Searching clerks' phones to find out who leaked the Dobbs opinion sets a dangerous precedent of exploiting digital rights.
. The justices might claim they hold no conflict of interest in those future cases, but their mindset will be forever changed by this boondoggle.
The next time the court hears a challenge to the government’s power to track and surveil, the justices may only think of their own power to do the same. For a chief justice like Roberts, who’s obsessed with maintaining the legitimacy of his institution, the dragnet will prove a self-inflicted wound. Yes, the leak may have eroded trust, but the investigation will likely cause even more lasting damage. Worse yet, it is consistent with a damming theme for the court, an institution willing to uphold rights on paper while violating them in practice.
The Supreme Court is now its own worst enemy. Courts’ openness and justice grant them power, not marshals and fencing. The threat to the court’s legitimacy comes from its politicized reasoning and the violation of its own rules inand other recent cases, not a leak. When the court casts aside its own restraints, turning extremism into law and its chambers into a police state, it reduces what was once deemed a “temple of justice” into a petty office Americans increasingly hold in contempt.
This bunker mindset is not compatible with the values of an open court or an open society. The next time the court hears a challenge to the government’s power to track and surveil, the justices may only think of their own power to do the same. The most frustrating part is that the justices know better. In public statements, they wax poetic about the importance of nonpartisanship, openness, fairness, and commitment to the rule of law.
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