This week’s revelations include that the justices originally considered granting only gay, but not transgender, employees civil rights protection in Bostock v. Clayton County, before embracing the broader view; that the newest justice, Brett M. Kavanaugh, urged the court to duck controversial rulings on abortion and presidential tax returns; and that Chief Justice John G. Roberts Jr. persuaded enough of his colleagues in a copyright case that his initial dissent became the majority opinion.
The articles by Biskupic, a former Washington Post reporter, have prompted speculation about whether her sources include justices themselves and have generated consternation among court-watchers concerned about the flouting of long-standing confidentiality norms. “We all find these leaks scintillating,” wrote Josh Blackman of the South Texas College of Law. “But they need to stop. These internal deliberations should remain private.”
Yet the latest leaks provide an opportunity to reflect on whether the court’s confidentiality norms actually serve the public good. While there are justifications for keeping some aspects of judicial decision-making secret for a limited period, current practice goes too far, serving mostly to protect the justices’ egos and reputations. And given how much power the nine unelected justices enjoy, occasional leaks may ultimately be healthy for our democracy.
The tradition of secrecy at the court runs deep. Law clerks each year sign confidentiality pledges and receive a stern lecture about secrecy from the chief justice. Some justices go further; Justice Antonin Scalia would solemnly tell his clerks that he would ruin their careers if they revealed the inner workings of his chambers.
Leaks at the court are not unprecedented. “The Brethren,” by The Post’s Bob Woodward and former Post reporter Scott Armstrong, provided, in 1979, a detailed account of deliberations among the justices during the early years of Chief Justice Warren Burger’s tenure — the era of Roe v. Wade, among other key cases. In 1998, Edward Lazarus scandalized the Supreme Court bar by writing a book about his clerkship for Justice Harry Blackmun, in which he recounted tales of ideological wrangling among clerks and justices. Disillusioned law clerks spilled the beans to Vanity Fair after Bush v. Gore, claiming that partisan allegiance to Republicans had led conservative justices to rule in favor of then-candidate George W. Bush. More recently, CBS’s Jan Crawford revealed that Roberts changed his mind during the opinion-drafting process on the constitutional challenge to President Barack Obama’s signature health-care law, ultimately voting to uphold it.
Yet these occasional controversial exceptions, over decades, prove the rule: The Supreme Court is less leaky than almost any other institution in our government.
Part of the reason has to do with the court’s small size and the nature of those who work there. Only a few people are privy to the court’s secrets. Beyond the justices themselves, most of the rest are law clerks — four for each justice — who serve one-year terms and who have little to gain, and a lot to lose, from revealing confidences. (Supreme Court clerkships put their recipients on the fast track to successful legal careers, but becoming known as a leaker could derail those plans.)
Law clerks largely heed their bosses’ warnings and indeed seem to internalize the norms about judicial confidentiality, seeing them as justified and appropriate. One often hears them say, for example, that — unlike in other branches of government — the justices spell out the reasons for their votes in lengthy opinions and dissents, which give the public all the information it needs.
Yet it’s striking that the court’s secrecy rules go further than those in almost any other part of U.S. government. In the executive branch, detailed rules govern when information should be classified and thus subject to nondisclosure obligations. But demands that government employees maintain secrecy going well beyond these obligations are viewed skeptically. When President Trump demanded that White House employees sign broad nondisclosure agreements that would prevent them from ever revealing any nonpublic information learned during their service, critics called them unenforceable and improper. Yet hardly anyone bats an eye at the similarly broad secrecy demands made by justices.
Why? Some observers simply assert that leaks are damaging as if it were self-evidently true. But one common justification turns on legitimacy: revealing too much about the decision-making process might make the public less willing to respect, and follow, the court’s judgments. This argument, though, proves too much. What kinds of revelations are feared — that the justices are trading votes across different cases (a vote for abortion rights in exchange for a vote against campaign-finance reform, say), or deciding cases based on rationales absent from written opinions? But if votes were being traded, wouldn’t that be the problem — not that the public learned about it?
Learning how the court goes about its business can help the public decide whether we should treat its decisions as legitimate — and whether we should be comfortable letting the unelected justices exercise as much power as they do.
Another justification focuses on the decision-making process itself. Justices might feel less comfortable exchanging views candidly if all they said were made public. Again, this contention raises more questions than it answers. What is it, exactly, that justices might want to say that they wouldn’t if they knew it would eventually be revealed? And why, if they are saying potentially controversial things, would it be harmful if they chose their words more carefully?
Nonetheless, there is likely some truth to these various arguments. If the media provided live coverage of the court’s deliberations — to take the idea of transparency to an extreme — perhaps the justices might become more explicitly partisan or more rigid in their thinking. If votes were publicized immediately, justices might be unwilling to back off their initial positions (as sometimes happens now). And when justices did change their minds, disappointed litigants (and the public) might be less willing to accept decisions if they knew the cases almost went the other way.
But no one is proposing “leaking” on that scale. The question instead is whether near-total secrecy goes too far. Confidentiality obligations currently are lifelong, and — what’s more — justices get to decide when, if ever, to make their papers public. Those of retired justice David H. Souter, for example, will be made available 50 years after his death.
Another problem is that confidentiality norms cover matters that go well beyond legal arguments. One prominent federal appellate judge likened a Supreme Court clerkship to “membership in a family,” with similar duties of loyalty. That analogy has become harder to take seriously after that very judge, Alex Kozinski, ultimately resigned after more than a dozen women claimed he had sexually harassed them at work. The first clerk to speak out about Kozinski has movingly described her struggle to reconcile her need to speak with her strict confidentiality obligations.
An ideal solution to these problems might include more narrowly tailored rules, better defining which types of information are properly subject to nondisclosure obligations and providing appropriate time limits for when those obligations expire. The court could adopt such rules itself, or Congress might mandate them. And justices’ papers should be made public within a few years of retirement at the latest.
Accepting the inevitability that real-time investigative reporting could sometimes lead to even faster disclosure might make sense, too: Biskupic’s scoops, interesting as they are, probably will cause little harm even though they come just weeks after the term ended. The White House manages to survive the occasional peek behind the curtain; why not the court?
There is no reason to be distraught about Supreme Court leaks. If anything, we should welcome the chance for the public to better understand how those who govern us — including judges — make their decisions.
CORRECTION, 08/2/2020: This article originally said that the papers of retired justice David H. Souter will become public 50 years after his retirement. They are scheduled to become public 50 years after his death.