Why the Supreme Court’s Leak Investigation Is a Sham.

Why the Supreme Court’s Leak Investigation Is a Sham.

Dahlia Lithwick, Mark Joseph Stern — Read time: 8 minutes.

BY DAHLIA LITHWICK AND MARK JOSEPH STERN

MAY 04, 20225:24 PM

The institution’s certainty in the sanctity of its own norms is blowing up in its face.

The unprecedented leak of Justice Samuel Alito’s initial draft opinion overturning Roe v. Wade has prompted a widespread outcry among Republicans and their media allies. Many appear desperate to focus on the fact of leak, rather than the imminent demise of Roe and its effects on women and children. Some have even demanded an inquest to be followed by swift and ruthless punishment, which Chief Justice John Roberts seems eager to deliver. On Tuesday, he condemned the leak as “a singularly and egregious breach of trust” and directed the Supreme Court’s marshal “to launch an investigation into the source of the leak.”

We are confident that the marshal, Col. Gail Curley, is highly competent in her duties, which include overseeing the court’s tiny police force, paying out the justices’ salaries, and shouting “oyez.” But count us skeptical that she has the tools necessary to conduct an effective probe of the leak. That’s not her fault, but the court’s: For decades, SCOTUS has resisted adopting the bare minimum reforms necessary to implement and enforce ethics rules, confidentiality guarantees, and basic transparency necessary for maintaining and ensuring the public trust.

While the executive and legislative branches spent the last half-century establishing watchdogs to monitor and report misconduct in federal agencies, the Supreme Court did nothing. Having offered up promises that it was examining its internal codes and procedures, it has still done nothing. And when critics in the press and legal academy point to court failures in transparency and housekeeping, from the shadow docket to spousal involvement in cases before the court, some of the justices opt to insult and threaten the critics, as opposed to putting their own house in order.

The Supreme Court’s absolute and unwavering certainty in the sanctity of its own norms and protocols has now blown up in its face in ways that may damage the institution for years if not decades.

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Most Americans, we suspect, assume that there is some procedure to enforce both internal rules and federal laws within SCOTUS. There is not. If a justice commits an ethical breach, including a violation of the federal law mandating impartiality, there is literally no recourse (short of impeachment). There is no way to force a recusal; that decision lies with individual justices. If an employee witnesses malfeasance, there is no mechanism to report it—no tip line, no whistleblower protection, no chain of command to ensure that the matter is investigated. If that employee dares to disclose it anyway, they can be fired with impunity, as can other staff who experience discrimination or retaliation.

The court sets its own standards then prevents anyone, inside or outside the institution, from ensuring that they are followed. It is not subject to FOIA or any other public records laws, and the justices have complete control over the fate of their private papers. (Some choose to destroy them after retirement.) The institution is a black box designed to preempt any possibility of transparency or accountability.

[Read: What Can the Chief Justice Do Now?]

No other branch of government functions this way. The rest of the federal judiciary is wildly unaccountable, but compared to the Supreme Court, it is a model of integrity: Lower court judges are bound by a code of conduct, which the Judicial Conference administers (with mixed results). This code does not apply to SCOTUS, whose members are, for the most part, above the law. For its part, Congress began placing inspectors general throughout executive branch agencies in the 1970s to monitor waste, fraud, and abuse. There are now at least six dozen inspectors general across the federal government, in executive and legislative agencies both major and obscure. These appointees, who are given substantial independence, continually investigate their own workplaces and workforce to ensure that they’re upholding their legal obligations and statutory mission. The inspectors’ law enforcement powers vary by department, but many are staffed with special agents who are empowered to conduct criminal probes. They can also receive tips on misconduct and shield whistleblowers from retaliation.

The system is far from perfect, as Donald Trump illustrated when he purged several inspectors general in 2020. But it is vastly superior to no system at all. As the court’s investigation progresses, consider that there is nothing to stop the Supreme Court from setting up its own internal, independent watchdog right now. Or from asking Congress for funds to create a judicial inspector general. The court’s current 190-member police force specializes in screening visitors and overseeing protests; its officers are very competent and adept at those tasks but woefully unprepared for any meaningful investigation into their own colleagues. Curley, the marshal, has no background in the kind of massive investigation that the chief justice demands. And since it appears the leaker violated no law, neither the Justice Department nor the FBI has any clear reason to jump in.

Good faith efforts to understand the court’s unique position in the constitutional structure and need for independence, such as the months-long commission on Supreme Court reform, came up with dozens of suggestions about fixes the court could institute tomorrow, from meaningful disclosure requirements to binding ethics obligations. Those straightforward recommendations— not around court packing or term limits or jurisdiction-stripping, but the hardening of norms that apply to other public officials—are then characterized as vicious attacks on the independence of the judicial branch by some of the very same conservatives screaming today about prosecuting the leaker to the fullest extent of the criminal law.

Guess what? The leak came from inside the house. You wouldn’t need to howl and scream about lifetime imprisonment for the leaker if the court had rules and protocols and procedures and oversight and all the enforcement mechanisms to which every other government official is subject. It’s beyond ironic that Republican senators screaming that someone must pay for the leak are the very same people who insist that nobody dares police the court except the court.

In his draft opinion Alito is very clear that in his view, “we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” Ironically, no justice is more easily angered when the public comments on or critiques the work of the court. The public reaction this week isn’t just shock at the court’s work product overruling Roe. It’s that a court entrusted with protecting fundamental liberties operates under a set of non-rules that are vaporous at best and easily exploited at worst. The truth is that the court, as it has been doing for quite some time now, served to undermine itself. A handful of simple correctives—meaningful transparency, ethics and conduct reforms— could have been instituted decades ago. The consequences of failing to do so are starting to become too humiliating and dangerous for the court to ignore.

We take no comfort or joy in the knowledge that the Supreme Court has less public legitimacy today than it did last week, or that the justices’ trust in one another is eroded yet again by what Justice Sonia Sotomayor characterized as the “stench” of politics that emanates from the building. But the fact is that the court did nothing in the face of ample evidence that it needed to enshrine mandates of transparency and ethical conduct into its own rules. Did the leaker violate the most fundamental norms of secrecy and privacy? Yes. But wailing that the court should continue to be allowed to police itself as the court utterly fails to police itself is not the answer.