A Supreme Court Divided Cannot Stand. John Roberts Must Step up or Step Off | Opinion

The Supreme Court has turned into a sieve. Last week, CNN reporter Joan Biskupic published a four-part series that revealed the high court's private deliberations. Even worse, the leaks were designed to advance specific narratives about which justices are strong and which are weak. Chief Justice John G. Roberts is all-powerful. Justice Neil Gorsuch appears decisive. Justice Brett Kavanaugh looks weak and ineffective. And Justice Elena Kagan lurks in the background, eager to lend a helping hand to form a moderate coalition. We do not know who leaked the information to the press. It could have been the justices, their law clerks or even allies outside the Court. Frankly, it doesn't matter. These leaks have no doubt destroyed trust and camaraderie on the Court. Relationships will become distant, and the workplace will become even more toxic. There is only one person who can restore order to the Court: Chief Justice Roberts.

Alas, I doubt the George W. Bush appointee is up to the task. Roberts fancies himself the second coming of the great Chief Justice John Marshall. Not even close. Instead, now he more closely resembles one of his lesser-known predecessors, Chief Justice Warren Burger. In 1979, Bob Woodward and Scott Armstrong published the groundbreaking book, The Brethren. The reporters interviewed several of the justices and hundreds of Court staff to peel back the curtain. They revealed internal Court squabbles, painted some of the justices as partisans and highlighted Burger's inept leadership. This book tore the justices apart and created distrust for decades. Burger, an ill-suited chief justice, could do nothing to heal those wounds. Roberts now faces an even greater crisis of confidence. Unless he can rise to the occasion, and plug these leaks, the Roberts Court will tear itself apart. A Supreme Court divided cannot stand. If Roberts cannot unite the Court, he must leave it.

Never before has the Supreme Court's cloak of secrecy been lifted so high and so quickly. Less than a month after the Supreme Court's term concluded, Biskupic has published her detailed play-by-play of the most contentious cases. Now we know with intimate details how the justices squabbled over abortion, LGBT discrimination, immigration, Trump's tax returns and more.

In the process, Biskupic paints some justices in a flattering light, others in a jaundiced light and leaves the rest mysteriously out of the picture. Some leaks appear to be pro-Roberts. Other leaks seem to be from the Gorsuch camp. Many leaks are anti-Kavanaugh. And in the background, Justice Kagan hovers as a helpful mediator. The rest of the justices are innocent bystanders. Virtually nothing is said about Justice Ginsburg, who has blabbed in public about internal deliberations. Justice Sotomayor, who spoke with Biskupic for her earlier book, appears in passing. Justice Breyer is barely there. And we only learn about Justices Alito and Thomas when their role affects the four protagonists of the CNN series. I'll let others speculate about how the information leaked. My concern is far more pressing.

Chief Justice Roberts must do something to stanch these leaks. The Court cannot continue to function as an institution with its members sniping at each other through the press. And this task is urgent. Over the next few months, the Supreme Court may be called upon to resolve the fate of the presidential election. I doubt that either Donald Trump or Joe Biden would accept an adverse ruling from the Supreme Court. But if deliberations leak out, and it is revealed that the justices tried to trade and barter their votes, the judiciary will be irreparably damaged. Any long-term plans about maintaining the Court's legitimacy will be snuffed out in a moment. External Court-packing troubles me far less than internal Court-fracking.

What should the chief justice do? Here are five steps he can take to bring the Court back in order.

First, the chief justice must immediately issue a public statement, on his own behalf, about the leaks. He should declare these leaks unacceptable, and announce that he is investigating the breaches of confidentiality. He cannot simply deny reality. The Court needs an emergency tourniquet to stop the bleeding. Roberts has no problem criticizing members of the other branches. He issued a public statement rebuking President Trump's tweet about Obama judges and Trump judges. He condemned Senator Chuck Schumer of New York, the Democratic leader, who said the justices had "released the whirlwind," and "will pay the price" for "awful decisions." And during the Senate impeachment trial, he "admonish[ed]" both Republicans and Democrats to stop using "language that is not conducive to civil discourse." But in his own house, Roberts has failed to enforce any rules of order. The chief justice needs to bring the same moral clarity he brought outside the Supreme Court to his own chamber.

Regrettably, there is every reason to believe Roberts only favors transparency for the other branches, and not his own. Recently, the chief justice concealed his trip to the emergency room, and only disclosed it after The Washington Post received a tip. Sunlight is necessary here. We know all too well what happens when secretive organizations cover up wrongdoing. These problems tend to fester, creating far greater crises. The Supreme Court cannot survive such internal intrigues. Roberts must rise above the Court's discreteness and insularity, issue a public statement and condemn the leaks.

Second, after the chief justice publicly denounces the leaks, he must bring his colleagues on board. This process will be slow, painful, and confrontational. The justices are talking to the press because of the Court's corrosive culture. Roberts very well may be to blame for this toxicity, and his colleagues feel the need to vent to the press to get their message out. The leakers are, in effect, whistleblowers. There are no public channels for members of the Court to complain. The justices cannot call human resources. These leaks are symptoms of a far greater crisis that is hidden to the public. This conduct is understandable, but still unacceptable. The chief must find a way to get all nine of his colleagues to sign a statement that condemns the leaks, and promises to end them.

If some of the justices refuse to acquiesce to a statement, Roberts should threaten to release a public statement joined only by the coalition of the willing. That threat should be enough to bring everyone on board. I doubt anyone would call the chief's bluff. This approach would be a bitter pill to swallow, but the Court must speak publicly with one voice. There is some historical precedent for such a move. In 1937, Chief Justice Charles Evans Hughes—another one of Roberts' judicial icons—sent a letter to Congress opposing President Franklin Delano Roosevelt's Court-packing plan. The letter, however, was only signed by two other justices. Hughes released the letter in haste to respond to the fast-moving crisis in Congress. It turned out that some of his colleagues did not agree with the letter, but eventually they acquiesced. Members of the Roberts Court would likely fall in line, as well.

Justice Neil Gorsuch with Chief Justice
Justice Neil Gorsuch with Chief Justice John Roberts Win McNamee/Getty Images

Third, after all of the justices agree to condemn the leaks, Roberts must meet with his colleagues, one at a time. He should personally ask them whether they spoke to Biskupic or authorized someone to speak on their behalf—expressly or impliedly. These conversations will be extremely difficult. The goal here is not to punish the justices who were involved in the leaking. They cannot be fired. Rather, the justices should reach a candid and frank understanding of why they took those steps, and agree on how to avoid future disclosures. The nine members of the Court should work these matters out face-to-face, not through CNN.

Fourth, Roberts should talk to every law clerk, staff member and employee of the Court, one at a time. Unlike the justices, they can be fired. If any staff members are implicated in leaking, they should be publicly reprimanded. Future clerks need to know there are consequences for such actions—even if a justice authorized the leaks. To be sure, the COVID-19 situation may make this task both difficult and time-consuming. But these processes are essential, even at six feet of distance.

Fifth, and finally, all of the justices should then pledge that for the next term, in the midst of a presidential election, there will be no disclosures. None. Starve the press of their precious leaks. Biskupic already has enough for her next book. She doesn't need any more gossip. If the Court makes it through July 2021 without any leaks, the public will know this plan worked. That term will set an example for years to come.

Any competent leader would adopt a plan along these lines. I hope that Chief Justice Roberts has already begun such a process. Everything else Roberts does will be meaningless if he cannot bring his Court back into order. If he fails to get the Court in line, he will not be remembered as the next John Marshall. He will be lucky if people think of him as a mediocre Warren Burger. Progressives only flatter him with the Marshall comparisons to help achieve progressive results. They'll drop that adulation once he is no longer useful.

So far, I have presumed that Roberts is merely an innocent bystander in this process. Of course, there is the possibility that Roberts himself spoke to the press, or authorized others to do so on his behalf. If he did, the chief justice cannot lead by example. Here, the fish would rot from the head. If the justices know the chief is leaking information, they can be expected to respond in kind to get their own stories out. And Roberts would be in no position to lecture others.

If by next July, Roberts cannot step up to this challenge—either through his own ineptitude or his own malfeasance—then he should step down from the Court. I don't reach this conclusion lightly. But leadership matters even more than jurisprudence. Roberts continually frustrates me with his calculating approach to deciding cases. Indeed, this never-ending balancing act may have contributed to the toxic climate among the justices. Yet, I can live with Roberts' frustrating legal reasoning—it will have a short shelf-life. Most justices are forgotten as soon as they retire, and their precedents fade just as quickly. Roberts will suffer that fate, sooner or later.

However, I cannot abide by a crumbling Supreme Court. I would much rather have a competent chief justice who I constantly disagree with, but who can manage the Court, than a failed chief justice who sometimes writes decisions I partially approve of while the Court tears itself apart. An occasional five to four victory, which throws crumbs to the Right, is not enough to sit by idly as a whirlwind demolishes the marble palace from the inside. And I lay down this marker knowing full well that President Joe Biden will likely nominate Roberts' replacement. Chief Justice Merrick Garland, anyone?

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the co-author of An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.

The views expressed in this article are the writer's own.