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Legendary baseball player and manager Ted Williams once wrote a letter to Angels outfielder Jay Johnstone about improving his hitting. Among his tips was that “with two strikes, you just have to protect the plate.”
Williams’ advice to stay silent came to mind this week as another leak of classified information rocked the Supreme Court. (Previous leak of Dobbs the decision was not resolved). For Chief Justice John Roberts, the message is clear: it’s times like these when you have to protect the plate.
Roberts, of course, is famous for his baseball ratings. In his confirmation, he declared that “judges are like referees. Referees don’t make the rules. They apply them…No one ever goes to a football game to see the referee.”
((Win McNamee/Getty Images)
However, judges make laws not only for new precedent, but for the operation of the court system. Those rules are being broken.
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This week in a new leak, Justice Sonia Sotomayor attacked her colleague Brett Kavanaugh as an unemployed person who has never met an hourly worker. It was an unseemly insult and a departure from long-standing humanitarian law. (Sotomayor later apologized).
Additionally, Mollie Hemingway’s forthcoming book Justice Samuel Alito contains a harrowing account of how Justice Elena Kagan yelled at Justice Stephen Breyer loudly before the court. Dobbs the idea that “the wall was shaking.” (The letter suggests that Kagan was upset about Breyer agreeing to encourage dissenters to issue final opinions because of the growing threats against his conservative colleagues after the leak).
In an institution that prides itself on secrecy and disrespect, the Court appears to be free and biased in this leak. Even worse, people actually come to the Court “to see the referees.”
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The latest leak was published by New York Times, provided internal documents from various Supreme Court justices regarding the use of what is known as a “shadow docket” to issue decisions without oral arguments.
In particular, the leak came after Justice Ketanji Brown Jackson’s controversial speech at Yale Law School in which he criticized the use of the shadow docket by his conservative colleagues to issue decisions that were sometimes “completely absurd.”
Showing his flawless hitting form even when hitting, Red Sox slugger Ted Williams swings and misses the strike tree in the 1st inning of the Yanks-Red Sox game here, April 26. Yankee catcher Yogi Berra hangs on to the ball as umpire Joe Paparella looks on. The pitcher was Tom Sturdivant. (Getty Images)
The memos reveal the justices’ concern that the Environmental Protection Agency was gaming the system, placing illegal regulatory burdens on electric utilities despite a previous dissenting decision in Michigan v. EPA.
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Chief Justice Roberts noted that the EPA is using ongoing litigation to force agencies to spend billions of dollars to comply with the new rules: “In other words, the absence of a stay allowed the agency to effectively implement an important program that we held to be unlawful.”
The argument about the use of the shadow box is irrelevant to this story. Roberts’ biggest concern should be that this is the second strike: another leak from within the Court designed to harm other members of the Court.
Unlike Dobbs leak (which appears to be an attempt to influence the final opinion), this is a leak about a ten-year-old case. There was malicious intent to embarrass or obstruct the Court.
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The question is, who is to blame. There is no reason to think that the same person was involved in both leaks. Rather, the leaks seem to reflect a deteriorating culture at the Court.
After the Dobbs leak, Chief Justice Roberts launched a fruitless investigation using state marshals to find the person responsible. The use of marshals as lead investigators (rather than the FBI) was criticized at the time. Roberts may have been sympathetic to an executive branch agency that revolved around a sister branch supreme court.
Supreme Court Justice Ketanji Brown Jackson addresses the 2025 Supreme Court Fellows Program, February 13, 2025, at the Library of Congress in Washington, DC. (Photo by Jacquelyn Martin / POOL / AFP) (Photo by JACQUELYN MARTIN/POOL/AFP via Getty Images) (JACQUELYN MARTIN/POOL/AFP via Getty Images)
The result was a very bad result. The hacker succeeded in both leaking the idea and avoiding any accountability.
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The fact is that the culture of the Court and the ownership of the institution have always been the main safeguards of confidentiality. In a city floating on a leaky sea, the Court was an island of integrity and morality. “Players” can call balls and hit without playing a rewarding game.
That tradition quickly came to nothing after another major leak. For the future of the Court and the public’s faith, Roberts must put aside his reservations and bring in the FBI to find the criminal. Most importantly, he must ensure complete transparency in allowing the public to see the results wherever they may lead. In other words, with two strikes, Roberts needs to protect the plate.
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