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The Supreme Court of mistrust

Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021. (Erin Schaff/AFP via Getty Images)
Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021. (Erin Schaff/AFP via Getty Images)

Despite their differences of opinion, the nine justices of the U.S. Supreme Court have always regarded mutual trust as a pillar of their establishment.

But the leak of a draft ruling has rocked that.

“And when you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally,” Justice Clarence Thomas said.

And that infidelity, as he called it, appears to be having consequences:

“They’re definitely behind. When they were going into June, they had 33 opinions left to issue, which is over half of their cases,” Amy Howe, co-founder of SCOTUSblog, said.

So is the court forever changed?

“It’s hard to imagine it will ever be the exact same place it was before,” Howe adds.

Today, On Point: Turmoil at the nation’s highest court.

Guests

Dahlia Lithwick, senior editor for Slate. Host of the “Amicus” podcast, a show about the law and the nine Supreme Court justices who interpret it. (@Dahlialithwick)

Amy Howe, co-founder and reporter at SCOTUSblog, a blog devoted to coverage of the Supreme Court. (@AHoweBlogger)

Carolyn Shapiro, founder and co-director of Chicago-Kent’s Institute on the Supreme Court of the United States. She served as a law clerk for Justice Stephen G. Breyer.

Interview Highlights

Dahlia, you’ve watched the court for quite some time. Have you ever seen it in its current state?

Dahlia Lithwick: “I have not. And I want to say that with the caveat that so much of what we think we know, we don’t know. In other words, none of us who are watching what’s happening are, in fact, the nine justices that we are describing. And so a lot of what I am reading is what you’re reading and what Amy’s reading, which is speeches such as Justice Thomas’s or, you know, the leak and the succession of leaks that came after. And the really good reporting that’s been done about what it feels like inside the court, how the clerks are feeling. And so, given all that, I’m confident in saying I’ve never seen anything like this, and I’m also confident in saying I don’t know what I don’t know. And it may be just peachy inside the conference room where the nine justices sit, and work together and maybe we are reading too much into it.

Antonin Scalia and Ruth Bader Ginsburg were great friends, and went to the opera and traveled and rode elephants together, even though they were on the opposite sides of the court.

Is this signaling something different? That the court, the justices themselves, or their offices, cannot work together or don’t trust each other in the same way?

Amy Howe: “As Dahlia says, you know, we don’t know what we don’t know. We had Justice Sonia Sotomayor speaking last week at the American Constitution Society. And her speech, her message and granted, this was to a group of largely young progressive law students and lawyers, was you know, there are days, she said, there are days when I get discouraged. But her message, in essence, was fight on. And then she talked at great length about how wonderful Justice Thomas is. She talked about how he is someone who knows everyone at the court, lawyers, staff.

“And portrayed him, talked about him as a wonderful person and colleague. And we certainly saw it when we had the so-called Maskgate earlier this year, when Justice Sotomayor, who’s a Type one diabetic, was not coming to court and was participating remotely. And all of the justices except Justice Neil Gorsuch, would come out wearing a mask, and they went to great lengths to portray themselves as friends.

“So, you know, I think that this is also just always a fraught time of year. When you get to May and in particular to June, when the justices are working very hard to try to get out all of the opinions before they take their summer recess. And, you know, tensions tend to run high at the best of times. And these are certainly not the best of times at the Supreme Court right now.”

What, in your opinion, was the cause for that very unusual bottleneck in issuing ruling at the court?

Dahlia Lithwick: “I don’t know for sure. And I’d be curious if Amy’s heard the same speculation or if you have. But I do know that after the leak, which happened at the very beginning of May, the court tightened a whole bunch of protocols and procedures out of fear that there would be more leaking. And it’s entirely possible. One such speculation I’ve heard from my colleague Mark Joseph Stern at Slate is that you had to come into the building to work, that there was no more possibility of anybody working from home, and it may have just caused massive delays.

“So I don’t actually know. As a matter of fact, what caused the bottleneck. I will say, and Amy knows this better than anyone, but I think last week the court kind of cut itself up. I was really, really nervous that the term was going to drag on into July, as it did a couple of years ago. I think now they’re on track to finish, you know, probably the very, very beginning of July at the latest. But I do think that bottleneck wasn’t something that wasn’t immediately corrected.”

I want to talk a little bit about the leak investigation itself. It’s being handled by the courts martials, but that’s something that they’ve never done before. To the extent that we know, does that work?

Dahlia Lithwick: “I mean, we don’t know much. But I think your framing point is the correct one, which is that the marshal’s office at the court is really, really good at a lot of things. And I think all of us have seen that office do an admirable job with crowd control and protesters and keeping order when the court is in an oral argument session. But it, as far as I know, doesn’t have vast investigatory experience and powers. And the mere fact … that we’re already hearing that clerks are being told that their phones may be searched, that they’re having to seek legal counsel to figure out what their rights are in terms of protecting their information.

“All of that sort of signals that this is not maybe the most perfect way to conduct this investigation. And I think I would just add this gloss to all that, which is this is another sort of self-inflicted wound that I think the court could have avoided. I mean, so much of the things that we are discussing right now, whether it’s, you know, speeches where justices say things that are intemperate or, you know, critiques that they offer of one another, you know, when they critique each other in dissents about the existence of the shadow docket, complaints across the ideological spectrum that the justices have about one another in their procedures.

“And this feels like of a piece with that, both the leak, and the investigation of the leak, is partly a function of a court that is so kind of jealous of its own power and prerogatives that it not only refused to let some outside entity investigate the leak, but it also doesn’t have any rules. It has so few binding rules on itself in terms of, you know, ethical conduct, in terms of, you know, clerk conduct. So much of the court systems and protocols are just kind of traditions. They’re not binding, enforceable rules.

“And in some sense, a lot of what we’ve seen and what we’re describing in this conversation, the sense of kind of the wheels coming off and nothing is holding, is a function of the court not holding itself to account in a lot of meaningful ways, for many years. And I say this with no joy, but I do think that some of what is coming home to roost now is a failure over years and years and years to put into place binding rules, binding oversight, binding procedures, and a refusal to have, in the leak context, a meaningful investigation. And instead wanting to do it inside the house, whatever that leads to.”

Do you think that trust can be restored, not just among the just the justices themselves, but that the public trust can be restored in the court?

Amy Howe: “I think the court is in a harder place than it has been. We’ve all been covering the court for a while, and we’ve seen these ups and downs where something like Bush vs. Gore happens, or Citizens United happens. And there tends to be a lot of lack of faith, lack of trust in the court. Then the court seems to rebound until the next something, the next crisis comes along. But they’re starting from a much lower place right now than they have been. And so they’ve got much further to go, I think, to rebound.”

Do you think that the institution is, as Justice Thomas said, changed forever? Or as Justice Sotomayor said, there is hope that trust can be restored?

Dahlia Lithwick: “To me … the justices themselves need to trust each other and the institution in order to restore public trust. And that means no more leaking, and no more snarking about each other, and no more complaining that the press is the problem. In some sense, it’s theirs to fix now, for us to regain trust.”

This article was originally published on WBUR.org.

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