The Supreme Court of the United States endures as an institution and exercises its critical power through its public legitimacy. That legitimacy is now in question. The American public’s trust in the highest court is near a record low. This reality coincides with the unprecedented leaks of entire draft Supreme Court opinions. To understand the current skepticism toward the judiciary, it is necessary to discuss the role that leaks have played—and continue to play—in legal history. 

Against this background, the publication of the first Supreme Court Code of Conduct (hereinafter the Code) in November of 2023 illustrates that the judicial landscape is changing. The Code was published after years of reports concerning the Justices’ ethically questionable conduct. The Justices have been criticized for accepting gifts and free travel, along with refusing to recuse themselves. For example, Justice Thomas accepted a Frederick Douglass Bible valued at $19,000 and a trip to the exclusive Bohemian Grove; Justice Breyer took approximately 225 subsidized trips over fourteen years, including a trip to Nantucket funded by David Rubenstein (a private equity mogul); Justice Scalia stayed at a lavish hunting lodge; and Justice Ginsburg toured Israel at the expense of a billionaire. Moreover, Justice Thomas failed to recuse himself in Trump v. Thompson, a case involving the subpoena of White House records regarding January 6, 2021. This was a “textbook case” for recusal because his wife’s text messages regarding overturning the results of the 2020 presidential election were potentially at issue. The preceding occasions are just a few of the Justices’ contested actions. Thereafter, the Court recognized that its status as the only unregulated body within the judiciary “ha[d] led . . . to the misunderstanding that the Justices . . . regard themselves as unrestricted by any ethics rules.” They hoped that adopting the Code would “dispel this misunderstanding.”

The Code was an important first step in judicial reform, and the Court must be applauded for adopting a code of ethics. But there is much more to be done; the puzzle of a revised code of ethics for the Court will include many parts. The draft opinion leaks of Dobbs v. Jackson Women’s Health Organization and Moyle v. United States establish that one key piece to the puzzle must be ethical guidelines addressing Supreme Court leaks. The presence of draft opinion leaks poses ethical considerations and concerns for the Justices and their staff. Integrity, confidentiality, and democracy are central to the Court’s legitimacy. Integrity is a bedrock that judges must champion to earn public respect and trust as interpreters of law. Confidentiality allows for open discussion and deliberations that enhance the quality of opinions handed down. And democracy ties the judiciary to the other branches, allowing for a system of checks and balances. Yet, the system is in a quagmire because those important principles are being questioned. Solid ethical frameworks are instrumental to gaining back the trust of the American people.  

The basis of the legal profession is ethical rules and regulations. Every law student must take a course in professional responsibility and later is required to pass the Multistate Professional Responsibility Examination to be admitted to their state bar. Lower courts and SCOTUS are now guided by codes of conduct. Yet against this background, the presence of SCOTUS leaks shows faults in the system. Leakers, at a minimum, have failed to apply the “smell test,” which outlines taking a pause and relying on common sense to contemplate whether the correct course of action is being taken. This is a critical oversight. Applying this test would reveal that leaks at the highest level of the judiciary are wrong.

This Note explores the implications of leaks, and why affirmative steps must be taken to prevent them. Part I summarizes the history and scope of SCOTUS leaks. Part II delves into the key questions surrounding the Court’s legitimacy. And Part III discusses the implementation of an enforcement mechanism in the Code in the face of leaks. Overall, the Court must address how principles inherent to its operations—most importantly its legitimacy—interact with draft opinion leaks in the modern legal landscape. 

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