New Leak of Confidential Information Reported at the Supreme Court

On April 18, 2026, The New York Times published 16 pages of internal Supreme Court memos that had never been intended for public consumption [1][2]. The documents — exchanged among justices over five days in February 2016 — reveal, in the justices' own words, how the Court's conservative majority fashioned the "shadow docket" into a vehicle for sweeping policy decisions, beginning with the unprecedented stay of President Barack Obama's Clean Power Plan. The publication marks the third major breach of Supreme Court confidentiality in four years, following the 2022 Dobbs draft opinion leak and a January 2026 cybersecurity incident [9], and it arrives as the still-unresolved Dobbs investigation approaches its statute of limitations.

What Was Leaked

The documents are internal memoranda — not a draft opinion, not conference notes, and not a vote tally. They are the written arguments justices circulated privately to persuade one another on a procedural question: whether to grant an emergency stay of the EPA's Clean Power Plan regulations before any circuit court had ruled on the merits [1].

Chief Justice John Roberts authored a memo arguing that the Court's failure to stay a prior EPA regulation — in Michigan v. EPA — had allowed the agency "to effectively implement an important program we held to be contrary to law" [1]. Justice Samuel Alito wrote separately that without a stay, the Court's ability to provide "meaningful judicial review" risked becoming "a nullity" [1]. Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor opposed the stay, suggesting instead that states seek extensions of regulatory deadlines [1].

One detail stood out to legal analysts: Justice Sotomayor's memo lacked official letterhead, a signature, or proper dating — suggesting that the source had access to a non-final version of internal correspondence [1]. The Times did not disclose who provided the documents. Reporters Adam Liptak and Jodi Kantor published a narrative account, a chronology, a list of takeaways, and the memos themselves [1].

The Shadow Docket: What the Memos Reveal

The term "shadow docket," coined by University of Chicago law professor William Baude in 2015, refers to the Court's orders and summary decisions — everything outside the roughly 60-70 cases it hears with full briefing and oral argument each term. Historically, this docket handled matters so urgent they required immediate resolution, primarily death penalty stays [10].

The leaked memos trace a turning point. On February 9, 2016, the Court voted 5-4 along ideological lines — Roberts, Alito, Clarence Thomas, Antonin Scalia, and Anthony Kennedy in the majority — to stay the Clean Power Plan before the D.C. Circuit had even heard oral arguments [2]. The order was a single paragraph, unsigned, with no written reasoning [2]. West Virginia Solicitor General Elbert Lin, who filed the emergency application, later acknowledged: "This had never been done" [2].

The memos show that Roberts was the driving force. He framed the question not as an emergency requiring immediate judicial intervention, but as a matter of institutional self-defense — the Court needed to act to prevent the executive branch from mooting judicial review by implementing regulations before challenges could be heard [1]. This framing became the template for what followed.

In the decade since, the shadow docket has been used to allow the Trump administration to implement the travel ban, cut the federal workforce during ongoing litigation, and maintain a ban on transgender military service while cases moved through the courts [2][10]. Justice Ketanji Brown Jackson has publicly criticized this expansion, noting that when she clerked at the Court in 1999, the emergency docket was used "almost exclusively for death row inmates" [10]. She has warned that the Court "consistently and casually divests the lower courts of their equitable authority" through unsigned orders [10].

Who Had Access — and How Secure Is the Court?

The question of who leaked the memos leads directly to the question of how the Court handles confidential documents — and the answer, based on the Court's own admissions, is: not well.

The 2023 report on the Dobbs leak, led by Court Marshal Gail Curley, found that at least 91 people — 82 staff members and the nine justices — had access to the draft opinion [4][12]. Investigators interviewed 97 Court personnel, reviewed computer networks and printer logs, and required all personnel to sign sworn affidavits under penalty of perjury [3][4]. The investigation concluded it was "unable to identify a person responsible by a preponderance of the evidence" [4].

The report also catalogued systemic security failures. COVID-era telework policies had made it easy to remove hard copies of sensitive documents from the building. Printers used by justices' chambers were locally connected rather than networked, meaning there was "very little logging capability" to track who printed what [4][12]. The investigators recommended restricting access to sensitive documents, limiting hard copy circulation, and implementing print-job tracking [4].

Whether those recommendations were implemented remains unclear. The Court has not publicly confirmed the adoption of clerk tracking systems or printing restrictions that were reported to be under consideration after the Dobbs investigation [12][13]. A January 2026 cybersecurity breach — in which external actors reportedly accessed Court systems — raised further doubts about the institution's information security posture [9].

For the 2016 memos now published by the Times, the pool of people with access is harder to determine. The documents are a decade old. Former clerks, retired justices' staff, and former court employees may have retained copies. The passage of time both widens the circle of potential sources and complicates any investigation.

The Dobbs Investigation: Unfinished Business

The new leak lands in a context shaped by the failure to resolve the last one. Four years after Politico published Justice Alito's draft opinion overturning Roe v. Wade on May 2, 2022, no one has been identified, disciplined, or charged [3][4].

Chief Justice Roberts called the Dobbs leak "a singular and egregious breach" of institutional trust [4]. Former Homeland Security Secretary Michael Chertoff, brought in to review the investigation, assessed it as "thorough" [3]. Justice Alito stated publicly that he had "a pretty good idea who is responsible" but said this fell short of "the level of proof needed to name somebody" [3].

The FBI became involved in the case after the initial Marshal-led investigation stalled. In May 2025, FBI Deputy Director Dan Bongino announced the Bureau was prioritizing the investigation with weekly briefings [3]. Attorney General Pam Bondi, asked in February 2026 whether the Biden-era DOJ had identified the leaker, said she "cannot discuss" the matter [3]. The five-year statute of limitations for prosecuting theft of government property — one of the few statutes that might apply — expires in approximately May 2027 [3].

No person has ever been criminally convicted for leaking Supreme Court deliberations in the institution's 235-year history [5][6]. The closest precedent dates to 1919, when Ashton Embry, a law clerk to Justice Joseph McKenna, was indicted for sharing court decisions with Wall Street traders before they were publicly released. The Department of Justice ultimately dismissed the case [6].

Source: Wikipedia / Historical Records

Data as of Apr 19, 2026CSV

Legal Exposure: A Patchwork of Weak Tools

The legal mechanisms available to investigate and prosecute a Supreme Court leaker are surprisingly thin. No federal statute explicitly prohibits someone with authorized access to Court documents — whether a justice, a clerk, or a staff member — from disclosing them to the press [5][6].

Several statutes could theoretically apply. Under 18 U.S.C. §1001, a leaker who denied involvement under oath could face prosecution for making a false statement in a judicial matter [6]. The D.C. Circuit has held that intangible information qualifies as a "thing of value" under federal theft statutes, which could support a theft-of-government-property charge [6]. But these are indirect routes — they would punish the cover-up or the taking, not the act of disclosure itself.

The leaker's identity matters for what consequences they face. Law clerks operate under a code of conduct established in the 1980s, and leaking plainly violates it — grounds for termination and potential disbarment, which would effectively end a legal career [5][6]. But no external body enforces this code. As the Georgetown Journal of Legal Ethics has noted, "no legally binding ethical code governs Supreme Court clerks," and when the Court adopted its own Code of Conduct in 2023, it included no external enforcement mechanism [5]. Discipline depends entirely on the nine justices themselves, who must "take appropriate action upon receipt of reliable information indicating the likelihood of misconduct by a Court employee" [5].

For a justice — or a justice's spouse — the picture is even murkier. Justices are not employees and are not subject to the clerk code of conduct. They cannot be fired. Impeachment is the only constitutional remedy, and no justice has been removed through that process since the failed attempt against Samuel Chase in 1805 [5].

Contractors and other non-employee personnel fall into yet another category. Depending on their agreements, they may face civil liability for breach of contract, but criminal prosecution would require fitting their conduct into the same ill-fitting statutory framework [6].

The Transparency Argument

Not everyone views Supreme Court leaks as purely destructive. A body of legal scholarship argues that the Court's extreme secrecy is itself a problem — and that disclosures, while procedurally damaging, can serve democratic accountability.

Steve Vladeck, whose scholarship on the shadow docket has been widely cited, has argued: "For a Court whose legitimacy depends largely on the public's perception of its integrity, the growth of unseen, unsigned, and unexplained decisions that disrupt life for millions of Americans can only be a bad thing" [11]. The leaked memos, on this view, provide the public with information it should have had all along — evidence that the shadow docket was not an organic response to emergencies but a deliberate strategic choice by specific justices.

Congressional Democrats have introduced legislation requiring the Court to provide written reasoning for shadow docket orders affecting federal policy [14]. The Syracuse Law Review has called for televising oral arguments as part of a broader transparency agenda [11]. Supporters of these measures argue that an institution making binding decisions with life-or-death consequences for millions of Americans should not operate with less transparency than a city council.

The opposing view holds that deliberative secrecy is what allows justices to change their minds, negotiate compromises, and produce better decisions. If every internal memo might become public, the argument goes, justices will stop putting their reasoning in writing — driving deliberation underground rather than into the open. The Dobbs leak illustrated this risk concretely: it triggered protests outside justices' homes and an assassination attempt against Justice Brett Kavanaugh [3][4].

How Other Courts Handle Secrecy

The U.S. Supreme Court's confidentiality regime stands out internationally for its informality. In the United Kingdom, draft judgment confidentiality is codified in Civil Procedure Rules Practice Direction 40E, which explicitly restricts who may see draft judgments and prohibits disclosure of "the draft judgment or its substance" to any unauthorized person [7]. Violations are prosecutable as contempt of court, carrying penalties of up to two years' imprisonment [7].

This framework has been tested. In HM Attorney General v. Crosland (2021), a barrister who deliberately leaked a UK Supreme Court decision to the Press Association was found guilty of criminal contempt for conduct that "interfered with the administration of justice" [7]. In R (The Counsel General for Wales) v. Secretary of State for Business (2022), a chambers that published an embargoed judgment summary on social media five hours early prompted binding guidelines from the Master of the Rolls establishing that legal representatives face "real risk of being the subject of contempt proceedings" for embargo violations [7].

The European Court of Justice operates under even stricter protocols. Judges deliberate in secret, with no dissenting opinions published — a design intended to shield judges from political pressure from their home countries. The handling of classified information before the ECJ is governed by formal procedural rules with enforcement mechanisms.

By contrast, the U.S. Supreme Court has relied largely on tradition, personal honor, and the career incentives of law clerks — who know that a leak would destroy their professional prospects if discovered. The Dobbs investigation revealed that this informal system had not kept pace with the realities of remote work, networked communications, and the political stakes surrounding the Court's decisions [4][12].

What the Leak Reveals About the Court Today

The content of the leaked memos implicates specific chambers and reveals internal dynamics that were not previously public. Roberts emerges as the architect of the shadow docket strategy, framing emergency stays as necessary to preserve the Court's institutional authority against executive overreach [1][2]. Alito appears as an eager supporter, pressing the case for aggressive intervention [1]. The liberal justices — Breyer, Kagan, and Sotomayor — are shown urging restraint, warning against setting a precedent for summary action on major regulatory questions [1].

The timing of the leak matters. It arrives as the shadow docket remains central to the Court's handling of Trump administration policies in his second term, and as public approval of the Court sits near historic lows. Whether the source intended to influence current cases, embarrass specific justices, or simply inform the public is unknown.

Conservative commentators have framed the leak as evidence that the Times and sympathetic insiders are working to delegitimize the Court. Fox News legal analyst Jonathan Turley has called for Roberts to bring in the FBI to protect the Court's credibility [8]. Others have questioned which chambers had access to the 2016 documents and whether a current or former clerk is responsible.

The Court itself has not publicly commented on the Times report. No investigation has been announced. The institution's track record — 97 interviews, zero accountability in the Dobbs case — does not inspire confidence that this time will be different.

The Deeper Question

The April 2026 leak sits at the intersection of two problems the Court has not resolved. The first is operational: a security infrastructure that its own investigators have described as inadequate, and that has now failed to prevent at least three significant breaches in four years. The second is philosophical: whether an institution that makes some of the most consequential decisions in American public life can sustain a level of secrecy that no other branch of government enjoys, in an era when that secrecy is increasingly seen not as a safeguard of judicial independence but as a shield against democratic accountability.

The memos themselves suggest the answer. They show justices doing exactly what the public has a right to understand — debating how to use their power, making arguments for and against an unprecedented procedural move, and ultimately choosing a path that reshaped the Court's role in American governance for a decade. The question is not whether the public should eventually see this kind of deliberation. The question is who gets to decide when.