Legal experts warn that latest Supreme Court leaks are ‘enormously destructive’

Following revelations of private memoranda and conversations between Supreme Court justices published in the New York Times, legal experts are warning that such sensitive leaks are “destructive” to the high court. 

The New York Times reported that internal memos and deliberations that they claimed showed Chief Justice Thomas as having “molded” the outcomes of three major cases the court considered dealing with Jan. 6 rioters, and granting former President Donald Trump certain immunity for presidential acts. 

Roberts wrote the majority in the decisions, and the report claims that he “provided crucial support for hearing the historic [immunity],’ and made last minute and unexplained changes to authorship of the politically charged opinions. 

The leak follows the unprecedented leaked draft of the Dobbs opinion which overturned Roe v. Wade in 2022, and a concerted effort by Democratic lawmakers and the Biden administration to make sweeping changes to the court and ethics enforcement. 

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John Roberts, Jr., Chief Justice of the United States Supreme Court arrives on the House floor before President Joe Biden’s State of the Union address to the joint session of Congress in the U.S. Capitol on Thursday, March 7, 2024.  ((Bill Clark/CQ-Roll Call, Inc via Getty Images))

Republican lawmakers, such as Senators Lindsey Graham, R-S.C. and John Kennedy, R-La., claim those efforts are politically motivated to delegitimize one the court now sits with a majority of Republican-appointed justices.

Some legal experts say this latest leak is part of that effort to undermine the Supreme Court. 

“I think it’s enormously destructive to the court when people inside the court disclose to the press confidential memoranda, confidential emails and what appears to even be remarks made at the justices’ conference,” James Burnham of King Street Legal and former senior Justice Department official told Fox News Digital. 

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Chief Justice of the United States John Roberts arrives for the Senate impeachment trial of US President Donald Trump at the US Capitol in Washington, DC, January 21, 2020.  ((Photo by SAUL LOEB / AFP) (Photo by SAUL LOEB/AFP via Getty Images))

“It’s destructive because the justices can’t be candid with each other if they think that anything they say could end up in the New York Times. And that means they’re going to speak less to each other. It means they’re not going to be able to deliberate with the same openness that they historically have, and it ultimately undermines the court’s decision making,” he added. 

“It reads to me like somebody is trying to cast a negative light on the Chief Justice and the other justices in the majority for what I think was a plainly correct and brave decision,” he said.

Carrie Seveino, president of the Judicial Crisis Network, said that “if there is someone on the Court who deserves censure for being overly political in this case, it’s the individual who leaked” the “highly confidential internal” documents.

She added that the incident “is of a piece with the continued left-wing PR campaign against the Court.”

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The nine U.S. Supreme Court justices pose for their official portrait at the East Conference Room of the Supreme Court building on October 7, 2022, in Washington, DC.  ((Photo by Alex Wong/Getty Images))

“It’s an attempt to smear the Court as an institution, and as part of that, some justices have been targeted more than others,” she said. 

John Shu, a constitutional attorney who served in both Bush administrations, Shu says he believes the leaks are politically motivated, and are most likely designed to keep Roberts anchored in the center or perhaps push him towards center-left in the upcoming term, especially if Trump is elected this November.

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“Because he is the Chief Justice, he gets to assign opinions when he’s in the majority, which is much of the time, and he has administrative power that the other justices do not have,” said Shu. “And much like the President is the embodiment of Article 2, the Chief Justice is the embodiment of Article 3.”

“It’s really scary that yet another norm has been shattered, violating the sacred confidentiality of deliberations and the opinion drafting process,”Shu said.