Although we have confidence in the integrity of the Supreme Court of Maryland, sadly, we no longer have the same confidence in the integrity of our nation’s high court. There is much blame to go around, but most of it lies at the feet of Chief Justice John G. Roberts Jr.
The latest episode in the erosion of public trust in the Supreme Court relates to the unprecedented May 2022 leak of the draft majority opinion in the Dobbs case and the subsequent investigation of that leak. On May 3, 2022, the day after Politico published Justice Samuel Alito’s draft, the chief justice announced that there would be an investigation into the leak. On Jan. 19, 2023, the Supreme Court issued a brief statement, accompanied by Supreme Court Marshal Gail A. Curley’s 20-page Report of Findings and Recommendations.
Eight months of work produced very little, notwithstanding the gravity of the matter.
In its statement, the court declared: “It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal deliberations.” Yet, from the beginning, the investigative process was flawed, was probably doomed to fail, and in fact, did fail. Bottom line, the leaker was not found. And Chief Justice Roberts showed a failure of leadership and a lack of willingness to do what needed to be done to restore public trust and confidence in the court, which now appears to be at an all-time low.
Two problems are made evident by the statement and report. Roberts’s first mistake was to assign the investigation to the marshal of the Supreme Court and her staff. Why ask the security force that protects the justices, their residences, and the building they work in, to undertake such a sensitive inquiry? Why not involve the FBI, the Department of Homeland Security, or another federal agency?
It is not at all clear that the marshal’s office had the personnel, expertise, or resources to complete this difficult task. It is not at all likely that a local sheriff’s department in Maryland would be asked to investigate a leak that took place in a circuit courthouse. Would it not be far more appropriate to call in the Attorney General’s Office or the Maryland State Police?
This fundamental error led to the second problem, which involves the manner of the marshal’s investigation. Ninety-seven staff members at the court, i.e., the law clerks, court employees, and the like, were subjected to formal interviews and were required to sign “sworn affidavits affirming they did not disclose the draft opinion, nor know anything about who did.” If any of these personnel lied, they would be subject to criminal prosecution under 18 USC Sec. 1001 (False Official Statements).
The nine justices, however, were not subjected to this rigorous process. Rather, as Marshal Curley stated in her clarification, the nine merely engaged in an “iterative process, asking questions and answering mine.” After these presumably pleasant, informal conversations, the marshal concluded to take the justices at their word and did not seek signed, sworn affidavits.
In defense of Curley, how could we expect otherwise of her? The justices are treated much like deities in D.C., particularly in their own chambers where they would have been “chatted up.” The marshal was set up for failure from the beginning, and it is hard to believe that Roberts thought otherwise.
To make matters worse, this debacle occurred in the broader context of the current credibility crisis at the court. Putting aside the Dobbs decision itself (eviscerating a right to abortion enshrined for nearly 50 years), the court had endured many other calls to account for questionable behavior of the justices in numerous contexts over the past several years.
Three serious matters implicating three of the justices come to mind: the ethics investigation of then-D.C. Circuit Judge Brett Kavanaugh prior to his confirmation that was dropped because the justices are not bound to ethics rules governing all others in the federal judiciary; Justice Clarence Thomas’ declining to recuse himself in cases involving former President Trump’s attempts to “Stop the Steal” even though Thomas’ wife had been personally involved in those efforts; and reports of Alito’s alleged involvement in the leak of the 2014 Hobby Lobby decision at a dinner the justice and his wife attended with a donor.
None of these highly questionable ethical matters have led to action by Roberts. And this latest blackmark on the court — the leak — was ultimately whitewashed as well. We deserve better from the chief justice of the United States. Whether he knows it or not, when public confidence in his court is eviscerated, it impacts all of our nation’s courts, including the Supreme Court of Maryland.
Editorial Advisory Board members Arthur F. Fergenson and Debra G. Schubert did not participate in this opinion.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
James K. Archibald
Gary E. Bair
Andre M. Davis
Arthur F. Fergenson
Julie C. Janofsky
Ericka N. King
Susan F. Martielli
Angela W. Russell
Debra G. Schubert
H. Mark Stichel
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.