It’s been eight long months since the unprecedented leak of the draft opinion in the landmark abortion case, Dobbs v Jackson Women’s Health. When it happened last May, Chief Justice John Roberts described it as “a singular and egregious breach of that trust that is an affront to the Court.” As the nominal head of that Court, it was up to Roberts to investigate the leak, and then presumably do something about it, but in the intervening months, the internal investigation of the leak—as ordered by Roberts—has plodded on without any disclosures to the public about what Harriet the Spy and Inspector Gadget, or whichever crack detective tasked with solving the crime has turned up.
This shocking leak, for which Sen. Ted Cruz once insisted that someone be “fired instantly” and also “prosecuted” and also “serve real jail time,” has already gone the way of the great un-crackable mysteries of our time. Justice Clarence Thomas may have once characterized it as “an infidelity” that had profoundly shattered trust among the Justices, but apparently the Court opted to continue operating without the restoration of that trust. So much so, that it never needs to be discussed again. The 2022 term may have opened with Justice Neil Gorsuch stating he was optimistic the mystery of the Dobbs leak would be publicly released “soon,” but soon has now come and gone with nary a word from the Marble Palace. Weird. In a building populated by about 500 employees, almost none of whom would have had access to a near-final draft opinion, the identity of the Dobbs leaker is going the way of the Bermuda Triangle and Amelia Earhart. Although the leak supposedly traumatized the institution and its members, the agreement seems to be that we need never speak of it again.
So perhaps nobody should be surprised that this great Supreme Court mystery—a breach of trust in an order of magnitude previously unheard of—appeared nowhere in the pages of the Chief Justice’s annual year-end report on the federal judiciary. That report, which dropped, as it does, on New Year’s Eve, was widely covered for its lack of references to several important issues that faced the Court this year. These included: the Dobbs leak, the Supreme Court Historical Society’s perplexing role as secret pipeline for SCOTUS access-seekers and their fat wallets, and any references to Justice Clarence Thomas’ continued insistence on ruling on cases that directly affect his own wife (this would seem to violate the ethics rules that bind the Supreme Court, but as we now know, they do not bind the Supreme Court). None of these crises were mentioned in the report. Why? because these controversies all make the court look hinky AF, and Chief Justice Roberts doesn’t want that.
The real mystery, then, isn’t merely how Roberts’ year-end report ended up centering threats to American judges as the most urgent concern of the past calendar year. The real mystery isn’t even how the report suggested that comparisons between an Arkansas desegregation case from 1957 that brushed back lawless state interpolation and brought threats to a jurist fighting to defend precedent is somehow analogous to what happened in Dobbs. No, the real whodunnit following Roberts’ report, has to be this: Who killed the last vestige of shame down on One First Street? Because Benoit Blanc, call your office. I want to report a murder.
It’s not that any of us really expected the Chief Justice, who was once favorably compared to John Marshall and even to his own mentor, William Rehnquist, to come forward willingly to put the interests of the Supreme Court before his own parochial desires. He will use his votes and opinions to do that, to be sure, but not his statements as Chief. To take on that actual responsibility would demand accepting a leadership role that includes speaking truth to uncheckable power, even if that uncheckable power belongs to the court. The Chief Justice knows well what crises have beset the high court and its reputation this past term. But all he wanted to talk about was how that manifests as threats to judges.
Possibly, the time for institutional self-criticism and introspection passed just around the time Amy Coney Barrett flew out for a gig at the Mitch McConnell center and then blamed the press for public distrust in the institution. Or if not then, perhaps the moment came when the court overturned Roe v. Wade in a few sentences on the shadow docket at the beginning of the 2021 term. But certainly the expectations of a court reflecting on its own complicity in public’s distrust of it were at zero by the time Samuel Alito was giving triumphal insult-comic speeches about Dobbs in Rome this past summer, and when Ginni Thomas was still insisting that the 2020 election was stolen by Biden in September, as her husband rules on Jan. 6 cases. Indeed, it has become fairly obvious that if you can’t beat the ethical challenges at the court, you can just join them. Or at least cover for them.
And that, it seems, is the play. The Chief Justice continues to doggedly reframe public anger at the court as one of two things: the public’s problem, and also a security risk to the Justices. Nobody is here to defend violent threats against the safety of judges and their families—that’s why Roberts did not need to devote his year-end review to defending the need for judicial protection from violent threats. But the public is struggling to understand how it can possibly have faith in a court with no braking mechanism on its effort to remake the constitution in two years. In response to that anger, the court put up security fencing. Now imagine if the Chief Justice had spoken candidly about that.
Consider what Roberts spent time on instead. Roberts offered an historical account of the threats faced by a brave judge in Arkansas after he ruled in favor of integrated schools in 1957. After Governor Orval Faubus ordered the Arkansas National Guard to step in to prevent the Little Rock School Board from allowing Black children to attended school, US District Judge Ronald N. Davies heard the case and decided in favor of the Little Rock Nine. He did this in the face of horrible threats to himself and his family. There are photos! The Supreme Court is preserving and displaying the artifacts! It’s a moving tribute to judicial courage. It’s also making either an explicit or implicit comparison between Dobbs and Brown v. Board. Which is absurd.
While Roberts can pretend that the chaotic political and legal landscape that followed Brown is comparable to the self-created havoc the court has wrought on the political and legal landscape today, the public does not seem to agree. Instead, public mistrust of the court is the court’s own fault in a dozen ways the Chief Justice persistently refuses to acknowledge publicly: There’s the unethical conduct, inappropriate speeches, dark money influence, icky Christmas party companions, and judicial refusal to recuse in matters where a family member has a stake in the outcome. And don’t forget about the abuse of the emergency docket, disregard of precedent, promotion of falsehoods in opinions, and reaching out to take cases not properly before the court. This isn’t about national civil rights turmoil comparable to Brown v. Board. It’s about the continued pretense that this moment is analogous to Brown v. Board.
This year, Chief Justice John Roberts may have used his own votes and opinions to register his unease with the shadow docket, and to caution mildly that the reversal of binding abortion precedent was a “jolt to the system.” But he declines to use his speeches, his stewardship role, or his end of the year report to publicly acknowledge that plummeting public trust in the court is a two way street, and that what’s rolling out of the court and down One First Street in recent years ain’t pretty.
One is left with the dispiriting sense of John Roberts as doubly cursed: Unlike some of his conservative colleagues, he is well aware of the multiple ways in which the Justices themselves are doing violence to the court’s reputation as unbiased and above the fray. However, because there’s nothing he thinks he can do about it, he’s refusing to acknowledge it. He’s taking all the evidence of the shoddy and unethical behavior and sweeping it under the carpet, then pointing at the mound of carpet crap and blaming it on the American public.
Honestly, I feel a little bit sorry for the Chief Justice. He will likely be remembered by historians as the most principled Chief Justice ever to thoroughly lose control over his court in real time and in plain view, just as he insisted that everything was awesome. Given that he had a chance to use his year end report to say anything at all about the ways in which judicial legitimacy is earned, rather than demanded, from the public, or about the ways in which the most destabilizing term in modern history had forced the court to recalibrate its own ethical and judicial standards, his decision to say nothing about any of this, is instead yet another failure to meet the historical moment.
As pregnant Americans attempt to reimagine dealing with their pregnancy losses, their thwarted birth control needs, their new economic realities, and their life saving medical needs thanks to Dobbs, the Chief Justice’s choice to center himself and his colleagues – ensconced in the protections of lifetime tenure – was a choice to blind himself to suffering of which he is well aware. Judges are suffering after the 2022 term. So are millions of others. Refusing to see the connection is the problem, not the solution.