The Volokh Conspiracy
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More Leaks in the NY Times About The "Supreme Court Ethics Debate"
Jodi Kantor reports on a confidential ten-page memo from Justices Gorsuch, and comments from Justices Thomas and Alito.
Another day, another leak story in the New York Times. This time, Jodi Kantor turns her attention to the Supreme Court's "ethics debate." This piece is far less earth-shattering than Kantor's prior reports. The biggest reveal is that Justice Gorsuch wrote a ten-page memo opposing any efforts to make the ethics code "enforceable." Everything else reported either reflects what the Justices have said in public, or can be reasonably inferred from what the Justices said in public. The bigger story, of course, is that leaks are still coming from the Court--and these leaks are designed to impugn and attack those on the "wrong" side of legal issues.
Let's go through it.
First, we learn that Judge Robert Dow, the Chief's Counselor, prepared the first draft:
In May 2023, the chief justice made a public concession, saying the court could take further steps to "adhere to the highest standards" of conduct. Three months later, he gave his colleagues the first draft of the code, prepared by Judge Robert M. Dow Jr., a staff member who advises the chief justice. It was modeled on the one for federal judges, according to several people familiar with the process.
Relatedly, there is an office at the Court that provides ethics advice, though some justices do not seek it "consistently." I'm not sure this fact has been reported before:
While a legal office at the court dispenses ethics advice to justices upon request, the counsel is not binding, and not all the justices have consistently sought it out, according to several people familiar with the office.
Second, the Court's progressives supported a code that can be enforced. Justices Kagan and Jackson (but not Sotomayor) have said as much in their public remarks. Sotomayor also has gotten in trouble for her book events.
All three liberals — Justices Sotomayor, Kagan and Jackson — supported enforcement.
In an apparent attempt to make a higher level of scrutiny palatable to their colleagues, Justice Kagan proposed an initial step, involving a small group of veteran federal judges, according to people familiar with the discussions. She sketched out what she called a "safe harbor" system that would give the justices incentive to consult the judges about ethics issues. Later, if the justices were criticized — say, for accepting a gift — they could respond that they had obtained clearance beforehand.
"There are plenty of judges around this country who could do a task like that in a very fair-minded and serious way," Justice Kagan said at a public appearance this year.
Third, the Court's conservatives were not interested in negotiating on this point. Here, Kantor repeats her claim about the Trump immunity decision--there was no attempt to play ball with the liberals.
That modest proposal went nowhere.
…
The three liberal justices insisted that the rules needed to be more than lofty promises. But their argument never had a chance.
Fourth, the liberals signed the code, even though it lacked any enforcement mechanism. This was the best they can do. Yet, Kagan has continued to criticize it publicly.
In the fall of 2023, Chief Justice Roberts, seemingly determined to emerge with something to show the nation, circulated a revised version of the new code and urged his colleagues to sign it, according to people from the court. It had no means of enforcement. The liberal justices decided this was the best they could get, at least for the moment. All nine members of the court signed.
Fifth, the villain of the story is Justice Gorsuch. Kantor reveals that Gorsuch wrote a ten-page memorandum opposing it.
Justice Gorsuch was especially vocal in opposing any enforcement mechanism beyond voluntary compliance, arguing that additional measures could undermine the court. The justices' strength was their independence, he said, and he vowed to have no part in diminishing it.
The justices began discussing the proposal inside their private conference room and through memos. One from Justice Gorsuch, raising questions and cautions, stretched to more than 10 pages.
This is a reveal not only of the memo, but that it was discussed in conference, and subsequent writings. For the second time in a few months, Kantor has now revealed a private correspondence from Gorsuch. In September, she wrote about Gorsuch's note to Roberts about the Trump immunity decision.
Sixth, Kantor also links Gorsuch's opposition to the code with his general opposition to administrative regulations:
Justice Gorsuch, Mr. Trump's first appointee to the court, is known for his no-one-tells-me-what-to-do streak, with warnings of government overreach and a record of libertarian, sometimes-unpredictable rulings. As a teenager, he watched his mother, then the head of the Environmental Protection Agency, face a bruising congressional investigation into the mismanagement of a toxic waste program and eventually resign.
At the time the justices were debating the ethics questions, Justice Gorsuch was working on a book asserting that Americans were afflicted with too many laws. He warned colleagues that enforcement could undermine the independence of the court by putting other figures in a position to judge the justices, according to several people familiar with the discussions. Justice Alito echoed some of those concerns.
This sort of reporting is not just inferential. She seems to be relaying how Gorsuch tied together his new book and the ethics code--or at least how those on the Court perceived Gorsuch's comments. I suspect some of Gorsuch's colleagues were none too pleased with his book talk during the conference.
Seventh, Kantor writes that Alito and Thomas said those who support the code were being political. Alito said as much to the Wall Street Journal, so nothing surprising here.
In the private exchanges, Justice Clarence Thomas, whose decision not to disclose decades of gifts and luxury vacations from wealthy benefactors had sparked the ethics controversy, and Justice Samuel A. Alito Jr. wrote off the court's critics as politically motivated and unappeasable.
Eighth, Kantor explains the deliberations about the ethics code were super-super secret:
The discussions were treated with extra secrecy because they were so sensitive, according to people from the court. Instead of the usual legal issues, the justices were contending with controversy about finances and gifts from friends, and some of the ground rules of their own institution.
But no so secret that she didn't get the goods.
Ninth, Kantor offers these comments on sourcing
To piece together the previously undisclosed debate, The Times interviewed people from inside and outside the court, including liberals and conservatives, who spoke on the condition of anonymity to discuss the proceedings and the justices' thinking. This article also draws upon public statements by the justices, who declined to comment.
It is significant that Kantor indicate she spoke to both "liberals and conservatives." Past reporting did not have this note. It is also true that the Justices "declined to comment" on the article, but that doesn't mean the Justices did not speak to Kantor.
So who leaked? Well, here is what I wrote about Kantor's article on the Dobbs leak:
Second, and I alluded to this point in my earlier post, Justice Kagan is absent from this reporting. There is absolutely nothing about what she thought or did during these deliberations. There are insights into all of the other eight Justices, but nothing on Kagan. This isn't new. Back in the day when Biskupic got the scoops, Kagan was also largely absent. I think it likely that Kagan, or at least Kagan surrogates, are behind these leaks. If Kagan is willing to publicly undermine her colleagues in a speech at the Ninth Circuit, why would she do any less off-the-record? Moreover, this entire story is consistent with Kagan's MO, and describing the Court as bending over backwards for Trump.
This passage accurately describes Kantor's most recent article, if you substitute the emphasized text with "and criticizing the code for not being enforceable."
Also noticeably absent are Justices Barrett and Kavanaugh. They appear nowhere in the story. Even as Gorsuch is thrown under the bus, and Alito and Thomas are criticized.
Anyway, Merrick Garland still has not resigned. Nor has Chief Justice Roberts.
