Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, September 24, 2019

Leaks and the Supreme Court

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Earlier this month, CNN reported that Judge Roberts had supported the administration's ability to add a citizenship question to the census before he had decided to oppose it. According to "sources familiar with the private Supreme Court deliberations," Roberts had, to use a political term, flip-flopped. This seemed to be supported by the opinion, which began by noting the broad power of the relevant agency to include questions about citizenship, but eventually concluded that it still had to provide an honest rationale for any decision to do so, and that the record indicated that the explanation provided was pretextual.

This was not the first time Roberts had been allegedly outed for changing his mind during the deliberative process. In 2012, when Roberts joined the majority to support the Affordable Care Act, the press again used insider information to show his change of mind. In that case, CBS cited to "two sources with specific knowledge of the deliberations," who detailed Roberts' journey from one side to another.

There is a very short list of who these sources might be. It is also fairly apparent that the damage to the Court is mounting, as these leaks fit into the narrative that politics plays more of a role than precedent.

Of course, judges do, and should, change their minds during the deliberative process. Simple issues are rarely appealed, and even more rarely reach this level. The complex issues involved require time to determine, and we should hope that judges maintain an open mind during this time, permitting change. And the modern "rule" of judicial silence in response to these leaks means that judges are unable to defend those deliberations.

These leaks are nothing new. As Jonathan Peters wrote for Slate after the 2012 leaks, there is a long history of leaks from the high court. This history seems to indicate that the damage done by the leaks, which are usually politically motivated, is mounting.

In the 1800's, the New York Tribune seemingly sat in chambers with the Court. Days before the Court handed down its decision in Pennsylvania v. Wheeling and Belmont Bridge Company, the Tribune reported the outcome. It then provided detailed accounts of the deliberations in the Dred Scott case. Historians have speculated that the leak came from Justice McLean, who authored a dissent in those cases.

In the 1960's, a law clerk leaked information to the New York Times about Justice Fortas and his close connection to the administration. According to the U.S. Senate website, as a sitting justice, Fortas regularly attended White House staff meetings, briefed the president on secret Court deliberations, and, on behalf of the president, pressured senators who opposed the war in Vietnam. When these details were revealed during his confirmation hearings to be appointed Chief Justice, along with details of a private stipend he received to teach, rather than being confirmed as Chief, he eventually stepped down from the bench.

The leaks escalated after this point. In the 1970's Justice Douglas wrote a memo to his colleagues in the Roe v. Wade case, and it reached the hands of the Washington Post. Time then published a story about Roe v. Wade before the decision was announced by the Court, detailing the votes. Believing that a law clerk was again to blame, Justice Burger created the "20-second rule," meaning any clerk caught talking to a reporter had no more than 20 seconds left as a clerk before being fired.

Of course, the 20-second rule only applies to current clerks. Thus, in 2004, a group of former clerks leaked the details of the deliberations in Bush v. Gore to Vanity Fair.

Some of the leaks have been remarkably detailed. In 1986, ABC reported not only the outcome but the actual vote break-down before the decision was handed down regarding the Gramm-Rudman-Hollings balanced budget act. It also disclosed the date the decision would be handed down, a forecast that was off a few days reportedly only because Justice Burger delayed the release so that the reporter would be wrong about something.

This brief history gives some clue as to who the most likely sources might be. But whether it is a judge or a clerk (and it seems unlikely that it could be anyone else), they are damaging the Court at a time when it is already under serious attack.

As Justice Frankfurter noted, the secrecy of the Court's work is "essential to the effective functioning of the Court." Mr. Justice Roberts, 104 U. Pa. L. Rev. 311, 313 (1955). Justice Burger considered the enforcement of this secrecy to be an essential "inherent power" of the Court. New York Times Co. v. United States, 403 U.S. 713, 723 n.3 (1971) (Burger, dissenting). Rehnquist stated in a lecture on the topic that without secrecy, the open, at times short-tempered discussions at conference would end, to the detriment of the Court and the public it serves.  

Judges need to feel free to change their minds and be open with each other as they deliberate and discuss difficult issues. If leaks and reports continue to cast any change of heart during the deliberative process as being political motivated, it seems likely that the result might be a chilling of both communication and flexibility in thought. Either one would be dangerous.

(image source: Library of Congress, World War II poster from the U.S. Navy)

 

 

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