The latest leak of a confidential document out of the Supreme Court has not generated an internal investigation, unlike the 2022 unauthorized disclosure of the justices’ imminent decision to overturn Roe v. Wade.
The court has not responded to a request for comment about the leak of an internal document last month to The New York Times.
Court watchers are split over whether the leak of Chief Justice John G. Roberts Jr.’s memo to his colleagues is as damaging to the high court as the leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization, which ended the national right to abortion.
But court scholars say it would be wise for the court to probe the issue yet again — or, at the very least, warn colleagues and staff about the damage a leak can do.
“The court only seems concerned when an actual draft opinion is leaked, but not when intimate details about the Court’s deliberations are leaked,” said Josh Blackman, a professor at South Texas College of Law.
“I have written for years that Chief Justice Roberts has failed to do anything to clamp down on leaks. It is unsurprising then that the press keeps getting information from the Justices, their clerks, or their confidants. The Court cannot complete its business without trust.”
Last month, The New York Times obtained a confidential memo between the justices last term and apparently conducted several interviews with anonymous people inside the court.
Adam Feldman, Supreme Court scholar and creator of the Empirical SCOTUS blog, said the court remains tight-lipped about the latest leak.
“The public will probably not be provided with details about findings on who leaked information used in the story,” Mr. Feldman said in an email. “The Court is much more likely to talk about how it will confront similar issues moving forward. The Chief Justice is particularly concerned with the Court’s perceived legitimacy and so he and the other justices will continue balancing this concern against the backdrop of what information to share and how it will play out with the public.”
Mr. Blackman noted that September’s leak included several people who spoke anonymously to the Times about the court’s inner workings. He said that level of intrusion seems to be even more damaging than one or two people leaking a draft opinion.
But Ilya Shapiro, director of constitutional studies at the Manhattan Institute, said he thinks the 2022 Dobbs leak, which also saw an assassination attempt against Justice Brett M. Kavanaugh, was far worse.
“Unlike some of the commentary last month, I don’t think it’s as bad as the Dobbs leak and I don’t think the court thinks it’s as bad,” Mr. Shapiro said. “I don’t know if it affects anybody’s views.”
Carrie Severino, president of the Judicial Crisis Network and a former clerk to Justice Clarence Thomas, said Chief Justice Roberts should try to discover who spoke with The New York Times.
“Very few people would have had the kind of information that we saw,” Ms. Severino said. “Can the justices even trust their own colleagues?”
On Sept. 15, The New York Times suggested in an article that Chief Justice Roberts orchestrated wins for former President Donald Trump during the past term.
A Feb. 22 confidential memo authored by the chief justice shared with his eight colleagues criticized the U.S. Court of Appeals for the D.C. Circuit, which had greenlighted the federal election case against Mr. Trump. According to the Times, Chief Justice Roberts called it “inadequate and poorly reasoned.”
The court did go on to view the case differently, ruling in a 6-3 decision that presidents have absolute immunity for core presidential functions, presumed immunity for other actions and no immunity for nonofficial conduct.
The memo leaked to the Times is the most recent security breach facing the high court in the past two years.
CNN reported in July on internal deliberations among the justices about a challenge to Idaho’s abortion law. The reporting suggested the liberal justices had an advantage during deliberations and were able to sway the majority of their colleagues to dismiss the case.
And most notably, in 2022, a draft opinion in Dobbs suggested that the justices were poised to overturn Roe. Chief Justice Roberts initiated an investigation to find the culprit in the Dobbs leak, but no one was ever identified.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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