By Graham Streich
Mar 13, 2023, 8:15 AM

During a contentious U.S. Senate Judiciary hearing on March 1, 2023, Senators Mike Lee (R-UT) and Ted Cruz (R-TX) pressed Attorney General Merrick Garland about prosecuting those who protested outside several Justices’ homes following the May 2022 Dobbs leak. With the United States Supreme Court nearly halfway through its current term, the heated exchange exemplifies the politicization of our Nation’s three branches and highlights the growing calls for Supreme Court reform.

Analyzing the Dobbs Leak and the Subsequent Investigation

On May 2, 2022, Politico published Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization,¹142 S. Ct. 2228 (2022). showing that the Court was poised to overturn the constitutional right to abortion recognized in 1973’s Roe v. Wade.²410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). A day after the release of the leaked opinion, Chief Justice Roberts directed the Court’s Marshal to investigate. The investigators then interviewed ninety-seven employees under oath and reviewed the relevant information technology (“IT”) systems. In January 2023, the Court released a report addressing the leak. Despite an extensive investigation by some measures, the report ultimately did not identify who leaked the draft opinion.³Glenn Fine, a former Inspector General in the Department of Justice, argues that it was a “Alice in Wonderland investigation” because, in part, the Marshal was “conflicted from the start” from “the necessary independence to conduct the investigation.” Specifically, Fine contends that the Marshal “was asked to investigate her bosses, the justices, who are in the universe of potential leakers . . . . [and that] [t]hey supervise her and can fire her.”

The Court’s statement accompanying the report called the leak a “grave assault” on the judicial process, and conveyed the unanimous support among the Justices for tightening confidentially in their internal deliberations.  The leak was neither confirmed to be intentional nor accidental, and the report did not identify the responsible party by a “preponderance of the evidence.”  In a statement accompanying the report, the Court listed their “obligations as judges”—including accepting submissions from parties, engaging in oral arguments, and rendering final decisions—before emphasizing how confidential deliberations are crucial for judicial proceedings.⁴Justice Powell made these arguments in a 1997 article the Marshal cited when discussing Court employee’s confidentiality requirements. See Lewis F. Powell, Jr., What Really Goes on in the Supreme Court, in  Judges on Judging:  Views from the Bench 84 (David M. O’Brien, ed., 1997).  According to the Court, these confidential internal deliberations allow for candid discussion, provide opportunities to improve or reconsider their views, and strengthen collective judgment, making “the integrity of judicial proceedings depend[ant] on the inviolability of internal deliberations.”

Along with the Justices, eighty-two employees had access to the draft Dobbs opinion.  But everyone interviewed denied leaking the draft.  The investigators scrutinized employees’ connections with Politico, as well as their “legal research history” and behavior.  At least thirty-four employees printed the Dobbs opinion, and several employees did not follow the Court’s confidentiality policies, namely by sharing the opinion and vote count with partners or spouses.  Ultimately, the interviews provided very few leads into how the leak occurred.

Rather than provide more concrete answers, the report focused on confidentiality protocols and remedial measures. After detailing how long-standing tradition, federal laws, and the Court’s confidentiality policies prohibit publicly disclosing draft opinions, the report provides recommendations to prevent future leaks. The Marshal’s seven public recommendations⁵The Marshal’s detailed recommendations in “Annex A” were not released to the public. focused on preventing future risks, particularly by restricting who has access to sensitive materials, improving the Court’s IT systems, clarifying the Court’s confidentiality policies, and ensuring employees understand confidentiality laws and policies.⁶Notably, before the report’s release, the Court began implementing its recommendations by increasing sensitive documents’ security and control. Beyond Court-internal recommendations, the Marshal generally recommends “consideration should be given” to supporting bills introduced in Congress that would expressly prohibit disclosing non-public case-related information to anyone outside the Court.⁷The Chief Justice also had former Judge Michael Chertoff review the Marshal’s investigation. Chertoff complimented the Marshal’s investigative process as transparent and cooperative. While he could not identify further investigative measures, Chertoff recommended that the Court restrict the distribution of sensitive documents via hard copies and emails, utilize information rights management to control sensitive document, and limit the access of sensitive information on mobile devices. Like the Marshal’s recommendations, the four specific measures Chertoff recommend focus on preventing future leaks.

The Calls for Change: Adopting an Ethics Code and Reforming the Court

The congressional response to the leak has been mixed. For example, in May 2022, Representative Mike Johnson (R-LA) introduced legislation that would explicitly criminalize knowingly disclosing confidential information to deter future leaks.⁸Leaker Accountability Act of 2022, H.R. 7917, 117th Cong. (2022). A day after the Court release its report, Representative Johnson reintroduced the bill in the 118th Congress. Leaker Accountability Act of 2023, H.R. 424, 118th Cong. (2023). And in June 2022, Senator Bill Cassidy (R-LA) introduced a bill with similar provisions.⁹Stop Supreme Court Leakers Act of 2022, S. 4455, 117th Cong. (2022). In early February, Senator Cassidy reintroduced the bill in the 118th Congress. See Stop Supreme Court Leakers Act of 2023, S. 251, 118th Cong. (2023). But, other members of Congress, including Representative Henry Johnson (D-GA), Senator Sheldon Whitehouse (D-RI), and Senator Chris Murphy (D-CT), have introduced legislation that would create binding ethical rules for Justices.¹⁰Supreme Court Ethics, Recusal, & Transparency Act of 2022, H.R. 7647, 117th Cong. (2022); Supreme Court Ethics, Recusal, & Transparency Act of 2023, S. 259, 118th Cong. (2023); Supreme Court Ethics Act of 2023, S. 325, 118th Cong. (2023).

Even before the leak, President Biden appointed a bipartisan commission, the Presidential Commission on the Supreme Court of the United States, to, in part, evaluate the “growing chorus of reform proposals.”  Because independence is, of course, part of the Court’s constitutional design,¹¹See The Federalist No. 49 (James Madison) (“The [Judiciary], by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions.”); The Federalist No. 78 (Alexander Hamilton) (“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. . . . Limitations . . . can be preserved in . . . [the] courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”). regulating the Court is a “riddle.”  For example, a congressionally created ethics code for the Court raises two primary challenges:  First, who will write and enforce the ethics code—Congress, the Justices, or some other body?  And second, whether a congressional mandate would violate the Constitution’s separation of powers?  If so, this could require amending the Constitution to mandate an enforceable ethic code rather than enacting it through the normal legislative process.

Pressure on the Supreme Court for ethics reform has increased since the Court released its report on the Dobbs leak.  In February 2023, the American Bar Association’s (“ABA”) policymaking division, the House of Delegates, approved a resolution calling for the Court to adopt a binding ethics code “comparable to the code of conduct for all federal judges.”  An ABA report accompanying the resolution stated, “[t]he absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court.”  The ABA’s position arguably contrasts with the Court’s statement that the integrity of the judicial process depends on confidential deliberation.

Other advocacy organizations, legal scholars, and news outlets have also framed ethics reform as essential for restoring the Court’s legitimacy.¹²With public trust in the Court at historic lows, several organizations, including Politico, the Brennan Center for Justice, and Associated Press, questioned the Court’s steadfast secrecy despite its decreasing legitimacy.  While the Justices have apparently discussed their ethics code over the past four years, they have not agreed—suggesting outside intervention may be necessary.  Several legal scholars contend that a binding ethics code for Justices would enhance the public’s trust in the Court.  Other reforms, like term limits, could arguably depoliticize and “bring greater stability” to the Court and, in turn, restore confidence in its independence.  While term limits, for example, have garnered bipartisan support, legal scholars disagree over whether a constitutional amendment is required.¹³For a thorough discussion on implementing term limits for Justices, see Kara King, Depoliticizing the Supreme Court Through Term Limits:  A Worthwhile Reform Effort, 1 Fordham L. Voting Rts. & Democracy F. 78 (2022).  Although political polarization makes reform difficult, broad support for commonsense accountability measures could make it difficult for politicians across parties to oppose reforms.

With the public’s trust in the Supreme Court plummeting, the Dobbs leak and the Court’s decision to overturn a landmark decision, which most Americans supported, further stoked the Court’s legitimacy crisis. Nonetheless, even if Congress were to pass legislation on an ethics code, the enforcement issue would remain. Indeed, the Nation not only relies on the Court “as the apex of the judicial branch,” but, by definition, the Court is the highest authority. Yet this authority within the Nation’s political system is both “immense and fragile.” If the Court continues to diverge from where the majority of the American people are, it should do so in a way that does not appear undeniably partisan. This basis for trust is undoubtedly crucial to the Court’s ability to exercise the vast power it maintains.

References:

• 1
  142 S. Ct. 2228 (2022).
• 2
  410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
• 3
  Glenn Fine, a former Inspector General in the Department of Justice, argues that it was a “Alice in Wonderland investigation” because, in part, the Marshal was “conflicted from the start” from “the necessary independence to conduct the investigation.” Specifically, Fine contends that the Marshal “was asked to investigate her bosses, the justices, who are in the universe of potential leakers . . . . [and that] [t]hey supervise her and can fire her.”
• 4
  Justice Powell made these arguments in a 1997 article the Marshal cited when discussing Court employee’s confidentiality requirements. See Lewis F. Powell, Jr., What Really Goes on in the Supreme Court, in  Judges on Judging:  Views from the Bench 84 (David M. O’Brien, ed., 1997).
• 5
  The Marshal’s detailed recommendations in “Annex A” were not released to the public.
• 6
  Notably, before the report’s release, the Court began implementing its recommendations by increasing sensitive documents’ security and control.
• 7
  The Chief Justice also had former Judge Michael Chertoff review the Marshal’s investigation. Chertoff complimented the Marshal’s investigative process as transparent and cooperative. While he could not identify further investigative measures, Chertoff recommended that the Court restrict the distribution of sensitive documents via hard copies and emails, utilize information rights management to control sensitive document, and limit the access of sensitive information on mobile devices. Like the Marshal’s recommendations, the four specific measures Chertoff recommend focus on preventing future leaks.
• 8
  Leaker Accountability Act of 2022, H.R. 7917, 117th Cong. (2022). A day after the Court release its report, Representative Johnson reintroduced the bill in the 118th Congress. Leaker Accountability Act of 2023, H.R. 424, 118th Cong. (2023).
• 9
  Stop Supreme Court Leakers Act of 2022, S. 4455, 117th Cong. (2022). In early February, Senator Cassidy reintroduced the bill in the 118th Congress. See Stop Supreme Court Leakers Act of 2023, S. 251, 118th Cong. (2023).
• 10
  Supreme Court Ethics, Recusal, & Transparency Act of 2022, H.R. 7647, 117th Cong. (2022); Supreme Court Ethics, Recusal, & Transparency Act of 2023, S. 259, 118th Cong. (2023); Supreme Court Ethics Act of 2023, S. 325, 118th Cong. (2023).
• 11
  See The Federalist No. 49 (James Madison) (“The [Judiciary], by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions.”); The Federalist No. 78 (Alexander Hamilton) (“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. . . . Limitations . . . can be preserved in . . . [the] courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”).
• 12
  With public trust in the Court at historic lows, several organizations, including Politico, the Brennan Center for Justice, and Associated Press, questioned the Court’s steadfast secrecy despite its decreasing legitimacy.
• 13
  For a thorough discussion on implementing term limits for Justices, see Kara King, Depoliticizing the Supreme Court Through Term Limits:  A Worthwhile Reform Effort, 1 Fordham L. Voting Rts. & Democracy F. 78 (2022).