From an administrative perspective, John Roberts may go down as one of the most incompetent Chief Justices in history. Appointed to the panel’s top position even though he had never heard a case on the Supreme Court, Roberts went from being a first-time judge on a US Federal Appeals Court to Chief Justice of the US Supreme Court in a staggeringly fast five years, thanks to the need of George W. Bush to secure his legacy on the Court.
As the New York Times outlines, in his 17 years as the judicial and administrative lead of the Court, Roberts has done virtually nothing to update and codify the operations of the Court in modern times. The first Chief Justice of the Digital Age, he rules from the bench on issues dealing with every citizen’s privacy and online liberties, but he’s done little to make sure the Court itself is keeping up with the times and those rulings. That not only foretold the unsatisfying “we don’t know” report about the leak of the Dobbs decision; it likely enabled and preordained the outcome, as well as the leak itself. And it also means no one is dissuaded from violated the accepted norms again.
When interviewed by investigators, staff outlined practices that would not stand in a modern business. Employees routinely shared passcodes to secure areas. Passwords to internal systems haven’t been changed in years, and Justices regularly give clerks access to their files via their passwords. Policies do not exist about accessing Court documents, which are confidential but do not fall under classified document protocols, outside the Courthouse. While access to printed and handwritten notes and drafts was restricted inherently thanks to the physical limitations of paper, digital files could be accessed and read by anyone looking at a screen anywhere thanks to the current lack of restrictions. (On the other hand, the Court’s security with even paper documents is lacking: the report noted “burn bags” were left unattended for multiple days by Court officials when they should be disposed of nightly.)
According to investigators, of the roughly 310 employees who work at the Supreme Court including building maintenance staff, court operations team, and public tour guides (but not including the Supreme Court Police), more than 80 had access to the computer files holding the draft opinion. And that doesn’t include the nine Justices themselves. Less than half of the people who could access the files were clerks for the Justices. More people had access to these papers than Florida school library patrons to Martin Luther King speeches. Oh, and the Justices themselves weren’t subject to sworn depositions or official interviews during the investigation, essentially put off-limits to probes into their conduct due to an unwritten privilege of office.
This is what happens when you have conservatives overseeing institutions. Their inherent fear of change handicaps the need to modernize. Roberts is obviously relying on tradition to oversee Court operations, and that’s something he needs to stop. He oversees a Court where justices–particularly those appointed by Republicans–have a recurring habit of lying their asses off. For all their cries to maintain tradition, the conservatives on the Court have demonstrated their desires to shatter them because IOKIYAR. Thomas taking more than a decade to disclose his family’s financial ties to conservative groups. Alito sassing Obama during a State of the Union address. Kavanaugh outright lying during his confirmation hearings. Barrett accepting a $2 million advance for a book deal from a conservative publishing imprint that wasn’t revealed until a year after her nomination; without irony, the vocal anti-choice advocate is supposed to write about how judge’s personal feeling should not impact their legal decisions.
Particularly horrifying to Court watchers is Clarence Thomas’s continuing refusal to recuse himself from cases that directly involve his wife and his wife’s actions. These Justices reflect a disdain for following ethics that were honored by their predecessors, and Roberts has let them slide without comment. The result: record low public trust in the Supreme Court. Roberts is content to watch the legitimacy of the Court decline because he refuses to recognize the rules of “The Game” have changed and conservatives do not believe they have to follow rules anymore. And that includes the conservatives on the Court and working for it.
Perhaps the worst tradition Roberts upholds is the isolation the Court believes it deserves: Roberts holds the Court acts independently, which is why he ordered the ill-equipped Marshal of the Supreme Court to conduct the investigation into the leak instead of the better-suited FBI, the Secret Service or even the US Marshals. Roberts wants the Court to be insular even when that isolation jeopardizes justice, showing that the Court can’t be trusted to oversee itself.
The solution: the Supreme Court must accept an independent Inspector General, nominated by the Executive Branch and approved by the Senate, to oversee the operations of the Court from efficiency, security and ethical standards. (Call it SCOTUS COO, if you want.). The SCOTUS IG will develop a set of ethical obligations for the staff and justices of the Court. They will supervise the security of all documents at the Court and they will be empowered to independently investigate reports of unethical, unprofessional and illegal conduct, as the inspectors general of Executive Branch offices are. And the SCOTUS IG reports will be released to the public, as Executive Branch reports are.
As Kevin McCarthy stands poised to be the most ineffective Speaker of the House in modern history because he’s letting radicals use loopholes in systems and rules to relegate the Speaker’s role to that of a maitre d’ at an Arby’s, Roberts continuing mismanagement not just guarantees the Court will run like a 1950s law firm; it guarantees more breaches of security as the new members and staffers of the Court decide their duty to the nation is less important than their usefulness to their political causes. The Court can no longer be trusted to police itself thanks to John Roberts turning it into a free-for-all of political ambition.