Another breach of confidential Supreme Court deliberations landed this week, and once again, no one has been held responsible. The New York Times published internal memos from multiple justices concerning the court's use of the so-called "shadow docket", the practice of issuing rulings without full oral arguments. The leak marks the second major disclosure of private Supreme Court communications in recent years, following the still-unsolved leak of the draft Dobbs opinion that upended the court in 2022.
Legal scholar Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, argued in a Fox News commentary that Chief Justice John Roberts must change course and bring in the FBI to identify whoever handed the memos to the press. The federal marshals investigation Roberts launched after the Dobbs leak produced nothing. Turley called the latest breach "strike two."
The question facing the Supreme Court is not just who leaked confidential memos. It is whether the institution's leadership is willing to treat internal sabotage with the seriousness it demands, or whether the court will continue absorbing these blows without consequence.
The memos published by the New York Times came from various justices and focused on the shadow docket, a mechanism that has drawn increasing political attention. The documents reveal concern among the justices that the Environmental Protection Agency was, in Turley's framing, "effectively gaming the system, imposing unlawful regulatory burdens on electric utilities despite a countervailing earlier ruling in Michigan v. EPA."
Roberts himself addressed the substance directly. In one of the leaked memos, the Chief Justice wrote:
"In other words the absence of stay allowed the agency to effectively implement an important program we held to be contrary to law."
That statement carries significant weight. Roberts was describing an agency that, in his view, exploited the gap between a court ruling and its enforcement to force utilities to spend billions of dollars complying with regulations the court had already struck down. The EPA, in other words, was running out the clock, using litigation delays to impose costs that could never be fully reversed.
Unlike the Dobbs leak, which involved a pending decision with explosive political implications, this disclosure concerned a decade-old case. Turley noted the distinction matters. The Dobbs leak, whatever its motive, at least involved a live controversy. This one, he argued, "had a purely malicious purpose to embarrass or disrupt the court."
The ongoing tensions within the court over emergency appeals and shadow docket usage have been building for months. Justice Ketanji Brown Jackson delivered a speech at Yale Law School in which she denounced conservative colleagues' use of the shadow docket, calling some decisions "utterly irrational." That kind of public airing of internal disagreement, combined with actual document leaks, paints a picture of a court under serious institutional strain.
After the Dobbs draft opinion surfaced in 2022, Roberts launched an investigation, but he chose to run it through the federal marshals rather than the FBI. That decision drew criticism at the time. The investigation went nowhere. The leaker was never identified, never held accountable.
Turley's argument is straightforward: the same approach will produce the same result. The marshals lack the investigative tools and expertise the FBI brings to leak investigations. If Roberts is serious about protecting the court's internal deliberations, he needs to escalate.
The Washington Examiner reported that Roberts himself was a target of earlier leaked documents, specifically, a confidential memo he circulated to fellow justices while trying to build consensus in major Trump-related cases, including disputes over ballot access under the 14th Amendment, presidential immunity, and the Jan. 6 obstruction statute. That reporting described the leak as evidence of "growing fragility" in the court's internal deliberations.
Newsmax reported that the leaked documents specifically involved internal memos Roberts wrote while taking the lead on Trump-related cases. Roberts ultimately authored the majority opinions in key decisions, including the ruling granting former presidents broad immunity from prosecution. In one instance, Roberts wrote regarding a lower court's judgment: "I think it likely that we will view the separation of powers analysis differently."
Mark Paoletta, a conservative legal figure, offered a different angle on Roberts's broader performance, telling the Washington Examiner that "Chief Justice Roberts did a magnificent job this past term as chief justice." But a magnificent term on the merits does not resolve the security failure. The court can issue landmark opinions and still be institutionally compromised if its internal communications keep ending up in the press.
The leaks are not the only sign of fracture. Turley noted that in the same week as the latest breach, Justice Sonia Sotomayor publicly attacked colleague Brett Kavanaugh and later apologized. The details of her remarks were not specified, but the sequence, public attack, then walkback, fits a pattern of internal discord spilling into view.
Meanwhile, speculation about potential retirements by Justices Samuel Alito and Clarence Thomas has added another layer of political pressure. President Donald Trump discussed the prospect of naming new justices with interviewer Maria Bartiromo, a conversation that only intensifies the political stakes surrounding the court's internal dynamics.
Turley also referenced author Mollie Hemingway's forthcoming book, which reportedly contains an account of Justice Elena Kagan screaming at Justice Stephen Breyer before the Dobbs opinion, so loudly, according to the account, that "the wall was shaking." If accurate, that episode suggests the court's collegiality had already deteriorated well before the latest round of leaks.
The Supreme Court has long prided itself on confidentiality and insularity. Justices deliberate in private. Draft opinions circulate among chambers. Memos reflect candid assessments of cases, colleagues, and legal strategy. That system works only if the people inside it honor the compact. When someone breaks it, twice, and faces no consequences, the compact is effectively dead.
Roberts is famous for his baseball metaphors. At his confirmation hearing, he offered the line that has followed him ever since:
"Judges are like umpires. Umpires don't make the rules. They apply them... Nobody ever went to a ballgame to see the umpire."
Turley picked up the thread and ran with it. He pointed to legendary hitter Ted Williams, who once wrote a letter to Angels outfielder Jay Johnstone about improving his approach at the plate. Williams's advice was simple: "with two strikes, you simply have to protect the plate."
Turley's point landed cleanly. Roberts has two strikes. The Dobbs leak went unsolved. The shadow docket leak just arrived. If the Chief Justice responds the same way, marshals instead of FBI, internal review instead of real investigation, he is effectively telling the leaker there is no penalty for breaching the court's most sacred boundary.
The court's legitimacy does not rest solely on the quality of its opinions. It rests on the public's confidence that the institution operates with integrity, that justices can deliberate honestly without fear of political exposure. Every unsolved leak erodes that confidence. Every failed investigation tells the next would-be leaker that the risk is minimal.
The recent pattern of surprises and reversals at the Supreme Court has left observers across the political spectrum questioning the court's internal cohesion. Conservatives have particular reason for concern. The shadow docket memos showed justices grappling with an EPA that was defying their own rulings. The leak of those memos did not serve transparency, it served disruption.
And that distinction matters. Transparency is when a court publishes its reasoning for the public to evaluate. Disruption is when someone inside the court hands private deliberations to a newspaper to score political points or settle internal scores. The two are not the same, no matter how many times leak apologists pretend otherwise.
The open questions are significant. Who provided the memos to the New York Times? Was it a justice, a clerk, or staff? What was the motive, political, personal, ideological? And will Roberts finally bring in investigators with the tools to find answers?
Turley, who has testified more than 50 times before the House and Senate on constitutional matters, framed the choice starkly. The court can treat this as another embarrassment to absorb, or it can treat it as the institutional threat it is. The first approach has already been tried. It failed.
President Trump's public engagement with Supreme Court developments only raises the stakes. The court sits at the center of the most consequential legal battles in a generation, immigration, executive power, regulatory authority, constitutional limits on federal agencies. If justices cannot trust that their private deliberations will remain private, the quality of those deliberations will suffer. Candor requires confidentiality. Without it, every memo becomes a potential press release.
Roberts built his public identity around the idea that judges are umpires, neutral, disciplined, invisible. But even umpires protect the integrity of the game. When someone is stealing signs from inside the dugout, you don't shrug and call the next pitch.
You find the cheater. Or you accept that the game is rigged.
