Chief Justice John Roberts has always been “a man more sinful than sin.” That line from Shakespeare’s “King Lear” seems more appropriate for the head of the supreme 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 facing 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 was popular with his colleagues and a man of unquestioned institutional knowledge and loyalty. He is, in many respects, the ideal chief justice: engaging, empathetic, and irreverent of judges and court staff.
Roberts has served as chief justice during some of the most controversial trials. Major decisions like overturning Roe v. Wade (which Roberts tried to avoid) has galvanized many against the court.
According to a recent poll, less than half of Americans (47 percent) have a favorable opinion of the court (51 percent have an unfavorable view). Of course, that level of support should cause envy among the court’s critics in Congress (18 percent approval) and the media (which only 32 percent trust).
However, some want to express their dissatisfaction more directly and even permanently. This week, Alaskan Panos Anastasiou, 76, was indicted on 22 federal charges for threatening to torture and kill six conservative judges.
Another man, Nicolas Roske, 28, will go on trial next June for the attempted murder of Associate Justice Brett Kavanaugh.
In the meantime, law professors have rallied the crowd, urging them to be more aggressive against conservative judges and even asking Congress to eliminate air conditioning so they can retire.
Politicians have also fueled anger towards the judiciary. On one infamous occasion, Senate Majority Leader Chuck Schumer (DN.Y.) announced in front of the Supreme Court, “I want to tell you, (Neil) Gorsuch, I want to tell you, (Brett) Kavanaugh, you’ve let the wind go.” storm, and you will pay the price.”
However, it was what happened on the court that bothered Roberts the most. On May 2, 2022, someone at the court leaked to Politico a copy of the draft opinion in Dobbs v. The Jackson Women’s Health Organization that overturned Roe v. Wade.
This is one of the biggest ethics violations in the history of the court. Subsequent investigations failed to produce charges against the perpetrator or perpetrators.
Now, the New York Times has published a detailed account of the court’s internal deliberations. The account appears to be largely aimed at the conservative justices and Roberts.
Some information about the deliberations in the three cases (Trump v. Anderson, Fischer v. United States, and Trump v. United States) should come directly or indirectly from justice. Some of these deliberations are restricted to members of the court.
Seeing the pattern in this and past leaks, one law professor, Josh Blackmun, even suggested that “it’s possible that (Justice Elena) Kagan, or at least Kagan’s surrogate, was behind the leak.”
That remains pure speculation. But after the previous Dobbs leak, Roberts is now dealing with leaks that came out of the judges’ secret conference sessions and memoranda. This comes after Roberts promised that security protocols had been strengthened to protect confidentiality.
Disclosure of this information to third parties violates Canon 4(D)(5) of judicial ethics: “A judge shall not disclose or use nonpublic information obtained in a judicial capacity for any purpose unrelated to the judge’s official duties.”
Roberts and the court have long maintained that the rules of judicial ethics applicable to other federal judges are advisory only.
However, some in Congress are now pushing for new ethics rules that could make fundamental changes to the judiciary. Justice Kagan supported the ethics change, which would have allowed lower court judges to rule on the judges. Justice Ketanji Brown Jackson has also publicly announced that he has “no problem” with the code of ethics that could apply to the Supreme Court.
A truly “enforceable” code might allow a lower court judge appointed by the supreme court to force the removal of a justice from a particular case. That could change the outcome in a closely divided court.
In light of the latest leaks, what will the panel do with judges who breached the confidentiality of internal court deliberations? According to the Constitution, a justice can be removed by Congress only through impeachment. Impeachment of a justice happened only once, in 1805, when Associate Justice Samuel Chase was acquitted.
Roberts has the demeanor and manners of a great judge. Despite that strength, one now wonders if he has the drive and determination to face his teammates over the worsening situation on the court. Years ago, I believed that Roberts erred in not publicly criticizing Justice Samuel Alito for disagreeing with President Barack Obama during his State of the Union address. Even if I sympathize with Alito’s objection to Obama’s misleading statement about the Citizens United ruling, it still violates judicial rules.
Roberts was a good leader in bad times. He can hardly be blamed for the alleged abandonment of the most basic ethical principles by judges or clerks. However, the current court is in an undeniable crisis of faith. For decades, institutional faith and loyalty have preserved secrecy and decorum. Once again, the tradition has been broken by the reckless and self-serving actions of those entrusted with the affairs of the court.
For those who truly revere the court, it is almost Lear-like betrayal of an isolated figure and even tragic. It was time for an institutional reckoning for Roberts to call his friends.
While there have been some previous leaks, the Supreme Court has been largely immune to the weapons leaks that are a hallmark of Washington. In a city floating on leaks, the court is an island of integrity. And more is lost in court than just secrets. There is a lack of confidence, even innocence, in the institution that once wanted to be 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”Indispensable Rights: Free Speech in the Age of Anger” (Simon & Schuster).
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