The Great and Powerful Oz Revealed: The Ethics and Wisdom of the Scotus Leaks in National Federation of Independent Business v. Sebilius

On July 1, 2012, Jan Crawford of CBS News reported details of the confidential deliberations of the Supreme Court of the United States in National Federation of Independent Business v. Sebilius. Specifically, she revealed that Chief Justice John G. Roberts began working with Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel A. Alito to draft an opinion striking the Patient Protection and Affordable Care Act (the “PPACA”) as an unconstitutional exercise of Congress’s power to regulate commerce. According to Crawford, he later had a change of heart and worked with Associate Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayer, and Elena Kagan to draft the majority opinion upholding the act under Congress’s taxing power. The media seized upon this reported change of position. Conservative media outlets decried Roberts’s actions as the result of political pressure from the left. Others suggested that Chief Justice Roberts sought to promote intergovernmental harmony by upholding historic legislation that Congress had passed and the President had approved.Ms. Crawford relied on information that “two sources with specific knowledge of the deliberations” had provided to her. One important question has escaped media attention: can or should Justices of the Supreme Court of the United States discuss details of deliberations with the press, even anonymously? This essay attempts to answer that question by addressing the ethical implications of such statements from the Court, the conflict between the restrictions on judicial speech and the First Amendment rights of the Justices of the Court, and the wisdom of such extrajudicial statements. Both the ABA Model Code of Judicial Conduct and the Code of Conduct for United States Judges contain restrictions on extrajudicial speech. Specifically, those codes prohibit judges from commenting publicly on a pending or impending case. These restrictions on judicial speech would likely survive a constitutional challenge under the First Amendment because of the compelling government interest in maintaining the independence, integrity, and impartiality of the judiciary. Unfortunately, neither the Code of Conduct nor the Model Code apply to the actions of the SCOTUS informants in this instance. First, the Supreme Court is not subject to the Model Code because that code serves solely as a model on which specific jurisdictions may choose to base their own codes of conduct. The Judicial Conference of the United States did adopt a version of the Model Code, the Code of Conduct for United States Judges. That code, however, does not lust the Supreme Court among the judges to whom it is intended to apply. Moreover, the Supreme Court created the Judicial Conference and is not subject to its disciplinary authority. The second reason neither code applies to the SCOTUS leaks is because Jan Crawford’s story broke days after the Supreme Court issued its opinion in National Federation. Because the decision of the Court was not appealable, that case was no longer pending at the time the confidential information was leaked to Ms. Crawford. Thus, the actions of Ms. Crawford’s source did not violate either the Model Code or the Code of Conduct.Although the SCOTUS leaks did not violate either the Code of Conduct for United States Judges or the Model Code of Judicial Conduct, such anonymous comments to the press about the internal deliberations of the Court denigrate the independence, integrity, and impartiality of the institution. In so doing, the actions violated Canons 1, 2, and 3 of the Code of Conduct and Canons 1 and 2 of the Model Code. Moreover, the Comment to Rule 3(A)(6) cautions judges to take care in making public comments concerning a case from the judge’s own court, even if otherwise permitted by the rules, because such comments may “denigrate public confidence in the judiciary’s integrity and impartiality, which would violate Canon 2A.” Moving forward, the Court and its staff should aspire to achieve the overarching principles set forth in the canons of both the Code of Conduct and the Model Code. The Supreme Court must return to a minimum level of discretion and decorum if it hopes to restore its reputation for independence, integrity, and impartiality. If the Supreme Court cannot strive to achieve these goals, there is little hope lesser courts will be as successful in their quests to do so.