The supreme crisis of Chief Justice John Roberts
Chief Justice John Roberts has always been "a man more sinned against than sinning." That line from Shakespeare's "King Lear" seems increasingly apt for the head of our highest court.
Roberts was installed almost exactly 20 years ago and soon found himself grappling with a series of controversies that have rocked the court as an institution.
He is now faced with another monumental scandal, after the New York Times published leaked confidential information that could only have come from one of the nine members of the court.
By most accounts, Roberts is popular with his colleagues and someone with an unquestioning institutional knowledge and loyalty. He is, in many respects, the ideal chief justice: engaging, empathetic, and unfailingly respectful of the court's justices and staff.
Roberts has been chief justice during some of the court's most contentious times. Major decisions like overturning Roe v. Wade (which Roberts sought to avoid) have galvanized many against the court.
According to recent polling, fewer than half of Americans (47 percent) hold a favorable opinion of the court (51 percent have an unfavorable view). Of course, that level of support should inspire envy in the court's critics in Congress (18 percent approval) and the media (which only 32 percent trust).
Some, however, want to express their dissatisfaction more directly and even permanently. This week, Alaskan Panos Anastasiou, 76, was indicted with 22 federal charges for threatening to torture and kill the six conservative justices.
Another man, Nicolas Roske, 28, will go on trial next June for attempting to assassinate Associate Justice Brett Kavanaugh.
In the meantime, law professors have rallied the mob, calling for them to be more aggressive against the conservative justices and even calling for Congress to cut off their air conditioning to make them retire.
Politicians have also fueled the rage against the court. On one infamous occasion, Senate Majority Leader Chuck Schumer (D-N.Y.) declared in front of the Supreme Court, “I want to tell you, [Neil] Gorsuch, I want to tell you, [Brett] Kavanaugh, you have released the whirlwind, and you will pay the price.”
Yet, it is what has occurred inside the court that should be most troubling for Roberts. On May 2, 2022, someone inside the court leaked to Politico a copy of the draft of the opinion in Dobbs v. Jackson Women's Health Organization overturning Roe v. Wade.
It was one of the greatest breaches of ethics in the court's history. The subsequent investigation failed to produce any charges for the culprit or culprits.
Now, the New York Times has published highly detailed accounts of the internal deliberations of the court. The account seemed largely directed at the conservative justices and Roberts.
Some of the information on deliberations in three cases (Trump v. Anderson, Fischer v. United States, and Trump v. United States) had to come either directly or indirectly from a justice. Some of these deliberations were confined to members of the court.
Seeing a pattern in this and past leaks, one law professor, Josh Blackmun, even went so far as to suggest that it is "likely that [Justice Elena] Kagan, or at least Kagan surrogates, are behind these leaks."
That remains pure speculation. Yet after the earlier Dobbs leak, Roberts is now dealing with leaks coming out of the confidential conference sessions and memoranda of the justices. This occurs after Roberts pledged that security protocols had been strengthened to protect confidentiality.
The disclosure of this information to third parties violates Canon 4(D)(5) of judicial ethics: "A judge should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge's official duties."
Roberts and the court have long maintained that judicial ethics rules that apply to other federal judges are merely advisory for them.
However, some in Congress are now pushing for new binding ethics rules that could make fundamental changes to the court. Justice Kagan is supporting the ethical changes, which would allow lower court judges to render judgment on the justices. Justice Ketanji Brown Jackson also declared publicly that she does not "have any problem" with an enforceable ethics code for the Supreme Court.
A truly "enforceable" code would presumably allow the lower court judges appointed by the chief justice to compel the removal of a justice from a given case. That could flip the outcome on a closely divided court.
Given the latest leak, what would such a panel do with a justice who has breached the confidentiality of internal judicial deliberations? Under the Constitution, a justice can be removed by Congress only through impeachment. Impeachment of a justice has happened only once, in 1805, when Associate Justice Samuel Chase was acquitted.
Roberts has the demeanor and decency of a great chief justice. Despite those strengths, however, some are now wondering if he has the drive and determination to confront his colleagues on a worsening situation at the court. Many years ago, I believed that Roberts erred in failing to publicly rebuke Justice Samuel Alito for publicly displaying disagreement with President Barack Obama during a State of the Union address. Although I was sympathetic with Alito's objections to Obama's misleading statements about the Citizens United ruling, it was still a breach of judicial decorum.
Roberts is a good chief in bad times. He can hardly be blamed for the alleged abandonment of the most fundamental ethical principles by justices or clerks. Yet, the court is now in an undeniable crisis of faith. For decades, institutional faith and fealty have maintained confidentiality and civility. Once again, that tradition has been shattered by the reckless and self-serving conduct of those entrusted with the court's business.
For a man who truly reveres the court, it is an almost Lear-like betrayal of an isolated and even tragic figure. It is time for an institutional reckoning for Roberts in calling his colleagues to account.
While there have been a few prior leaks, the Supreme Court has been largely immune from the weaponized leaks so characteristic of Washington. In a city that floats on leaks, the court was an island of integrity. And more has been lost at the court than just confidentiality. There is a loss of confidence, even innocence, at an institution that once aspired to be something more than a source for the New York Times.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).
Date: |
Topics
-
The Hill - Politics
The supremely partisan court of Chief Justice Roberts
The Supreme Court has become a political clubhouse, consumed with optics, log-rolling and media leaks.Yesterday -
BBC News - Top stories
Faster justice scheme rolled out across Scotland
A pilot scheme tested in five sheriff courts resulted in the early resolution of more than 500 cases.Yesterday -
Financial Times - Business
The killers of Sander Thoenes have yet to face justice
As shocking as the violence against journalists is the impunity of the perpetratorsYesterday -
The New York Times - Business
Nike C.E.O. John Donahoe to Be Replaced by Elliott Hill
Elliott Hill, an executive who left the company after Donahoe’s appointment in 2020, will return as chief executive, Nike’s board said.Yesterday -
The New York Times - Business
Why Nike Replaced John Donahoe as Its C.E.O.
Investors are hoping that replacing John Donahoe as chief executive will lift its stock price and restore the brand’s cool factor.Yesterday -
Yahoo Sports - Sports
Aaron Rodgers brushes off awkward moment with Robert Saleh
After the Jets scored their second touchdown of the night against the Patriots, quarterback Aaron Rodgers approached coach Robert Saleh.Yesterday -
Financial Times - Business
Did central banks get the inflation crisis right?
Policymakers are lowering rates and signalling new confidence that a ‘soft landing’ is possible. But few are ready to declare victory23 hours ago -
The New York Times - Health
John A. Clements Dies at 101; His Research Saved Thousands of Babies
He identified the cause of a respiratory condition that was killing 10,000 infants a year in the United States. Then he helped design a drug that slashed those mortality rates.4 hours ago -
Yahoo Sports - Sports
John Calipari to make Arkansas debut against Kansas in charity exhibition in October
The schools announced that their men’s basketball teams would meet Oct. 25 at Bud Walton Arena in Fayetteville, Arkansas.2 days ago
More from The Hill
-
The Hill - Politics
Russian official stresses Putin was 'joking' about support for Harris
Foreign Minister Sergei Lavrov clarified Vladmir Putin’s stance on supporting Vice President Harris in the upcoming presidential election, saying the Russian president was joking. Earlier this ...22 minutes ago - Russia -
The Hill - Politics
Arizona Supreme Court rules nearly 100K can receive full ballots without citizenship proof
The Arizona Supreme Court ruled on Friday that nearly 100,000 residents can receive full ballots without citizenship proof, swiftly resolving a clerical blunder that questioned whether they could ...41 minutes ago -
The Hill - Politics
What is kratom, the herbal product banned in six states?
Kratom may be new to you, but state officials and federal regulators are already very familiar with the herbal product.56 minutes ago -
The Hill - Politics
Internet in classrooms already harmed learning — don’t make it worse by adding AI
Our students are being shaped by smartphones and other devices; that shape may be less smart than we hope for them.56 minutes ago -
The Hill - Politics
Harris accepts CNN debate invite
Vice President Harris accepted an invite from CNN for a second debate with former President Trump next month, her campaign announced Saturday. “Vice President Harris is ready for another ...1 hour ago - Kamala Harris