Robert J. Cordy and Brackett B. Denniston III
BridgeTower Media Newswires
The recent leak of a preliminary draft of an important Supreme Court decision is shocking. Nothing similar has happened since at least 1852.
In a larger context, this egregious assault on the integrity and independence of the court is but the latest act in a campaign to bully and discredit the Supreme Court, a conscious attack on its role as the final arbiter of the meaning and validity of actions of the president and Congress, and as the place of last resort to review the conduct of state courts.
Unlike other attacks, this one came from within, further damaging credibility and focusing attention on the Supreme Court’s need to get its own house in order.
Whether it’s the Senate’s election year refusal to even consider the nomination of Judge (now-Attorney General) Merrick Garland; proposals to “pack” the court by expanding its membership for the first time since the mid-1800s; or accusations that the court is “stolen,” “illegitimate” or a “tool” of one political party, this flood of partisan assaults on the court’s integrity and independence threatens the Constitution’s carefully designed architecture of the federal government.
Now, politically motivated attacks on the Supreme Court aren’t just coming from the outside. The most likely culprit in the leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization is an employee of the court, possibly a law clerk.
Coming soon after the public learned about texts from Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, urging former Trump Chief of Staff Mark Meadows to work to overturn the results of the 2020 presidential election, the leak highlights that the justices, unlike all other federal judges, are not subject to any ethics rules.
Law clerks who work for federal judges other than Supreme Court justices must abide by the Code of Conduct for Judicial Employees, which is adopted by the Judicial Conference presided over by the chief justice. However, the code does not apply to the Supreme Court. All we know is that Supreme Court law clerks sign confidentiality pledges each year and receive a stern lecture from the chief justice. We have no idea what’s in those pledges — and we should.
The integrity and independence of the judicial branch and its critical constitutional role as a buffer against the political passions of the moment must be defended.
We have seen the consequences of the Supreme Court being intimidated or ignored: decisions upholding racial segregation, the imprisonment of Americans of Japanese descent, and President Andrew Jackson’s brazen refusal to respect a Supreme Court decision prohibiting the forced and deadly relocation of several Native American tribes.
And we have benefited from the consequences of judicial independence — desegregation and the general advancement of individual liberties being but two examples.
The court’s decisions aren’t in the main implemented by force. As Justice Thurgood Marshall wrote in the 1960s, another time of great social upheaval: “The only real source of power we as judges can rely on is the respect of the people.”
With the two political branches virtually paralyzed by hyper-partisanship, any perception that the Supreme Court’s work is controlled by partisan loyalties would be devastating to that respect. Sadly, the leak of Justice Alito’s draft ruling in Dobbs raises the specter of partisan influence.
Protecting the Supreme Court from external attacks on its legitimacy and independence is critical. But to encourage the public trust that is the basis of the court’s power, it is time for it to adopt a formal and public code of conduct, applicable to the justices and all other personnel. That code must not only ensure the confidential internal deliberations of the court, it must firmly prohibit any activities that can be seen as partisan.
One co-equal branch of government must — and be seen to — stand above the partisan politics. Only the courts can perform that essential task, and judicial independence is today under assault.
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Robert J. Cordy, a partner at McDermott Will & Emery and former justice of the Supreme Judicial Court, and Brackett B. Denniston III, senior counsel at Goodwin, are board members of PioneerLegal, a Boston-based public law center.
