The Supreme Court has a plumbing problem: leaks all over the place. In May 2022, a traitor within the Supreme Court family leaked a draft opinion in Dobbs v. Jackson Women’s Health Organization, the case that properly restored the issue of abortion to its rightful place: the states.
Outrage erupted from leftists after the leak. Justices received death threats, and protesters even came to justices’ homes. Some degenerates hit a new low by agitating for protests at the school of Justice Amy Coney Barrett’s children.
The direst consequence came about when Nicholas Roske, a deranged, gender-confused leftist, tried to assassinate Justice Brett Kavanaugh at the justice’s home with his family present. Judge Deborah Boardman, a rabid leftist Biden appointee, made the Roske affair even worse when she imposed a pathetic sentence of eight years, about a quarter of what the prosecution had requested, because Roske — who calls himself Sophie — will have to serve his time in a men’s prison (as he should).
The leaker has not been found, but Chief Justice John Roberts has acted to curtail future leaks by implementing a policy requiring clerks and Supreme Court staff to sign nondisclosure agreements. Employees are forbidden from disclosing confidential material, such as drafts of opinions and memoranda through which justices communicate during the deliberative process. It is shameful that we have sunk so low that these agreements are necessary. Every clerk and SCOTUS employee takes a solemn oath. That oath meant nothing to the scoundrel who leaked the Dobbs draft. It also means nothing to the individuals who leak material about court deliberations to the media. Chief Justice Roberts’ heart is in the right place, but he can only do so much.
How will these agreements be enforced? Will the Supreme Court sue anyone who leaks? All justices may well need to recuse under 28 U.S.C. § 455 if such a suit were to reach the Supreme Court. Would the justices issue injunctions to prevent leaks? Without enforceability mechanisms, agreements are mere paper tigers.
Those who place no value on an oath and who have seen no accountability for the Dobbs leaker may well decide that the risk of leaking is worth it. First, they may not get caught. The Dobbs traitor has remained at large for more than three years. Second, what would the consequences be were a leaker caught? Because of federalism, the Supreme Court cannot force states, for instance, to disbar leaking former clerks who are licensed to practice in those states.
Congressional intervention is appropriate in this area. Criminal penalties are warranted for these leakers. The corrupt bureaucrat who leaked President Trump’s tax returns during his first term received five years in prison. The same punishment should befall any Supreme Court leakers, if not a harsher one. The illegal disclosure of President Trump’s tax returns was disgraceful, but it did not nearly cost a justice and his family their lives.
The agreements also do not bind justices, who can leak freely to the media. Chief Justice Roberts can do little about a justice who does so. Congress can, however, starting with impeachment and removal from office. The criminal penalties that apply to leakers should include justices. Justices must not face criminal liability for their decisions; those acts are absolutely immune from criminal and civil liability. There should be no immunity, however, if a justice violates his or her sacred oath by leaking confidential information for any reason. The horrific episode involving Justice Kavanaugh amply justifies these harsh remedies.
The Supreme Court has august power. From our Second Amendment rights to abortion to affirmative action, the justices shape our society in countless ways. Deliberation is an essential component of the judicial process. We have nine justices so that the court reaches decisions after careful discussion. Justices should feel free to deliberate without fear that their communications will wind up on the front page of the paper. Justices should not be deluged by protesters at their homes, a crime that the Biden administration shamefully refused to prosecute pursuant to 18 U.S.C. § 1507.
Justices’ children should not have their school days ruined by maniacs who disagree with the court’s decisions. Justices and their families should not be forced into a situation where they need 24-hour security because a leaker is angry at a pending decision. Justices and their families should never have to fear for their lives because of vermin like Roske, who wanted to kill three justices to reshape the balance of the court. The judiciary is essential to the republic, and Chief Justice Roberts has taken an excellent step in safeguarding the hallowed deliberative process. More, however, can and must be done.
Will Chamberlain is currently Senior Counsel at the Article III Project and the Internet Accountability Project. Follow him on X at @willchamberlain.
