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Upon Petard Hoist


The rain on the Court’s wedding day is that any investigation into the leaker is likely to be fruitless precisely because the Court is designed to defeat all attempts at accountability:

No other branch of government functions this way. The rest of the federal judiciary is wildly unaccountable, but compared to the Supreme Court, it is a model of integrity: Lower court judges are bound by a code of conduct, which the Judicial Conference administers (with mixed results). This code does not apply to SCOTUS, whose members are, for the most part, above the law. For its part, Congress began placing inspectors general throughout executive branch agencies in the 1970s to monitor waste, fraud, and abuse. There are now at least six dozen inspectors general across the federal government, in executive and legislative agencies both major and obscure. These appointees, who are given substantial independence, continually investigate their own workplaces and workforce to ensure that they’re upholding their legal obligations and statutory mission. The inspectors’ law enforcement powers vary by department, but many are staffed with special agents who are empowered to conduct criminal probes. They can also receive tips on misconduct and shield whistleblowers from retaliation.

The system is far from perfect, as Donald Trump illustrated when he purged several inspectors general in 2020. But it is vastly superior to no system at all. As the court’s investigation progresses, consider that there is nothing to stop the Supreme Court from setting up its own internal, independent watchdog right now. Or from asking Congress for funds to create a judicial inspector general. The court’s current 190-member police force specializes in screening visitors and overseeing protests; its officers are very competent and adept at those tasks but woefully unprepared for any meaningful investigation into their own colleagues. Curley, the marshal, has no background in the kind of massive investigation that the chief justice demands. And since it appears the leaker violated no law, neither the Justice Department nor the FBI has any clear reason to jump in.

Good faith efforts to understand the court’s unique position in the constitutional structure and need for independence, such as the months-long commission on Supreme Court reform, came up with dozens of suggestions about fixes the court could institute tomorrow, from meaningful disclosure requirements to binding ethics obligations. Those straightforward recommendations— not around court packing or term limits or jurisdiction-stripping, but the hardening of norms that apply to other public officials—are then characterized as vicious attacks on the independence of the judicial branch by some of the very same conservatives screaming today about prosecuting the leaker to the fullest extent of the criminal law.

Guess what? The leak came from inside the house. You wouldn’t need to howl and scream about lifetime imprisonment for the leaker if the court had rules and protocols and procedures and oversight and all the enforcement mechanisms to which every other government official is subject. It’s beyond ironic that Republican senators screaming that someone must pay for the leak are the very same people who insist that nobody dares police the court except the court.

I personally agree with Paul that the demystification of the Court is a feature, rather than a bug. But either way when the justices avoid any mechanisms of accountability while ignoring any norm that is inconvenient at the current moments, they really shouldn’t be surprised when their clerks infer the obvious lesson.


The Court’s legitimacy should instead hinge on whether the justices are acting legitimately. If a half-dozen extremists are just going to take a blowtorch to anything and everything they don’t like, no one in their orbit should be obligated to abide by their sacred norms any longer.

I also see that some of the worst people in the world are firing up their Ed Whelan Zillow machines to baselessly accuse particular clerks of being responsible.

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