Ted Williams, the legendary hitter, once advised a struggling outfielder: “with two strikes, you simply have to protect the plate.” That wisdom resonated this week as another breach of confidentiality shook the foundations of the Supreme Court, echoing the unsolved leak of the Dobbs decision.
For Chief Justice John Roberts, the message is stark. This isn’t about legal strategy or precedent; it’s about defending the very integrity of the institution he leads. He famously likened judges to umpires – impartial arbiters who apply the rules, not create them. But even umpires must safeguard the game itself.
The Court, however, isn’t merely applying rules. Justices shape them, and increasingly, the rules governing the Court’s internal operations are being broken. A recent week revealed a troubling escalation of internal conflict spilling into public view.
Justice Sotomayor publicly criticized Justice Kavanaugh, questioning his understanding of working-class Americans in a deeply personal and uncharacteristic attack. While an apology followed, the breach of the Court’s long-held standards of civility was undeniable.
Further unsettling accounts are emerging, detailing a heated exchange between Justices Kagan and Breyer prior to the Dobbs decision. Reports suggest Kagan’s frustration stemmed from Breyer’s willingness to expedite dissenting opinions amidst escalating threats against conservative justices following the initial leak.
For an institution built on confidentiality and insulated deliberation, the Court is becoming alarmingly porous and partisan. The public is beginning to view the justices not as impartial arbiters, but as players in a very public, and increasingly acrimonious, game.
The latest leak, published by a major news outlet, involved internal memos concerning the “shadow docket” – the practice of issuing rulings without oral arguments. This followed a speech by Justice Jackson criticizing the use of this docket by her conservative colleagues, labeling some decisions “utterly irrational.”
The memos revealed justices’ concerns that the Environmental Protection Agency was exploiting the system, imposing significant regulatory burdens on utilities despite a previous ruling. Roberts himself noted the EPA was leveraging ongoing litigation to force billions in compliance costs, effectively enacting a law the Court had deemed unlawful.
The debate surrounding the shadow docket itself is secondary to the core issue: this is the second significant leak from within the Court, clearly intended to inflict damage. Unlike the Dobbs leak, which appeared aimed at influencing the outcome, this one served no purpose other than to embarrass and disrupt.
The question of who is responsible remains unanswered, and it’s unlikely the same individual is behind both breaches. These leaks point to a deeper, more systemic problem – a deteriorating culture within the Court itself.
Roberts’ initial investigation, conducted through the federal marshals, proved fruitless. Critics questioned the choice of marshals over the FBI, suggesting a reluctance to involve another branch of government. The result was a complete failure to identify the culprit and hold them accountable.
The Court’s longstanding culture of confidentiality, its ability to remain an island of integrity in a sea of leaks, has always been its strongest defense. For decades, the “umpires” could call balls and strikes without engaging in the leak game. That tradition is now rapidly eroding.
To safeguard the future of the Court and restore public trust, Roberts must overcome his reservations and enlist the FBI. More importantly, he must commit to complete transparency, allowing the investigation to follow the evidence wherever it leads. With two strikes against it, the Court must protect the plate.
