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November 25th, 2017

Insight

Supreme Court is last leakproof institution

 Stephen Carter

By Stephen Carter Bloomberg View

Published June 29, 2017

Supreme Court is last leakproof institution

With another Supreme Court term behind us, full of decisions both predictable and surprising, perhaps we should take a moment to consider a question very much of the moment: Why doesn't the court leak? The rest of Washington has reached the point where confidentiality is a joke. So why not the Supreme Court too?

I'm not saying that no secrets ever trickle down from our sacred legal mountain. Back in 2012, CBS News ran a story that Chief Justice John Roberts had changed his vote in the decision upholding the Affordable Care Act. Court-watchers were suitably shocked. Experts speculated on who the leaker might have been.

Yet in and of itself, the leak wasn't interesting. Justices change their votes all the time; in a deliberative, reflective body, one would even hope that this is true. Although disclosing the internal processes three days after a decision is handed down was treated justifiably as a big scoop, what's proved harder for reporters is to discover the outcome of a pending case. What made the Roberts story news was not its content but the fact that the court seems all but leak-proof.

The last time a decision was leaked in advance seems to have been 1986, when Tim O'Brien of ABC News reported not only the outcome but also the actual votes in Bowsher v. Synar, the decision striking down the Gramm-Rudman-Hollings balanced budget act. That's more than three decades in which we have become accustomed to a flood of reports about the secrets of the executive branch, particularly those concerned with intelligence and national security. And during all that time, despite all the interest in its decisions, the court has sat in its marble temple, distant and sphinx-like, an all but impenetrable oracle.

Why the difference? One common response is that it would be very hard for the leaker to avoid being caught. The staff of the Supreme Court is very small, and the circle of knowledge of pending opinions is even smaller. In particular, a law clerk who talked to a reporter might find a once high-flying legal career ruined. And of course fewer people in the know means fewer potential leakers.

A second argument stems from the fact that cultivation of a source usually takes a considerable investment of a reporter's time and energy. The effort might make sense when the potential source will have access to government secrets for years to come. But the most likely source of leaks at the Supreme Court -- again, the clerks -- turns over every year. There is little point in investing months trying to convert a clerk into a source if the clerk will shortly disappear into private practice or the academy.

This leads to a third point: The Supreme Court actually tends to be undercovered by news media. As the political scientist Tyler Johnson has pointed out, what's fascinating is not how much news coverage the court receives but how little. By most estimates, only a dozen or so reporters are assigned to the institution as a full-time beat.

In comparison, The Washington Post alone has eight journalists on its White House team. For nearly all journalists, covering the court means reporting its decisions and the responses those decisions evoke. That's a pretty small investment of resources in an entity whose future is discussed in presidential campaigns in terms suggesting that the sky will fall if the bad guys win.

No doubt each of these factors plays a role in the ability of the court to keep its secrets. Yet even taken together, these explanations seem insufficient, particularly in an age when so much of life is lived so openly. Both social media and casual evening conversation are chockablock with information of the sort that earlier generations would have considered private. Why hasn't this logorrhea afflicted the court?

Let me offer a suggestion based on my own admittedly ancient experience. During my year as a Supreme Court law clerk, I recall only two instances of reporters asking me for information, once via a phone call to my office, once at a party. Of course I didn't tell them anything. But that's not the point of the story. What's interesting as I think back is my emotional response. I was angry and offended.

I suspect that even today, most of those who work at the courthouse would have the same response. With its small staff treading its broad but hushed hallways, the Supreme Court is able to instill in those who work there a sense of common purpose and esprit de corps that cannot possibly be created in a huge bureaucracy.

Not only the law clerks who pass through each year but everyone who works in the building seems to share this almost sacred commitment to the tight-knit family. An outsider's inquiry about a pending case is an insult to the common faith; to give information to the outsider would be a blasphemy.

That's why I responded with offense: For the reporter to think that I would break faith with my fellows was to strike at the core of the belief. To the insider, privacy is essential to the court's work. One might even say that the veil of secrecy is as much as the written opinion the court's principal product.

Of course many a government agency will make a similar claim. But the claim will almost always be false. As an agency grows larger, as branches become more distant from one another, it is that much harder to tend the lamp. Everyone in the Supreme Court building knows everyone in the Supreme Court building. The atmosphere is intimate.

The circle of knowledge is always tiny. The law clerks work directly for their powerful bosses, with no buffers in between, a relationship that typically engenders not only respect but also affection. No faraway contractor can download secret information. No bitter lifer sits alone and ignored in a distant cubicle. The Supreme Court doesn't leak because it learned long ago how to maintain the mystical walls separating its internal deliberations from the rest of the world: It stayed small.

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Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. His most recent book is The Violence of Peace: America’s Wars in the Age of Obama (2011). He is an author and Bloomberg View columnist.

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