Chief Justice John Roberts has always been a man “more guilty than guilty.” That line from Shakespeare's King Lear seems all the more fitting for the Chief Justice of our nation's highest court.
Roberts took office nearly two decades ago and immediately found himself grappling with a series of controversies that rocked the institution of the court.
He now faces a major new scandal after the New York Times published a leak of classified information that could only have come from one of the Supreme Court's nine justices.
Many consider Roberts to be popular with his colleagues and a man of unquestioned knowledge and loyalty to the institution. He is in many ways the ideal Supreme Court justice; he is charming, empathetic, and consistently respectful of the justices and staff of the court.
Roberts served as Chief Justice during one of the Supreme Court's most controversial periods, with landmark decisions such as overturning Roe v. Wade (which Roberts sought to avoid) turning many people against the court.
According to Recent Opinion PollsFewer than half of Americans (47%) have a favorable opinion of the Supreme Court (51% are unfavorable). Of course, this level of approval is not shared by Congress (18% favor) or the media ( Only 32% trust it).
But some people want to express their grievances more directly, and even permanently. This week, Panos Anastasio, a 76-year-old Alaskan man, was indicted on federal 22 charges for threatening to torture and kill six conservative judges.
Another man, Nicholas Roethke, 28, is scheduled to go on trial next June on charges of attempting to assassinate Judge Brett Kavanaugh.
Meanwhile, law professors rallied around the mob, calling for more aggressive action against conservative judges and even for Congress to shut off the judges' air conditioning and force them into retirement.
Politicians have also stoked anger at the courts. In one infamous case, Senate Majority Leader Chuck Schumer (DN.Y.) declared before the Supreme Court: “I want to tell you all: [Neil] Mr. Gorsuch, I want to say to you: [Brett] Mr. Kavanaugh, you've created a stir, and you'll pay the price.”
But what worries Roberts most is what happened inside the courtroom: On May 2, 2022, someone inside the court leaked to Politico a copy of a draft decision in Dobbs v. Jackson Women's Health Organization, which would have overturned Roe v. Wade.
This was one of the largest ethical breaches in the history of the courts, and a subsequent investigation did not result in any charges being brought against the perpetrators.
The New York Times has now published a highly detailed account of the Supreme Court's internal deliberations, which appears to be directed primarily at the conservative justices and Roberts.
Some of the information about the deliberations in three cases (Trump v. Anderson, Fisher v. United States, and Trump v. United States) had to be provided, directly or indirectly, by the justices, and some of these deliberations were restricted to members of the court.
Law professor Josh Blackman noticed a pattern between this leak and previous ones: Furthermore, “probably [Justice Elena] Kagan, or at least her representatives, are behind these leaks.”
That's purely speculation, but after Dobbs' earlier leaks, Roberts is now dealing with leaks from the justices' secret conference sessions and memoranda, after he promised to have strengthened security protocols to protect confidentiality.
Disclosure of this information to third parties is Canon 4(D)(5) Judicial Ethics: “Judges may not disclose or use nonpublic information acquired in their judicial capacity for purposes unrelated to their duties.”
Justice Roberts and the Supreme Court have long maintained that the judicial ethics rules that apply to other federal judges are merely advisory to them.
But some in Congress are pushing for a new, binding code of ethics that could bring fundamental change to the Supreme Court. Justice Kagan supports ethics changes that would allow lower court judges to rule on Supreme Court justices. Justice Ketanji Brown Jackson has also publicly stated that she has “no problem” with creating a binding code of ethics for the Supreme Court.
A truly “enforceable” code would likely allow lower court judges appointed by the Supreme Court to force the removal of judges from certain cases, potentially overturning the decisions of a narrowly divided court.
Given the recent leaks, how would such a committee deal with judges who violate the secrecy of internal judicial deliberations? Under the Constitution, judges can only be removed by Congress through impeachment. The only time a judge has been impeached was in 1805, when Judge Samuel Chase was acquitted.
Roberts has the demeanor and civility you expect from a great Supreme Court Justice. But despite these virtues, some question whether he has the willingness and determination to confront his colleagues about the worsening state of the Court. Years ago, I was convinced that Roberts was wrong to not publicly rebuke Justice Samuel Alito for his public opposition to President Barack Obama during the State of the Union address. While I was sympathetic to Justice Alito's dissent against President Obama's misleading comments about Citizens United, it was still a breach of judicial decorum.
Roberts is a good chief justice in times of economic downturn; one can hardly blame him for his justices and clerks' alleged abandonment of the most basic ethical principles. But the Court is now in the midst of an undeniable crisis of trust. For decades, confidentiality and civility were ensured by institutional trust and loyalty. That tradition has been shattered once again by the reckless and self-serving behavior of those entrusted with the business of the Court.
To anyone who holds the Court in high regard, this is a King Lear-like betrayal of an isolated and tragic figure. It is time for a systemic reckoning with Justice Roberts, who will hold his colleagues accountable.
Though there have been a few leaks before, the Supreme Court has been largely immune to the weaponized leaking that is endemic to Washington. In a city of leaks, the Court was an island of honesty. And it's not just secrecy that's been lost at the Supreme Court; an institution that once aspired to be more than just a source for The New York Times has lost its credibility, even its innocence.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He says:An Essential Right: Free Speech in an Age of Rage” (Simon & Schuster).
