Legal experts warn the Supreme Court's latest leak is 'highly damaging'

Following the revelation in the New York Times of private memoranda and conversations between Supreme Court justices, legal experts have warned that the leaking of such confidential information could be “devastating” for the Supreme Court.

The New York Times claimed it had internal memos and transcripts of deliberations that showed Chief Justice Thomas “shaped” the outcome of three key cases in which the Supreme Court was considering how to respond to the Jan. 6 rioters and grant former President Donald Trump some immunity for executive actions.

Roberts wrote the majority opinion, which the report said he “provided crucial assistance in reviewing the historic[immunity]case” and made a last-minute, unexplained change in the authorship of a politically biased opinion.

The leak follows an unprecedented leak of a draft of the Dobbs decision that overturned Roe v. Wade in 2022, and a concerted effort by Democratic lawmakers and the Biden administration to make sweeping reforms to the courts and ethics enforcement.

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Republicans including Sen. Lindsey Graham (R-Louisiana) and Sen. John Kennedy (R-Louisiana) argue the move is politically motivated, aimed at delegitimizing a Supreme Court that is currently dominated by Republican appointees.

Some legal experts say the leak is part of an attempt to undermine the Supreme Court.

“I think it's extremely destructive to the court when court insiders are leaking classified memos, classified emails and even supposed comments made at judge conferences to the press,” James Burnham of King Street Legal and a former senior Justice Department official told Fox News Digital.

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U.S. Supreme Court Chief Justice John Roberts arrives to attend the Senate impeachment trial of President Donald Trump at the U.S. Capitol in Washington, DC, on January 21, 2020. ((Photo by SAUL LOEB/AFP) (Photo by SAUL LOEB/AFP via Getty Images))

“This is devastating because the justices are less likely to be forthright with each other if they think what they say might end up in the New York Times. It means the justices are less likely to talk to each other. It means the justices are not able to debate each other as openly as they used to. And ultimately it undermines the decision-making of the Supreme Court,” he added.

“It seems to me like someone is trying to paint the chief justice and the other majority justices in a negative light when I think it was clearly a correct and courageous decision,” he said.

“If anyone on the Supreme Court should be blamed for being overly political in this case, it's the person who leaked the confidential internal documents,” said Carrie Sebeino, executive director of the Judicial Crisis Network.

She added that the case is “consistent with the left's ongoing public relations campaign against the Supreme Court.”

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On October 7, 2022, the nine U.S. Supreme Court Justices pose for their official portraits in the Supreme Court's East Conference Room in Washington, DC. (Photo: Alex Wong/Getty Images)

“This is an attempt to smear the institution of the Supreme Court, and as part of that, some justices are being targeted more than others,” she said.

John Thew, a constitutional lawyer who served in both the Bush and Bush administrations, said he believes the leak was likely politically motivated and designed to either keep Roberts in the center or push him to the center left for his next term, especially if Trump is elected this November.

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“Because he is the chief justice of the Supreme Court, he has the right to voice opinions in majority cases, which is almost always the case, and he also has executive powers that other justices do not have,” Schue said. “Just as the president embodies Article II of the Constitution, the chief justice of the Supreme Court embodies Article III of the Constitution.”

“It is truly horrifying that the sacred secrecy of the deliberation and opinion-writing process has been violated and the norms have been subverted once again,” Xu said.