Wednesday, July 04, 2012


Mark Tushnet

I didn't intend to contribute to "leakapalooza," but I have. A couple of things about my own contribution: (a) I reported a "rumor" I had heard, sourced to a law clerk (I know not whom). I'd heard the rumor before the decision was announced but did not mention it, except to a handful of colleagues, some of whom had already heard it, until after the announcement. (b) It's not clear that, if rumors really were swirling around, anyone took them all that seriously. On the day before the announcement, Intrade had "unconstitutional" trading at 77; maybe the rumors depressed the price from the 80s, but I'm skeptical. I'd been saying "60-40 to uphold" pretty consistently (even after I'd heard the rumor), though I admit that I wasn't thinking about the tax argument.

More interesting to me are the apparently changing norms about law clerk and Justice behavior. When I clerked in 1972-73, it was something of an embarrassment when a law clerk, mistakenly thinking that Time magazine had gone to press, chatted with a Time reporter on a flight to Washington and mentioned that the abortion cases were going to be decided the next Monday, which Time duly reported (as I recall). Woodward and Armstrong got clerks -- and, reportedly, some Justices (Stewart and Brennan were the names most frequently mentioned) -- to talk relatively soon after the clerks left the chambers (with lag times ranging from one to three or four years, I think). The result was an explosion within the Court, and the production of a law clerk's code of conduct sternly emphasizing the duty of confidentiality. Several years after Bush v. Gore Vanity Fair published an "inside" account, sourced to numerous law clerks.

Of course there's a statute of limitations on confidentiality. Tom Krattenmaker recently published a terrific inside account of Cohen v. California, with the observation that the statute of limitations for him as Justice Harlan's law clerk had clearly expired. I think the same is true for me with respect to Justice Marshall, for whom I was a law clerk nearly forty years ago. And, maybe the rule should be that the statute has clearly expired when internal Court documents, such as Justice Blackmun's papers, become available with respect to any Term.

What's unusual about "leakapalooza" is that it's happening in pretty close to real-time. Three sources (Crawford's and Campos's) talked within days of NFIB. I credit Crawford's and Campos's claims that their sources were in a position to know some of what they spoke about (though not, I think, about the Chief Justice's reasons for "changing/making up his mind"). There are candidates other than law clerks (and Justices), of course -- workers in the printer's office, for example, or in the office of the Clerk of the Court. If the sources are law clerks, there really is something new happening.

Older Posts
Newer Posts