nobody knows he’s a fool. Someone who has no clue about the constitution should not talk about it.

    2. I really don’t think it too difficult to conduct any form of character assassination against someone who’s plead guilty of tax fraud and illegal possession of a firearm, after leaving all the corroborating digital evidence in possession of the FBI.

      1. “I really don’t think it too difficult to conduct any form of character assassination against someone”

        One might question whether it is possible to assassinate something that does not exist. Is that some king of legal existentialism?

    3. How awful, you sound like The HildaBeast or maybe Jamie Raskin. Fingernails on a blackboard to me. Give it a rest. Yes, everyone knows Hunter Biden is the best human being ever in the history of human beings. There, does that satisfy you? You convinced me. You had me at “Rachel Maddow blah blah blah…”

        1. Have you tried prozac? You may try building models, it may help. If you do, it will also give you an excuse to keep sniffing glue.

  15. We saw the Venezuela Supreme Court handle the nation’s presidential election. That’s what you get when politicians control the court. Our Supreme Court is an independent judiciary. Where might we start thinking about the leak at the Court? Los Alamos Laboratory had a leak years ago. Was the focus on Robert Oppenheimer or Gen. Leslie Groves? No. It was on Klaus Fuchs, who walked the atom bomb plans off the campus into Joseph Stalin’s hands. Chief Justice Roberts is the right choice to lead a resolution of the current Klaus Fuchs leak. And not have a Venezuela supreme court.

  16. I don’t conclude that one of the 9 justices are responsible for these leaks. It’s quite possible for a listening device to be planted, a passive audio-recording device not able to be detected in a bug sweep.

    1. A listening device such as one known as a “cell” phone, or perhaps a smart tv with a microphone for speech commands, or any electronic device with a keyboard connected to a cable provider. Listening devices are 007 old school.

      And then there are the hackers.

      Just be glad that no bad actor Nation state has intercepted the cell phones as yet before their arrival at your local distributor for you to purchase…

    1. ” a city that floats on leaks”

      You could turn that around to make a synonym for raining (yellow variety) on your parade.

  18. “… 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. …”

    SO … Tell Us who you think done it.

    Justice Kagan
    Justice Ketanji Brown Jackson
    The Iranians
    The Russians
    The Chinese
    President Pro Tempore Jill Biden
    Frm. Sec of State H.R. Clinton
    The CIA (US Intel Community)
    ChatGPT-4
    Virtual Interactive Kinetic Intelligence (a.k.a: VIKI)
    (Dishonorable mention: Micheal Cohen) ….

    Everyone, Everywhere, Every minute. …

  19. John Roberts shall forever be deeply diminished by his acquiescence in the current jailing of Steve Bannon for an undeserved misdemeanor sentence that runs practically to the eve of Election Day.
    Bannon had co-managed Trump’s successful 2016 campaign for the White House and has remained a vastly influential advisor to Trump and to America . Hosting the War Room podcast had him on the air at least 22 hours a week until his jailing took him off the playing field and silenced an incomparable voice that inspired millions of Trump supporters to take “action action action” to “make America great again”. His defense to a so-called crime of refusing a subpoena from the aberrant House Jan 6 committee was anchored in many reasonable facts, none of which he was allowed to present at trial. Appellate Judge Justin Walker agreed that Bannon had demonstrated a strong case for setting aside his conviction, yet John Roberts, who had the final word before Bannon’s jailing, defaulted in doing his duty to America to let a unique voice with a huge audience be free to speak during this most important of elections.

    Other perpetrators of actions comparable to Bannon’s – like Lois Lerner, Eric Holder and Merrick Garland, all Democrats— suffered no penalties. Given Bannon’s was an essentially harmless misdemeanor, any sentient judge would have, at least, delayed Bannon’s sentence until after Election Day. Roberts’s legacy should forever be stained by the cruel and unusual punishment he authorized to be visited on Trump’s and America’s extremely high-valued advisor. Only one other individual in the last century was jailed for what Bannon was accused of doing. America’s judiciary has seldom failed our country so badly as in the matter of Steve Bannon. Shame shame shame on John Roberts!

    1. Why hasn’t Eric Holder been arrested and prosecuted like Bannon? Why wasn’t Hunter Biden arrested and prosecuted like Bannon?

      1. Because it’s up to the US Attorney for DC whether to prosecute someone or not. That discretion is not reviewable by any court.

  20. There needs to be a full investigation. The guilty party found and if charges could apply, should be charged accordingly. Problem is, if it is in fact one of the Justices, how would that play out? Impeachment? If Trump wins, and he has the opportunity to appoint another SC Justice? We thought the Kavanaugh’s nomination was crazy?

    1. Roberts has the ability to deal with this internally and effectively if he wants

      Do not make this over complicated
      Taking the discipline out of roberts hands
      Will mean nothing is done

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