Finally, a Supreme Court Accountability Mechanism... for Clerks

The Roberts Court moves further into the shadows—and highlights the toothlessness of its own code of conduct along the way

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What Happened?

In the wake of a slew of ethics scandals and amid an ongoing torrent of opaque, partisan rulings, approval ratings for the Roberts Court are near historic lows. An overwhelming majority of Americans want Supreme Court justices to be held to an enforceable code of conduct—the bare minimum standard of accountability for any other public servant. Now, the Roberts Court has, at last, opted to enforce a code of conduct—just not for the justices. According to reporting from The New York Times, the nation’s highest court is now making its clerks and employees sign non-disclosure agreements (NDAs) at the start of every term, creating a mechanism for the Court to enforce what were previously more informal pledges of confidentiality.

The inciting incident seems to have been a September 2024 report from the Times that surfaced the story of the critical role Chief Justice John Roberts played in crafting the decision in Trump v. U.S., wherein the right-wing majority declared Trump to be largely immune from criminal prosecution for his attempts to overturn the 2020 Election. That reporting revealed that Roberts circulated an internal memo urging his colleagues to take up Trump’s immunity appeal and expressing his belief that the Court should rule in Trump’s favor. Such internal dealings being made public, especially after the leak of the 2022 Dobbs decision overturning Roe v. Wade, seems to have jolted the Chief Justice into action in a way that Clarence Thomas’s undisclosed, billionaire-funded vacations never have.

If the Roberts Court wants to fix its public image, it has some straightforward options. The right-wing justices could implement a binding code of conduct; stop legislating from the bench using unreasoned shadow docket opinions; and quit twisting the Constitution like a wet washcloth to wring out wins for their wealthy friends and dark-money benefactors at the expense of our rights and freedoms. Requiring Court staff to sign NDAs might scare current and future employees out of blowing the whistle on the Court’s next horrifying decision or the political machinations behind it, but it is hardly a good-faith effort to gain transparency and accountability that could earn the Court legitimacy.

What’s the Broader Context?

The right-wing majority seems to be allergic to transparency and accountability. Last year, as lower courts temporarily blocked some of the Trump administration’s most harmful policies, the Roberts Court bent over backwards to accommodate the president, largely through unreasoned decisions on the Court’s shadow docket. Court Accountability’s October report showed that the Court had decided for the administration in 90% of its shadow docket decisions—a stark contrast to Trump’s 40% success rate in district and circuit courts. (Stay tuned for a forthcoming update to that report!)

In case after case, the Court declined to provide any explanation for how it had come to its decisions—even as it demanded fealty to those decisions from lower court judges. In one concurrence, Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, scolded lower courts for not divining the reasoning of the Court in its unexplained shadow docket orders, declaring that “judges are duty-bound to respect ‘the hierarchy of the federal court system created by the Constitution and Congress.’” In other words, follow our orders, even if there’s no way to be sure what they actually say.

The crackdown on clerks is also particularly ironic given how stringently the Roberts Court has resisted calls to adopt an enforceable code of conduct for justices. As the Times article details, clerks were already given a code of conduct by the Court prior to the introduction of these NDAs. A 2018 version of that code of conduct specifies that clerks have a duty of “complete confidentiality,” but contains no mechanism for enforcement. Now, the Court has taken steps to make the code of conduct for its employees binding—while balking at the idea of doing the same for its justices. One set of rules for the staff, another for the bosses.

Stanford Law Professor Jeffrey L. Fisher told the Times that, after decades of relying on norms, the Court’s use of NDAs signals that the justices “are unwilling to simply rely on trust.” The American public can no longer simply rely on trust either. It’s time for Congress to rein in the Roberts Court.

What Can You Do?

• Contact your representatives and senators and urge them to enact meaningful reform to hold the Roberts Court accountable, including:

  • The Shadow Docket Sunlight Act, which would require the Court to explain its shadow docket decisions and make justices’ votes on those decisions public.

  • The Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, which would create a binding, enforceable code of ethics for the Court.

• Sign Alliance for Justice’s petition telling Congress to pass Supreme Court ethics reform.

• Attend a No Kings event in your area on March 28.

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