The latest leaks show the Court’s vulnerability to insiders using the press to wage war on it as an institution.
The latest leaks show the Court’s vulnerability to insiders using the press to wage war on it as an institution.
E ver since the Dobbs opinion leaker escaped any punishment or even exposure, many of us have worried that the precedent would encourage further leaks from the Supreme Court, especially to left-leaning journalists eager to discredit and delegitimize the Court. Here we are again. On Sunday, the New York Times published an article titled “How Roberts Shaped Trump’s Supreme Court Winning Streak.” The story looks at the behind-the-scenes maneuvering in the Court’s confidential deliberations over three Donald Trump-related cases last term: the Colorado Trump ballot-disqualification case (Trump v. Anderson), the January 6 defendants statutory case (Fischer v. United States), and the Trump presidential-immunity case (Trump v. United States).
The obvious questions arise: Who is leaking to the Times, and how can this be stopped? Leaks of internal deliberations may not be as drastic and unprecedented as leaking an entire draft opinion. Nor do after-the-fact leaks of deliberations in already-decided cases represent the same kind of security threat to the justices as a leak of a pending decision, which signals that the only way to stop it from being issued is to intimidate or harm the justices in the majority.
But leaks of the confidential deliberations of the justices still corrode the collegiality and trust that the Court requires to function. We have seen, in the case of Congress, how doing everything in public leads to more posturing and less deliberation and compromise. Driving the Court into that same ditch will be bad for the country — but good for those whose aim is to damage the Court out of rage that it is nearly the only remaining national institution in the hands of conservatives.
What was leaked this time, and by whom? The Times story describes its sources as “details from the justices’ private memos, documentation of the proceedings and interviews with court insiders, both conservative and liberal, who spoke on the condition of anonymity because deliberations are supposed to be kept secret.” The authors note that “all nine justices declined to respond to written questions from The Times, a Supreme Court spokeswoman said,” which pointedly leaves unclear whether any of the justices spoke to the Times on background or gave it documents. Much of the color in the article comes from public sources such as the final opinions and the oral arguments, so it is worth isolating what was leaked.
Trump v. United States
First, the article describes a February 22, 2024, memo from Chief Justice John Roberts to the other justices regarding whether to grant certiorari to hear Trump v. United States.
Second, it recounts that, “Justice [Brett] Kavanaugh responded the next morning, agreeing with the chief’s logic, according to insiders who knew of the exchange.”
Third, it recites what was said by Justices Sonia Sotomayor, Clarence Thomas, Neil Gorsuch, and Kavanaugh at the justices’ private conference on February 23.
Fourth, we are told how the justices voted at their private conference after the argument.
Fifth, the article describes Justice Sotomayor’s response in June to Roberts’s draft opinion in Trump v. United States:
After he circulated his draft opinion [on June 1], Justice Sonia Sotomayor, the senior liberal, signaled a willingness to agree on some points in hopes of moderating the opinion, according to those familiar with the proceedings. Though the chief justice often favors consensus, he did not take the opening. As the court split 6 to 3, conservatives versus liberals, Justice Sotomayor started work on a five-alarm dissent warning of danger to democracy. . . .
After the chief justice circulated a draft on June 1, and Justice Sotomayor responded that she would consider a partial compromise, her invitation appeared to go nowhere.
Sixth, we get this description of Roberts’s opinion-writing: “Inside the chief’s chambers, all four of his clerks participated in a furious rewriting effort. Later, others at the court wondered if the chief justice had taken on too much.”
What can we conclude from this? The certiorari memo would, like a draft opinion, have been circulated to the other justices, and perhaps their law clerks, although we know that internal circulation has been more limited in the aftermath of the Dobbs leak. The private conferences are attended only by the justices, although it is entirely possible that a justice told a clerk, a spouse, a friend, or someone else what happened, and that person leaked to the Times. That same problem bedevils efforts to trace what else is said here: We’re given the contents of a Roberts–Kavanaugh conversation and a window into what was happening internally within the chambers of Sotomayor and Roberts.
In order to make sense of the leaks, one must consider the choice of the Times as their recipient. The story was written by Jodi Kantor and Adam Liptak, with additional credits to Alan Feuer and Julie Tate. You’ll recall Kantor as the pro-abortion writer who led the charge against Justice Samuel Alito on the ridiculous stories about flags flying at his home and beach house. We can safely rule out the possibility that Alito, in particular, would speak to these people, and it seems profoundly unlikely that Thomas would, either.
The thrust of the story paints Sotomayor as responding in sadness to a scorned effort to moderate the opinion, and combined with the fact that we are told when she started writing her dissent, it seems most likely that this whole account originates from within her chambers. Moreover, any of the conservative justices or their clerks had to know that this was never going to be written as an account sympathetic to Roberts: While it shows his continuing influence, it also paints him as a horse-trader with questionable political judgment who produced an opinion the authors describe as rushed, controversial, and sloppy.
On the other hand, if Kantor and Liptak aren’t flatly misleading their readers (a possibility I don’t rule out), someone who counts as a “conservative” and was familiar with the internal working of Roberts’s chambers and with his conversations with Kavanaugh had to have talked to the Times, or at least talked to the Times’ ultimate source(s). CNN’s Joan Biskupic has produced quite a lot of reporting that at least sounds as if it originates from within the chief justice’s circle, offering justification for his point of view. It is entirely possible that somebody (whether a justice, a clerk, or someone close to a justice) was persuaded by the Times writers that an article on this topic was under way, and the chief’s side of the story should be a part of it.
If so, that was a miscalculation, and a completely predictable one.
Trump v. Anderson
First, the authors write of Trump v. Anderson that “from the start of the justices’ private discussions of the case, Trump v. Anderson, it was clear that the court was going to say no [on excluding Trump from the Colorado ballot], according to several people at the court familiar with the conversations.”
Second, they write that “Chief Justice Roberts told his colleagues he wanted the decision to be unanimous and unsigned. . . . He even said he would consult individually with everyone to discuss what they would accept — a rare step.”
Third, we are told that when four of the conservative justices pushed for a more definitive outcome on whether Section Three of the 14th Amendment can be self-executing without an enforcement mechanism enacted by Congress, Roberts “lingered over the choice, those familiar with the process said.”
The sourcing on this case is vague: All three pieces of information plainly would have been known to all sides within the Court, even the extent to which the chief justice seemed to be “lingering” over how to frame the opinion (a strange way of putting it, given the unusually swift timeline on which the case was decided).
Fischer v. United States
First, we are told what a majority of the justices “privately concluded” after oral argument, presumably reflecting their votes at the private, justices-only conference after the argument.
Second, we learn that “the chief justice assigned the opinion to Justice Alito, according to several court insiders. But a month later, Chief Justice Roberts updated the court: Justice Alito was no longer the author. The chief justice was taking over the opinion.” Who is writing an opinion is generally decided at the conference and known throughout the justices’ chambers, so this doesn’t narrow things down much source-wise. The Times tries to promote its own role by noting that the reassignment was made four days after the first flag story, but any connection between the two is speculation; we’re not told any reason why Roberts took the opinion back from Alito.
Third, the Times reports that “soon after” the reassignment, “Justice Ketanji Brown Jackson deployed her vote to change the outcome,” and recounts what she asked Roberts to do in order to join the majority opinion. It’s not clear if her position was set forth in a written memo, but it likely was — and would have been known to the other justices in the majority, who then had to decide whether to agree to her terms.
In both Anderson and Fischer, the evidence itself is inconclusive, but the most educated guess is that the sources for Kantor and Liptak are the people likeliest to talk to them, and whose point of view is shared by the authors.
Solving this problem is another story. The Court can use stricter internal protocols to prevent draft opinions from leaking. But as the political branches have learned from many decades of hard experience, it’s effectively impossible to stop people from just talking to the press. What has protected the Court this far (with rare exceptions such as Bob Woodward’s book The Brethren) has been its institutional norms. But the more the liberal wing becomes embittered and attracts people who prefer attacking the Court’s legitimacy and decision-making process in the press to preserving the institution, the more of this we will see. You can’t save an institution without shared values and norms. The Court may be the last institution in Washington sucked down by the same maladies as the rest of our institutions, but it is not immune to the world we live in.