Chief Justice Roberts's Responsibility for the Politico Leak

My new column for Law & Crime is about the accountability-free zone Chief Justice Roberts has enabled at the Supreme Court. Here is the gist:

The Politico Leak: It’s Time for Chief Justice Roberts to Take a Look in the Mirror

Steven Lubet May 5th, 2022, 11:00 am

Supreme Court Chief Justice John Roberts is furious over the leak of Justice Samuel Alito’s draft majority opinion that appears to portend the complete demolition of constitutional abortion rights in the U.S. Calling the leak to the website Politico a “betrayal” of confidences and a “singular and egregious” breach of trust, Roberts announced that the marshal of the court would “launch an investigation to get to the source of the leak.” The prime suspects, of course, are the Court’s 36 clerks and the other justices themselves, each of whom might have had access to Alito’s draft. Roberts appears, either intentionally or otherwise, to have absolved the clerks, whom he called “intensely loyal” with and exemplary tradition of respecting confidentiality. That leaves the possibility of a rogue justice, whose possible motives – for either conservative or liberal objectives – have been the subject of much speculation in the press. If it turns out that Politico’s source was one of his colleagues, Roberts bears more underlying responsibility for the breach than he has been willing to admit.

When it comes to ethics issues, the nine justices have acted as unconstrained free agents for decades, resolving questions and making decisions entirely according to their own lights, with no acknowledged rules or collective frame of reference. Uniquely lacking a written code of conduct, there is actually no provision barring a justice from disclosing a draft opinion or any other information from the Court’s deliberations.

Chief Justice Roberts apparently thought it was just fine to proceed by consensus or tacit agreement on questions of ethics, but the leak to Politico suggests that he might well have been wrong. Justices who have come to regard themselves as the sole arbiters of their own ethical obligations may have very different priorities from their colleagues when the chips are down on matters of historic weight.

It will be some time before the leaker’s identity is discovered, if ever. Should it turn out to have been a rogue justice, it would be a stretch to call the release of the abortion opinion a “singular and egregious” breach of trust, rather than the ultimate expression of a decades-old, accountability-free regime. And if so, nobody is more to blame than the Chief.

You can read the full essay at Law & Crime.

Comments

[John Steele]

Steve, is your argument that but for the absence of a binding ethics code the leak would not have happened?

[anon]

Lubet's point is that, if a Justice appointed by a Democrat committed an ethical violation of historic significance and violated the most fundamental norms of the court, it is the fault of the Republicans; here, for appointing Roberts.

THis is because Roberts believes that an attempt to supplant the Constitution with an unenforceable ethics code would have prevented a Justice appointed by a Democrat from committing an obvious violation. (This is not to say that Lubet is correct that it was a Justice; but, that seems to be his thesis.)

[anon]

Correction: "Lubet believes."

[SL]

No, John, that is not what I am saying. There are many factors that would cause a justice to leak a draft opinion, and it is more likely to happen when there is a long history of an accountability-free environment. In an environment where everyone makes their own rules, with no accountability, some of their choices may be, shall we say, sub-optimal.

And btw, I have never advocated a "binding" ethics code for SCOTUS, which would be impossible. Rather, I believe a court-adopted code would inform the public of the justices' aspirations for their own conduct. Just look at the Ginsburg example, where she could not even bring herself to apologize for what she called "ill-considered" comments.