Chief Justice John Roberts has done the Supreme Court no favors in recent years, nothing to halt its slide into illegitimacy. The moment it was taken over by extremists—the confirmation of Trump’s final appointee, Amy Coney Barrett—he lost control. It’s their court now, thanks to the corrupt machinations of Mitch McConnell, Donald Trump, and the magnitude of dark money invested in achieving the takeover.
Roberts has tried, unsuccessfully, to contain the damage. For example, he made the decision to conduct an investigation into the leak of Justice Samuel Alito’s decision in the Dodd case, overturning abortion rights, in-house. He assigned the task to the court’s marshal, Gail Curley, instead of choosing an outside authority like the FBI—an actual investigatory agency. It’s possible that the results of an FBI investigation would be as inconclusive as the Court’s internal review, but chances are pretty darned good it wouldn’t be as shoddy.
The Court’s review couldn’t find the leaker, possibly because Curley focused on staff rather than on justices and their spouses. The very public failure of the investigation hasn’t necessarily opened floodgates of information from Court insiders about the rot in the court, but there’s been a regular drip, drip, drip of it.
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There is a secret part of the report, Annex A, which apparently includes the security lapses that sources discussed with CNN, detailing how lax security procedures are, and how frequently justices flout the existing restrictions anyway.
CNN reports that multiple sources have revealed to them that the justices have “often used personal email accounts for sensitive transmissions instead of secure servers set up to guard such information.” One source attributed it to the fact that “some justices were slow to adopt to the technology and some court employees were nervous about confronting them to urge them to take precautions.” They were “not masters of information security protocol,” one former Court staffer told CNN.
Security lapses went well beyond the use of private email. Some Court employees used off-site printers to print sensitive documents, either to avoid having the printing tracked or just for convenience’s sake. The Court’s official printers produce logs of what has been printed and by whom, but there are ways that could be circumvented: “employees who had VPN access could print documents from any computer, making it difficult to track copies.” Some of the printers also only logged the last 60 documents printed. The draft opinion that was leaked was from Feb. 10, 2022 and the investigation into the leak didn’t start until after Politico published it in May. In those intervening few months, the print log would easily have reach the 60-document limit.
The justices and staff also have the option to use use “burn bags,” paper bags where they discard of sensitive documents that are eventually disposed of by burning or shredding. But there’s no uniform rule for how the bags are handled. One source told CNN that “some colleagues would staple a burn bag shut. Others simply filled them to capacity and left them near their desks.” Others, the source said, left the bags sitting in the hallway outside their chambers, presumably for whoever to take to the basement’s secure storage. Or whoever had access to the private parts of the building and was curious what the other clerks and justices were working on.
During the pandemic, restrictions on what could leave the building were relaxed, as they needed to be to protect everyone’s health, but “there were no mechanisms to check what was actually being taken from the court.”
All of this happened under the management—mismanagement—of Roberts, whose “above the fray” approach to dealing with Court issues seems to go beyond the politicization of it all. He doesn’t want to deal with the politics, he also apparently didn’t want to deal with security.
He also doesn’t want the Court to be subject to any kind of public scrutiny, which is why he didn’t go to an outside source for the investigation. It’s probably also why he asked his friend Michael Chertoff, who happens to have received at least $1 million in contracts with the Court for security consultations, to be the guy who signed off on the report.
All this suggests that “Roberts is in a tough spot,” said South Texas College of Law professor Josh Blackman. He added that Roberts now “has no control, he has no sway.” The thing he wants to avoid—the Court being viewed as the same as every other political institution in the country—has been made inevitable by the radical decisions his colleagues are handing down and by things like this botched investigation.
“The way that investigation was handled, on terms dictated by the chief justice, just seems to have thrown the court even more into disrepute with the public,“ New York University School of Law professor Melissa Murray says. It gives every indication that Roberts didn’t want the leaker to be identified in the first place. That adds to the speculation that the leak was Alito himself, or perhaps Clarence or Ginni Thomas, and that Roberts knows it and wants that covered up.
Whatever the truth behind this leak, it has added another angle from which to view the rot in the Court. It’s pretty clear that a fix isn’t going to come from the inside. It’s going to have to be dealt with by Congress and the White House. The House isn’t going to be able to handle anything so serious in the next two years, but the Senate sure could.
Hearings on everything from this botched internal investigation to the refusal of Roberts to impose or even abide by a code of ethics are right up the Judiciary Committee’s alley. There’s plenty of room to be doing that.
Be sure to listen to The Downballot where Tiffany Muller, the president of End Citizens United, discusses her group's efforts to roll back the corrupting effects of the Supreme Court's Citizens United decision as we hit the ruling's 13th anniversary. Muller tells us about ECU's short- and long-term plans to enact serious campaign finance reform; how the organization has expanded into the broader voting rights arena in recent years; and research showing the surprising connection many voters drew between the GOP's attacks on democracy and their war against abortion rights.