A third incident of Supreme Court leaking since the
Dobbs decision. If there were ever any earlier SCOTUS leaks, I don't remember hearing about them.
The Supreme Court was hit by a flurry of damaging new leaks Sunday as a series of confidential memos written by the chief justice were revealed by
The New York Times.
The court’s Chief Justice John Roberts was clear to his fellow justices in February: He wanted the court to take up a case weighing Donald Trump’s right to presidential immunity—and he seemed inclined to protect the former president.
[...]
[H]is handling of the cases surprised even some other justices on the high court, across ideological lines.
Daily Beast
The chief justice responded by deploying his authority to steer rulings that benefited Mr. Trump, according to a New York Times examination that uncovered extensive new information about the court’s decision making.
[...]
The chief justice’s Feb. 22 memo, jump-starting the justices’ formal discussion on whether to hear the case, offered a scathing critique of a lower-court decision.
[...]
The chief justice tore into the appellate court opinion greenlighting Mr. Trump’s trial, calling it inadequate and poorly reasoned. On one key point, he complained, the lower court judges “failed to grapple with the most difficult questions altogether.” He wrote not only that the Supreme Court should take the case — which would stall the trial — but also how the justices should decide it.
“I think it likely that we will view the separation of powers analysis differently” from the appeals court, he wrote. In other words: grant Mr. Trump greater protection from prosecution.
NYT
What Sunday’s Kantor/Liptak piece drives home is that Roberts wasn’t
pushed to go that way; he pushed the Court—in ways that suggest not that Roberts was
indifferent to public opinion (as some of his defenders have argued), but that he radically
misjudged what that public opinion would be.
Steve Vladeck
Or maybe Roberts is in the MAGA bubble, where opinion is different than America at large.
Kantor and Liptak’s reporting is based on a whole bunch of different leaks of what are usually closely held internal deliberations. It’s not just the Roberts memo (something we usually have no awareness of until the justices’ papers become available years, if not decades, after their deaths); it’s also the very specific details on timing, which Roberts clerks were working on the immunity opinion, and lots of other tidbits that could come only from inside a very small group of individuals. None of this, in my view, holds a candle to the Dobbs leak—a draft majority opinion leaked to the press and public while it is being debated and finalized. But this story wouldn’t have been possible without both excellent reporting by Kantor and Liptak and a whole lot of dissatisfaction inside the building—perhaps from some of the justices themselves.
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I’m struck by how much pieces like this one reflect an overdue shift in the tenor of Supreme Court coverage—toward pieces that are less about summarizing the Court’s carefully manicured output and more about the behind-the-scenes stories on how the Court is reaching its decisions.
[...]
[I]t was important to Roberts for the immunity case to be heard this term—even if he knew which way it was going to come out. It was important to Roberts for the Colorado case to be unanimous—until he couldn’t get the justices to his left to go as far as he wanted. It was important to Roberts to take Alito’s name off of Fischer—even though it wasn’t important enough to leverage him to recuse, or to so much as acknowledge, at any point in his majority opinion, the deeply fraught, conspiracy-laden narrative into which the Court was necessarily wading. Ultimately, it’s not high constitutional politics driving the bus; it’s optics. And as these episodes underscore, those just aren’t the same thing.
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And then there’s the remarkable push from at least Justices Thomas and Gorsuch (the story doesn’t mention Alito on this point) to not even hear the Trump immunity case this term.
Remarkable? Surprising!
Kantor and Liptak attribute to Thomas a concern over the Court being dragged into political battles; and to Gorsuch a concern about giving the parties time to fully develop their arguments. Both of these are, frankly, bollocks. Once the Court made up its mind to intervene (as, apparently, it had by no later than the day after Roberts circulated his memo), there was no way to not get involved in a “political battle.” [...] The timing the Court ultimately adopted—holding argument in April and a decision before the summer recess—was a compromise between the Special Counsel’s push to have the Court move even faster (as it had done as recently as … the Colorado ballot disqualification case, where the same justices had no trouble getting dragged into a political battle) and Trump’s desire to delay as long as possible. That Thomas thought that delay wouldn’t be seen as a profoundly political move is … alarming. As for Gorsuch and preferring to give the parties time to fully develop their arguments, well, that would be more persuasive from a justice who wasn’t so regularly voting to grant certiorari before judgment (as in the EMTALA cases) and/or emergency relief—deciding major statutory and constitutional issues without the usual percolation.
[...]
No one in Kantor and Liptak’s reporting is arguing for even a modicum of judicial restraint; and none of the justices to the right of Justice Barrett seem at all worried about the institutional impact of continuing to divide so transparently along partisan and ideological lines in the Court’s highest-profile (and themselves politically charged) rulings. What all of that suggests is that this is all going to get worse before it gets better—and that any arguments that the Court has somehow gotten past the nasty, bitter, and highly charged infighting that has characterized the past few terms are wanting for any basis in reality. This Court isn’t going to fix itself.
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