I think that's a question of construing the SCt's code of conduct, what counts as official duties, whether it even applies to ex-Justices, etc. If a currently serving Justice leaked them, as the article authors might know, that may have violated 4.D.4.
If you don't want a world where every internal judicial memo serves as a potential weapon in a political fight, available to whoever's willing to violate the ethics rules first, you need the attorney discipline system to take leaks like these seriously.
6/6
Court confidences aren't a 'culture of secrecy' any more than atty-client privilege is. A culture of leaking would make it impossible for judges to disagree on paper w/o it becoming a rhetorical weapon—or a real one, given the assassination attempt on Justice Kavanaugh.
5/
There's no First Amendment right to violate the Rules of Professional Conduct, including by soliciting leaked materials from a court employee. If attys can't post confidential documents online, they can't do so via the NYT either.
4/
If there's a public interest in a memo—or a document under seal, etc.—the choice of whether to release it is for the court, not an individual leaker. And attys don't get a free pass from their ethics rules by getting jobs as journalists, any more than dr's or social workers.
3/
A lawyer can't knowingly assist a judge or judicial officer in violating their rules of conduct. Both the Justices and Court employees have agreed to keep the Court's internal deliberations in confidence—the only way it can deliberate effectively.
2/
Whatever one makes of these memos, whoever leaked them breached the trust that allows courts to do their jobs.
One of the article's coauthors, a licensed atty in NY, may have also violated the state's ethics rules and be subject to discipline.
1/
reason.com/volokh/2026/...
Will be appearing on this Originalism panel at the Organization of American Historians conference this weekend: @oah.org
www.oah.org/conferences/...
Coming up on Monday, for Harvard Law affiliates. Looking forward!
“I will make your heirs as numerous as the stars of heaven, but not nearly so numerous as the crumbs your kids will leave after eating a single piece of matzah each”
Kind of darkly hilarious that we’re supposed to go through the whole house to get rid of bread crumbs, only then to start a week of eating matzah, which generates more crumbs per square meter per second than any substance known to man
My favorite Passover-related story about vampires, from Scott Alexander. Chag sameach!
slatestarcodex.com/2017/04/13/c...
April:
251 years ago today:
9–0 in favor of the plaintiffs!
www.supremecourt.gov/opinions/25p...
March:
Realized I hadn't yet posted the syllabus for my 2026 seminar on Originalism and Its Discontents. Now the rest of you can follow along at home!
stevesachs.com/syllabi/orig...
Starting today! Looking forward. Send your suggestions for rules amendments to RulesCommittee_Secretary@ao.uscourts.gov
February:
Looking forward to meeting our students in tonight's Harvard Law seminar on Abortion: Law, Policy, and Ethics!
Here's the syllabus, so the rest of you can follow along at home:
stevesachs.com/syllabi/abor...
Looking forward to welcoming my students to today's Conflict of Laws class—and the rest of you can follow along with the syllabus at home:
stevesachs.com/syllabi/conf...
Taking off my weather hat for a moment for something more important than the forecast…today is International Holocaust Remembrance Day.
I’ve shared before that my grandparents (mom’s side) are both Holocaust survivors. Please do me a favor and read their story in this thread.
Pearly, 2013–2026
Congratulations to my Civil Procedure students on finishing their fall semester and starting a new one!
Now you can try the final exam for yourselves at home:
stevesachs.com/Exam_CivPro_...
And on the relationship of anti-Zionism, antisemitism, and the genocide libel:
An excerpt on the violence of the protest movement's aims: 4/
And on @ssrn.bsky.social : 3/
papers.ssrn.com/sol3/papers....
