Legendary baseball player and manager Ted Williams once wrote a letter to Angels outfielder Jay Johnstone about improving his hitting. One of his pieces of advice was that “you just have to protect the plate with two strikes.”
Williams’ advice not to strike came to mind this week as a new leak of confidential information rocked the Supreme Court. (The earlier leak of the Dobbs decision remained unresolved.) For Chief Justice John Roberts, the message is clear: In times like these, you have to protect the record.
Roberts, of course, is known for his own baseball analogies. In his confirmation, he stated that “judges are like referees. Referees don’t make the rules. They apply them… No one has ever gone to a ball game to see the referee.”
Supreme Court Chief Justice John Roberts attends President Donald Trump’s remarks during a joint session of Congress on March 4, 2025, at the U.S. Capitol. (Win McNamee/Getty Images)
Yet judges not only make rules in new precedent, but also in the operation of the legal system. Those rules are being broken.
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The same week as the new leak, Judge Sonia Sotomayor attacked her colleague Brett Kavanaugh as essentially an outrageous jerk who had never met an hourly worker. It was an unfair insult and a departure from the court’s long-standing rules of civility. (Sotomayor later apologized.)
In addition, a forthcoming book by Mollie Hemingway about Justice Samuel Alito contains an embarrassing account of how Justice Elena Kagan allegedly yelled so loudly at Justice Stephen Breyer before the Dobbs ruled that the “wall was shaking.” (The book suggests that Kagan was angry because Breyer agreed to push the dissenters to release the final opinions, in light of increasing threats against conservative colleagues after the leak.)
For an institution that prides itself on its confidentiality and insularity, these leaks make the court look increasingly porous and partisan. Worse still, people actually come to court “to see the referees”.
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The most recent leak was published by the New York Times, which was passed on internally memos from several Supreme Court justices on the use of what is known as the “shadow docket” to make rulings without oral arguments.
Notably, the leaks came after a controversial speech by Judge Ketanji Brown Jackson at Yale Law School, in which she denounced her conservative colleagues’ use of the shadow role to release decisions that were sometimes “completely irrational.”
Red Sox slugger Ted Williams shows his impeccable batting form even when striking out, swinging and missing against Yankees’ pitcher Tom Sturdivant. Yankees catcher Yogi Berra stands behind the plate. (Getty Images)
The memos reveal the justices’ concern that the Environmental Protection Agency was essentially gaming the system and imposing unlawful regulatory burdens on electric utilities, despite an earlier ruling in Michigan v. EPA.
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Chief Justice Roberts noted that the EPA used the pending lawsuits to force utilities to spend billions of dollars to comply with the new regulations: “In other words, the stay did not allow the agency to effectively implement an important program that we found violated the law.”
The controversy over the use of the shadow scroll is not relevant to this story. The most immediate concern for Roberts should be that this is strike two: another leak within the court that was clearly intended to injure some members.
Unlike the Dobbs leak (which appeared to be an attempt to sway the final opinion), this is a leak about a decade-old case. It had a purely malicious purpose to embarrass or disrupt the court.
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The question is again the identity of the perpetrator. There is no reason to believe the same person was involved in both leaks. Rather, the leaks appear to reflect a deteriorating culture at the court.
After the Dobbs leak, Chief Justice Roberts launched a fruitless investigation through the federal marshals to find the person responsible. The use of the marshals as lead investigators (instead of the FBI) was criticized at the time. Roberts may have been sensitive to an agency with an executive branch squeezing its way into a sister department’s Supreme Court.
Judge Ketanji Brown Jackson speaks for the Supreme Court Fellows Program at the Library of Congress in Washington, DC on February 13, 2025 (Jacquelyn Martin/Pool/AFP via Getty Images)
The result was the worst possible outcome. The perpetrator managed to leak the opinion and avoid any responsibility.
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The fact is that the culture and institutional identity of the court have always been the greatest protection of confidentiality. In a city floating on a billowing sea of leaks, the court was an island of integrity and civility. The “referees” could call balls and strokes without playing the leak game.
That culture is fast becoming a relic in the wake of another major leak. For the future of the court and the public’s trust, Roberts must put aside his reservations and call in the FBI to find the perpetrator. Most importantly, he must ensure total transparency so that the public can see the results wherever they lead. In other words, with two strikes, Roberts must protect the plate.
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