Wednesday, July 29, 2020

Supreme Court Justices as Leakers

Gerard N. Magliocca

Sir Humphrey Appleby once explained that "the ship of state is the only ship that leaks from the top." The same is true in the Supreme Court. Joan Biskupic's "inside" stories on CNN about the recently completed Term probably came from one or more of the Justices. This is not unprecedented. There were Justices who talked to Bob Woodward for The Brethren. There were Justices who leaked in the 1940s during the Jewell Ridge controversy. And so on.

I don't have a strong view on this practice. I suppose that I'm less keen about leaks that are intended to make a particular Justice look good or bad. And I think that I'm more keen about leaks intended to expose a problem (say that a Justice was confused in conference about which side was which, which has happened in the past) or an abuse of power. Leaks about cases that are not yet decided, which also occur from time to time, are more problematic because there could be financial consequences (think insider trading) to particular Supreme Court decisions. On the other hand, the incentive to leak while the case is pending is much greater, as the leaker (like many leakers in the other branches) probably hope to influence the outcome through partial disclosure.


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Biskupic's after action stories are 90% speculation of legal observers with some tidbits which appear to be gleaned from a clerk. There does not appear to be an attempt by one or more justices to influence another during proceedings.

Roberts is plainly an establishment political animal who attempts to conform case results to the polls. The DACA case was a perfect example. DACA kids poll well. Illegal aliens, coyotes and Hispanic gang bangers do not. By finding a technicality upon which to reverse the DACA rule without welding the EPC club Sotomayor preferred, Roberts made the decision match the polls.

Rather than suffering from Trump Derangement Syndrome as suggested by Biskupic and others in the Democrat media, I suspect Roberts may see himself as protecting Trump against his instincts which do not poll well.

The speculation Roberts (playing the new Kennedy and O'Connor) was the reason why the actual conservatives have declined to accept new 2A cases has been floating around conservative circles for years. I suspect the conservatives took a chance on the NYC case because the facts were so egregious that even Roberts would cry foul. They were wrong. Roberts found a way to dispose of the case without ruling on politically problematic issues like whether the right to keep and bear arms is a fundamental right requiring strict scrutiny of firearm prohibitions.

There is not a chance in hell Roberts will vote to overturn the outlaw Roe decision.

Those of us who prefer applying the law rather than the polls need to reelect Trump and hope he appoints a genuine conservative to replace Ginsberg and make five.

Important issue. We can't really know, from the related article of Biskup, that judges leak or have leaked something here (or generally speaking).

By the way, one may reach the article here:

Leaking, is bad. Fundamental principles are violated so. First, integrity. When one judge leaks, the public trust is eroded. Such judge, must be perceived as having back mind. Illicit one. He tries, to reach certain goal, not through direct confrontation, but, through manipulation of the media or whatever. This is not professional and ethical behavior, expected from one judge.

Second, impartiality:

If one judge, leaks something concerning a case pending, then, the same issue is raised:

Why to leak, instead of confronting the problem in honest and sincere manner ? Also, and surly in the Supreme court, team cooperation is needed and expected. How shall one justice trust the other then? They leak instead of talking and solving disagreements. They leak and manipulate, instead of putting things straightforward on the table.

All this, erodes, the public trust, in the system. System that must serve as ultimate example for integrity.


I think the times basically will lead to more leaks of this nature, justices in general more likely to express themselves publicly and interact with a variety of at times partisan actors. Overall, at least after the term is over like this, I think the whole thing is acceptable. I wasn't really surprised at what was said though some details might be unclear. The series does seem a bit more detailed, right after the term is over, than usual. OTOH, we have had books since "The Brethren" that provided comparable inside details.

Joan Biskupic is basically a quasi-official biographer with a long respectable pedigree. So, I think Roberts -- if likely not loving the whole thing -- accepts what she is doing. I think Gorsuch and Kavanaugh, one or the other at least, actively are of the sort who would work with her. Or, not mind if their clerks did so. The pieces on them, especially Kavanaugh, put them in a good light as reasonable sorts.

They might not be seen as favorably by High Federalists, but touching upon something said, they very well might want to defend themselves there too. Anyway, they are mostly loyal, the Kavanaugh piece mostly saying his concern is "tone."

Those of us who prefer applying the law rather than the polls need to reelect Trump and hope he appoints a genuine conservative to replace Ginsberg and make five.
# posted by Blogger Bart DePalma : 2:57 PM

The way things are going you're going to have to move to Russia and vote for Putin directly.

"Those of us who prefer applying the law"

el roam:

I would agree with you if there was evidence justices were leaking to apply pressure on colleagues to change positions during proceedings. The only recent major change of position was Roberts defecting to save Obamacare and no one outside had a clue until reports after the fact.

Bart Depalma, as written by me, no proof at first place, of any leaking. And it is bad, not only because of pressure on colleagues, but:

It may be perceived, as manipulation. A judge, and manipulation of the media, well, that is like Christ v. Anti Christ.

A judge, should even avoid being interviewed. Nothing at all.


1. It's very hard to confirm the things Biskupic claims. I have heard from someone who would have reason to know that her earlier stories on the NFIB v. Sibelius deliberations got things completely wrong.

2. This, in the end, is all very unimportant and kind of damaging. The legal system runs on confidences. I am sure, for instance, that the public would be very interested in the advice that Johnny Depp or Amber Heard's lawyers are giving to their respective clients. But if people thought that those communications would become public, it would seriously interfere with the ability of people to get legal representation.

Similarly, courts work by forming consensus. (A related point- forming consensus is actually 500 times more important than all the BS judicial philosophies that get debated, whether it is conservatives' "originalism" or liberals' "active liberty". A majority of the judges and justices trumps judicial philosophies every time.) You know how you make it impossible to form consensus? Do it in public. This is why cases settle in private mediations and not through public negotiations.

People posture in public, and they react to publicity by trying to make themselves look good to whoever they are trying to please. Which is just anathema to what panels of judges are supposed to be doing.

There's a whole bunch of people out there who aren't lawyers and who don't actually give a crap about how the judicial system actually works, and they cheer this stuff. It's terrible. You simply do not need to know one-sided accounts of private judicial deliberations.

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