A major leak at the Supreme Court is shedding new light on its secretive practices — and shredding trust.
Internal memos between the justices in 2016
published by The New York Times have created a firestorm around an institution that takes extraordinary measures to keep its contemplations confidential.
The memos give insight into the court’s deliberations that led it to block then-President
Obama’s Clean Power Plan — and to reimagine how its emergency docket functions.
Called the “shadow docket” by skeptics of the furtive practice, it has since then been used to hand President Trump roughly two dozen victories since his return to the White House. The decisions followed little briefing and no oral arguments, prompting fury from even some of the court’s own justices.
But even the law professor credited with coining the “shadow docket” term says the biggest scandal is the leak itself.
“Supreme Court leaks like these — including copies of confidential work product — are becoming more common. In my view, this is a bad thing. It will damage the institutional culture of the Court and do little good,”
wrote University of Chicago professor
William Baude.
It’s not an isolated incident. The memos surfaced as the four-year mark approaches of the seismic leak of the Supreme Court’s draft opinion overturning abortion protections.
Together, the leaks are shaking confidence in the court’s historic privacy and prompting calls for a reckoning.
At a Senate Judiciary Committee hearing Tuesday, Sen.
Josh Hawley (R-Mo.) called the leaks a “coordinated attack” by the left.
“The point of it is to destroy the independence of the Supreme Court, to browbeat that court into doing what the left in this country wants,” Hawley said.
The senator himself once clerked for Chief Justice
John Roberts, the focus of the recent leak, several years before he wrote the Clean Power Plan memos.
It remains to be seen whether an investigation will be opened. A Supreme Court spokeswoman did not return our request for comment.
Some Republicans are already calling for one, including Sen.
Mike Lee (R-Utah), another Judiciary Committee member.
Regardless, many court watchers say the damage is done.
Jonathan Adler, a William & Mary law professor and prominent court commentator, suggested in a recent blog post that it may make the justices less likely to commit their thoughts to paper.
“If I am right, this could have the inevitable (and perhaps undesirable) effect of more decisions in which the justices divide along predictable ideological lines,” Adler
wrote. “Thus insofar as the source(s) of these leaks do not like the Court’s orientation, their leaks might help produce a Court even less to their liking.”
The abortion draft opinion leak sparked a monthslong investigation at the court led by Marshal
Gail Curley and former Homeland Security Secretary
Michael Chertoff. Ninety-seven court personnel were interviewed, and employees’ laptops and phones were searched.
It didn’t turn up the culprit. The court said nearly 100 people had access to the draft opinion, and it couldn’t identify anyone responsible by a preponderance of the evidence.
Still, it led to changes, including recommendations for how to better handle sensitive documents. And perhaps more notably, it’s left a severe breach of trust at the court that still burns.
“Look where we are, where that trust or that belief is gone forever,” Justice
Clarence Thomas said at the time. “And when you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder.”
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Speaking of leaks,
Fox News and
CBS are newly reporting that sources close to Justice
Samuel Alito say he has no plans to step down this year.
Grumbles of justices’ potential retirements are more commonplace than leaks of opinions and internal court memos.
But the attention on Alito has grown, in particular, following revelations he
went to a hospital after falling ill in March and recent comments from
President Trump.
“It could be two, could be three, could be one. I don’t know — I’m prepared to do it,” Trump told Fox Business Network
last week about a potential vacancy.
Some pundits also note Alito’s October book launch will coincide with the start of the court’s next term, speculating he’ll be crisscrossing the country at promotional events rather than coming back for arguments. Others have pushed back that Alito is introverted and shyer than his colleagues and may have no problem skipping an extensive book tour.
Through it all, Alito has never given any outward indication he’s planning to step down. And when we bring it up to many court watchers, they’ve long splashed cold water on the notion of Alito retiring so soon.
At 77, he is the court’s oldest member. Still, he’s younger than the most recent justices who’ve stepped down.
Justice
Stephen Breyer served until he was nearly 84. Justice
Anthony Kennedy had just turned 82 on his last day. Before him, Justice
John Paul Stevens served until age 90.
You’d have to go back to Justice
David Souter, who retired at age 69, to find someone who voluntarily left the court that young. He returned to a quieter life in New Hampshire, where he lived until he passed away last year. Known for disliking public attention, Souter even forewent a Washington funeral.
Before him,
Sandra Day O’Connor stepped down at age 75. But she left that early to care for her husband, who was suffering from Alzheimer’s. It was O’Connor’s retirement that created the opening for Alito’s nomination.
