In 1972, when deer was in deliberation, a Washington Post without a signature The story detailed the judges’ internal wrangling over the matter. The Post story – which emerged days after judges ordered a second round of arguments in the case – was attributed to unnamed informed sources and did not cite any draft notice or internal memorandum, but described them in great detail.
In 1979, ABC News Supreme Court correspondent Tim O’Brien ran stories predicting the outcome of two rulings within days of publication. Chief Justice Warren Burger has launched an investigation into whether anyone in court violated protocol, and a government printing worker involved in setting the court’s decision type has been moved to another division. The staff member denied leaking any information.
Before the Supreme Court decision highly publicized 2012 decision confirming individual Obamacare mandatesome legal analysts believed they saw indications that the judges’ internal deliberations had leaked.
Eleven days before this decision, conservative columnist Avik Roy, writing in Forbes, cited “third-hand” sources predicting that Judge Anthony Kennedy would vote to overturn the warrant.
A speech delivered by Sen. Patrick Leahy (D-Vt.) in May of this year urging Chief Justice John Roberts to declare the mandate constitutional also led to speculation that Leahy had said inside that the court chief was on the fence.
A few days later, National Review and conservative syndicated columnist George Will both published calls for Roberts not to side with liberal justices believed to support Obamacare’s tenure.
Most of the comments gave no direct indication of insider information, but the timing and ultimately prescient focus on Roberts led some observers to believe the reports were inspired by a whisper campaign based on hints from people inside. inside the court.
Roberts sided with the Liberals in a 5-4 vote that upheld the mandate, although he did so by interpreting it as a tax.
Some saw a similar trend in public comments in 2019 when the court considered whether a longstanding federal law against sex discrimination in employment also prohibited discrimination based on sexual orientation or gender identity.
About six weeks after the case was heard, The Wall Street Journal published an editorial warning that Roberts and conservative Judge Neil Gorsuch could side with liberals like Judge Elena Kagan in favor of the broad interpretation protecting LGBT rights.
“Kagan tries to lure Gorsuch and Roberts out of the Scalia way,” the editorial headlines. “If Justice Gorsuch or the Chief Justice follow Justice Kagan in defining textualism, we hope Justice Kavanaugh and the others will explain their errors,” the editorial board wrote.
Andrew Koppelman, a law professor at Northwestern University, said the fact that the Journal editorial and a similar National Review article were published in “quick succession” was a “remarkable” coincidence.
“Maybe a conservative judge indiscreetly complained to a friend that Kagan was winning. Let’s hope”, Koppelman written on the site from the American perspective.
The unusual final makeup of the case matched what those commentators had predicted, as both Roberts and Gorsuch sided with the court’s liberal justices in a 6-3 decision. In a surprise, Gorsuch – a person appointed by President Donald Trump — wrote the majority opinion of the court.
Another prominent court watcher, Professor Josh Blackman of the South Texas College of Law, said the reports regarding the LGBT rights and Obamacare cases appeared to reflect court leaks and seemed intended to trigger not-so-so-called pressure campaigns. subtle and counter-campaigns targeting judges. perceived as capricious.
“These sorts of leaks, exciting as they are, are extremely damaging to the Court. They have to stop,” Blackman wrote on the Volokh Conspiracy blog.
Some tea leaf readings of pending cases before the Supreme Court are based on public orders and acts of the court. Just last week, some commentators picked up a hint that Roberts is unlikely to write a majority opinion on the Mississippi abortion case.
To even out their work, judges are generally not assigned more than one majority opinion from any given two-week oral hearing. On Thursday, the court released Roberts’ majority opinion in a 6-3 case limiting the damages available to people suing for discrimination based on disability. This case was heard on November 30, the day before the abortion dispute in Mississippi, Dobbs v. Jackson Women’s Health Organization.
“It SEEMS to imply that the chief justice was NOT given the opinion in Dobbs,” said Leah Litman, a law professor at the University of Michigan. wrote on Twitter Thusday.
An editorial from the Wall Street Journal Wednesday expressed concern about the left’s potential decision and expressed concern that Roberts could “try to turn” one or both of the court’s new justices – Barrett and Kavanaugh – into joining. an opinion that would uphold Mississippi law without completely abandoning it. deer. The writing of the Journal directed at least one prolific conservative observer suspect some sort of flight from court.
Yet much of what is known about the court’s inner workings has been driven by leaks or perceived leaks from Supreme Court clerks — the roughly three dozen lawyers who typically spend a year reading briefs and to write opinions.
Over the past five decades, various testimonies from journalists, authors, and clerks themselves have sparked heated debate about the extent of clerks’ duties of confidentiality.
The first book giving the public an in-depth behind-the-scenes look at the court was “The Brethren”, published in 1979 and written by Bob Woodward and Scott Armstrong, which detailed the inner workings of the Burger court. They appeared to have had lengthy interviews with court clerks and had access to some of the judges’ working papers.
A former jurist for Judge Harry Blackmun, Edward Lazarus, sparked another round of controversy in 1998 when he published “Closed Chambers”, which he billed as “the first eyewitness account of the epic struggles inside the Supreme Court”.
The book sparked heated debate in legal circles, with then-Circuit Judge Alex Kozinski saying he had “nothing but contempt” for Lazarus and an expert on legal ethics, Richard Painter, suggesting that Lazarus should be prosecuted.
Lazare flatly rejected these arguments.
“The part of my book that Mr. Painter identifies as suspect is based entirely on the public record or on things I knew nothing about while I was clerk,” the former Blackmun clerk wrote in a letter to the newspaper. “Mr. Painter goes on to insinuate that I may have violated federal criminal laws regarding the theft or misuse of government documents. He offers no legal or factual support for this outrageous and false accusation.
A prominent Supreme Court litigant – Professor Erwin Chemerinsky – rallied behind Lazarus and insisted that any breach of trust in the book was minimal.
“Lazarus did nothing wrong,” wrote Chemerinsky, then at the University of Southern California and now dean of the University of California, Berkeley Law School. He also disputed that clerks had been sworn to a life of silence over their work in the High Court.
“Lazarus’ book provides an excellent vehicle for reconsidering the secrecy surrounding the Supreme Court,” Chemerinsky wrote in the Yale Law Journal. “The debate generated by the book of Lazarus, even more than the book itself, should encourage careful reflection on whether the intense secrecy surrounding every aspect of the Court’s work is a good thing.
Despite the fury, no action was ever taken against Lazarus.
The most serious breaches of Supreme Court confidentiality occurred just over a century ago and led to a cleric being accused of leaking the outcome of deals to traders on Wall Street so that he and they can make a quick profit.
The Justice Department has accused Ashton Embry, a longtime clerk to Judge Joseph McKenna, of leaking cases related to cases handed down in 1919 and linked to a time liquor distillery ban. of war and so-called patents allowing the railroads to use particular lands.
“The Ashton Embry case is the only case I know of where someone benefited financially from the disclosure of inside information to the Supreme Court,” current 9th Circuit Judge John Owens said in an interview with POLITICO. last week. “If that’s your metric, that was the worst.”
The investigation and prosecution of Embry dragged on for a decade, complicated in part by the lack of insider trading laws at the time. Prosecutors instead charged him with defrauding the United States, but ultimately Embry was never brought to justice.
The criminal case ultimately fell apart due to issues with an informant who became erratic and then disappeared, according to Owens, who chronicles the leaks and subsequent investigation in a pair of academic papers.
Although the files of the sitting judges are not accessible to the general public, some members of the Court have given privileged academics the opportunity to examine them. The terms of these arrangements are often unclear.
“Judges generally do not open their papers for wide use while they are still in court and in many cases while they are still alive, but they have – more secretly than not – provided access to their records to selected researchers for specific purposes,” said Stephen Wermiel, a law professor at American University and biographer of the late Judge William Brennan.
Wermiel said judges generally argue that confidentiality is essential to the functioning and collegiality of the High Court.
“They think it’s going to chill their deliberations with each other and their candor and their willingness to be open in the exchange of views,” Wermiel said. Some also argue that such reports divert attention from the court’s most enduring work: its opinions.
“Some say there’s only one thing that matters [and] it is the final opinion, which is the law, which somehow denies the historical value. This is their point of view,” added the professor.
Despite the general trend of secrecy, on rare occasions a judge publicly hints or offers unexpected insight into the outcome of a case.
During oral arguments on a Trump-era immigration policy in February, Judge Stephen Breyer mentioned that the claim of the red states to have standing to defend the policy was “quite similar to what we just authorized” in a case involving who could defend a Kentucky abortion law. But the high court had yet to rule in the Kentucky case. He did it eight days later, 8-1 decision, as Breyer and many less informed others had predicted.