The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Supreme Court Leaks Are Unfortunate, But This Wasn't A Big Deal
A response to my co-blogger Josh Blackman.
My friend and co-blogger Josh Blackman paints a picture of a Supreme Court in deep crisis, perhaps all the fault of Chief Justice Roberts. As Josh sees it, the Supreme Court Justices may be trapped in a toxic relationship, with no choice to be whistleblowers to let the public know of just how terrible the Supreme Court under Chief Justice Roberts has become. Josh argues that Chief Justice Roberts must himself take the steps to salvage the situation, including personally interviewing every single employee at the Supreme Court (probably around 200 people) to find every leaker. Josh gives the Chief Justice one year to turn the ship around or resign: "If by next July, Roberts cannot step up to this challenge—either through his own ineptitude or his own malfeasance—then he should step down from the Court."
I see this very differently, to put it mildly. I thought I would say why.
(1) We seem to get various kinds of leaks from the Supreme Court every few years. It's really unfortunate. I think the Court would be better served if these leaks didn't happen. But they happen, and they have happened, from time to time. Unfortunate, but not the crisis that Josh suggests.
(2) The leaks this time were really boring. I mean, I get that everyone is fascinated by any leak from the Supreme Court. But the leaks from Joan Biskupic's series struck me as the least revealing, least interesting leaks I can recall. They were mostly about what the Justices circulated amongst each other (stuff intended for every Justice and every law clerk) about their votes in various cases that ultimately became public. Off the top of my head, I don't think we learned anything particularly revealing or unexpected. Josh paints a contrasting picture of a Supreme Court "tear[ing] itself apart," a "toxic" situation, a "crisis of confidence,""a whirlwind" that is "demolish[ing] the marble palace from the inside." But I don't see any of that. It seemed like, well, kind of a normal Term.
(3) If I understand Josh correctly, his view is that if the Chief Justice can't stop other Justices from leaking, Roberts himself must step down. That is so, Josh argues, because it is "his Court," and as its leader, he is ultimately responsible. But it seems to me that each Supreme Court Justice has agency here. The Associate Justices don't work for Roberts. He didn't hire them, and he can't fire them. And if one or more of them are hurting the Court by leaking, that is on them, not on the Chief Justice. To be sure, the Chief Justice has a formal institutional role that other Justices don't have. But I don't see why that should make him responsible for their behavior.
