Introduction

The Supreme Court has sprung a leak, or perhaps several. Like a homeowner snapping awake to find a pipe had burst in the night, the Supreme Court was jolted into the headlines on May 2, 2022, when Politico reported on a leaked early draft of the Dobbs v. Jackson Women’s Health Organization opinion.[1] Chief Justice Roberts responded by ordering the Marshall of the Supreme Court to conduct an investigation. However, it seems the investigation failed to uncover the underlying problem, as recently several internal memos were leaked to the press revealing Chief Justice Roberts’s maneuvering around the decisions Trump v. Anderson, Fischer v. United States, and Trump v. United States (“the Trump decisions”).[3] The leak came in the wake of reporting on Justice Alito’s flag scandal and revealed Chief Justice Roberts, among other things, reassigning an opinion from Justice Alito to himself.[4] While the press has focused on the implications on relations between the Justices and public concern about the legitimacy of the Court, these leaks also raise questions of legal ethics. Do Supreme Court clerks owe a duty to the Court similar to the duty attorneys owe their client?

Do Supreme Court Clerks Owe a Duty to the Court?

The answer, which may be surprising to many, is no—at least not a legally binding one. The ABA Model Code of Judicial Conduct does state that clerks, as employees of judges, must refrain from commenting on pending cases.[5] The American Bar Association puts out this model code for judicial conduct that states can adopt, but it is nonbinding. Even more striking is the fact that even though the District of Columbia has adopted a version of the ABA’s Model Code, it does not apply to Supreme Court clerks.[6] In fact, there is no ethical code that regulates the conduct of Supreme Court clerks.[7]

At first blush, this seems like a huge problem. Supreme Court clerks have immense influence over judicial interpretation of the law; second only to the members of the Court themselves. They work closely with the Justices, influence their thinking, and even draft opinions that are binding on every lower court in the country. And they do it all as fledgling lawyers, often only two or three years out of law school. It hardly seems controversial to think that a group of young, ambitious lawyers wielding great influence while being shielded from public scrutiny should be held to at least the same ethical standards as their counterparts in lower courts.

And yet, the Supreme Court itself disagrees. It’s no secret the Court has resisted, even largely ignored, calls for the Justices to adopt an ethics code binding on themselves. After years of the public and members of Congress asking for a mile, the Court did finally give an inch in 2023 when it adopted its own Code of Conduct.[8] However, that Code of Conduct did not provide for any enforcement mechanism other than willing compliance by the Justices themselves.[9] It gives the impression that the Court is not going to budge on its position that “judges must bear the primary responsibility for requiring [appropriate] judicial behavior.”[10]

The Court seems to be taking an identical approach to the ethical obligations of its clerks. The commentary section of the new Code of Conduct’s states that, “[t]he Court will provide mandatory training on judicial ethics principles to all Court employees.”[11] The actual provisions of the Code of Conduct itself are similarly vague. The only provision relating to Court employees states, “[a] Justice should take appropriate action upon receipt of reliable information indicating the likelihood of misconduct by a Court employee.”[12] Clearly, the Court is not interested in having anyone other than the nine Justices police the ethical obligations of their clerks.

That may not be as crazy as it seems. Given how long the Court has existed as an institution, there have been very few leaks from current clerks.[13] Supreme Court clerks are also a small group, typically thirty-six for each term. For the math averse, that’s just four clerks for each Justice to supervise. They also work closely with their Justice. In these circumstances, it may make more sense for the Justices to personally oversee their clerk’s ethical conduct.

The Supreme Court’s Response to Leaks

The bigger problem the Court faces is how to address the problem of leaks. Justice Roberts ordered a full investigation by the Marshall of the Supreme Court and her staff in response to the Dobbs leak. Despite the limited number of employees who had access to the draft, eighty-two according to the Marshall’s Report, the Marshall was ultimately unable to determine the source of the leak.[14] What’s more troubling is that the Court doesn’t seem to have been successful in discouraging their clerks from leaking Court documents. The recent leaks of internal memos about the Trump decisions show that any ethical training the Court is providing to its clerks isn’t a sufficient deterrent. Even worse, the failure of the Court to identify the source of these high-profile leaks may embolden future clerks to leak confidential Court materials, regardless of their ethical obligations.

There is no reason to think that, if somebody other than the nine Justices was responsible for policing Supreme Court clerks’ conduct, the investigation would have been more effective. These leaks were hugely damaging to the Court’s legitimacy. The leaks around the Trump decisions even led to Rep. Ocasio-Cortez filing articles of impeachment against both Justice Thomas and Justice Alito.[15] When this level of public scrutiny is on the line, it’s hard to imagine anyone with a stronger incentive to both hold someone accountable and stop future leaks than the Justices themselves. It may be the case that, even with a strong ethical code, there is simply no way to effectively enforce it for Supreme Court clerks.

Conclusion

So, what should the Court do? Are leaks just the cost of doing business that the Court has to pay? Do they serve an important role shedding light on the internal workings of the Court? No matter the answer to these questions, the persistence of the recent leaks at the Court, in spite of attempts to stop them, seems indicative of a serious problem. Just as a homeowner eventually needs to bite the bullet and replace their entire plumbing system, the Supreme Court may need to start from the ground up and rethink how it enforces the ethical obligations of its clerks.

 

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[1]  Josh Gerstein and Alexander Ward, Supreme Court has voted to overturn abortion rights, draft opinion shows, Politico (May 2, 2022), https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473 [https://perma.cc/XV3G-YG8W].

[2]  Supreme Court of the United States, Statement of the Court Concerning the Leak Investigation (Jan. 19, 2023), https://www.supremecourt.gov/publicinfo/press/Dobbs_Public_Report_January_19_2023.pdf [https://perma.cc/PD9B-SGVD].

[3]  Jodi Kantor and Adam Liptak, How Roberts Shaped Trump’s Supreme Court Winning Streak, New York Times (Sept. 15, 2024), https://www.nytimes.com/2024/09/15/us/justice-roberts-trump-supreme-court.html [https://perma.cc/A53B-SUBT].

[4]  Id.

[5]  ABA Model Code of Judicial Conduct, Rules 2.10(A), (C), 2.21 (2020).

[6]  Elizabeth Yoder, The Dobbs Leak as an Illustration of the Impasse Between Legal Ethics and Reality, Georgetown Journal of Legal Ethics, 881, 884 (2023).

[7]  Id.

[8]  Michael Waldman, New Supreme Court Ethics Code Is Designed to Fail, Brennan Center (Nov. 14, 2023), https://www.brennancenter.org/our-work/analysis-opinion/new-supreme-court-ethics-code-designed-fail [https://perma.cc/AZV4-A7ZS].

[9]  Id.

[10]  Supreme Court of the United States, Statement of the Court Regarding the Code of Conduct (Nov. 13, 2023), https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf [https://perma.cc/86JX-A9SV].

[11]  Id. at 13.

[12]  Id. at 1.

[13]  Dareh Gregorian, Abortion opinion leak unprecedented but not a Supreme Court first, NBC News (May 3, 2022), https://www.nbcnews.com/politics/supreme-court/abortion-opinion-leak-unprecedented-not-supreme-court-first-rcna27130 [https://perma.cc/2AYU-698G].

[14]  Supreme Court of the United States, Statement of the Court Concerning the Leak Investigation (Jan. 19, 2023), https://www.supremecourt.gov/publicinfo/press/Dobbs_Public_Report_January_19_2023.pdf [https://perma.cc/UD9J-DKXZ].

[15]  See Press Release, Alexandria Ocasio-Cortez, Rep., House of Representatives, Ocasio-Cortez Introduces Articles of Impeachment Against Justice Thomas and Justice Alito (July 10, 2024), https://ocasio-cortez.house.gov/media/press-releases/ocasio-cortez-introduces-articles-impeachment-against-justice-thomas-and [https://perma.cc/C8YP-GBN3].