The latest leaks about the Supreme Court’s internal deliberations on three major cases involving former President Donald Trump could be coming from a high level member of the minority, former clerks and long time court observers told the Daily Caller News Foundation.
Drawing on “details from the justices’ private memos, documentation of the proceedings and interviews with court insiders, both conservative and liberal,” a Sunday report published by The New York Times offered a window into the the justices’ decision making process on three major cases, including Trump v. United States, where the Supreme Court held former presidents are immune from prosecution for official acts taken in office. The report mainly targets Chief Justice John Roberts, highlighting his efforts to secure a consensus on controversial cases.
“This is another disturbing leak from the Court, and Congress should look into it because clearly a member of the minority is conspiring with the Left to destroy the Court,” JCN President Carrie Severino told the DCNF.
Justices vote on cases and share their views during a conference after oral arguments that is closed to all staff, including law clerks. Only the justices are allowed in the room, according to Supreme Court protocol.
In a Feb. 22 memo from Roberts to his colleagues, which was obtained by the NYT, Roberts critiqued the lower court for failing to “grapple with the most difficult questions altogether” in Trump’s presidential immunity appeal. He argued they should take up the case.
While some conservative justices wanted to schedule the case for the next term, Roberts supported liberal justices’ wish to hear it during the current term, the NYT reported.
In Fischer v. United States, Roberts took over authoring the opinion he had initially assigned to Justice Samuel Alito, according to the NYT. The Supreme Court held in Fischer that the DOJ interpreted an obstruction statute used to charge hundreds of Jan. 6 defendants too broadly.
In the Trump v. Anderson case, which considered Colorado’s decision to remove Trump from the ballot, Roberts wanted to issue a unanimous, unsigned opinion. In the final opinion, he sided with conservative justices who wanted to find that only Congress can enforce the “insurrectionist ban” in Section 3 of the 14th Amendment, leaving the liberal justices and Justice Amy Coney Barrett to write a concurrence voicing disapproval of the majority going too far, according to the NYT.
South Texas College of Law Houston professor Josh Blackman argued in Reason that the New York Times’ report was “far worse than the Dobbs leak” in 2022, when Alito’s draft decision overturning Roe v. Wade was leaked to Politico. He noted the latest leaks are “systematic and thorough,” requiring insights from “so many different people.”
“Moreover, all of this comes after the Dobbs leak when Chief Justice Roberts (apparently) put strict limitations on access to Court information,” he wrote. “What did all of those measures accomplish? Apparently not much.”
Blackman wrote that he believes Justice Elena Kagan’s absence from the reporting suggests she or her surrogates are behind the 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?” he wrote. “Moreover, this entire story is consistent with Kagan’s MO, and describing the Court as bending over backwards for Trump.”
Kagan publicly called for an enforcement mechanism for the Supreme Court’s ethics code in July, suggesting at the 9th Circuit judicial conference that lower court judges could enforce the code, according to CNN. Democrats have repeatedly called for an enforcement mechanism since the Supreme Court adopted a code of ethics last year.
“It’s quite obvious that Democrat justices are very bitter about being in the minority for the rest of their lives, so they just want to destroy the legitimacy of the Court,” Article III Project founder Mike Davis wrote on X. “(Looking at you, Elena, after your unhinged, public, and unconstitutional call for lower-court judges to supervise the Court’s legal conflicts.)”
Ilya Shaprio, director of constitutional studies at the Manhattan Institute, told the DCNF the leaks are “a further reflection of the left’s discontent at having lost control of the Court.”
“This is all part of a campaign to smear and pressure justices, and ultimately to delegitimize one of the few remaining institutions that hews to the rule of law and can resist progressive fascism,” Shaprio said.
The Supreme Court’s public information office did not respond to a request for comment on whether there would be investigations into the new leaks.
