Legal experts call Supreme Court secrecy breach with leaks to CNN 'truly astonishing'
By GREG STOHR | Bloomberg News | Published: August 1, 2020
The U.S. Supreme Court this week witnessed an extraordinary breach of its rules of confidentiality, as a series of CNN stories exposed some of the justices' internal deliberations during their just-completed term.
The series, written by veteran Supreme Court reporter Joan Biskupic and based on unidentified sources, shed light on the maneuvering among the justices in major cases over abortion, subpoenas for President Donald Trump's financial records and job discrimination against LGBT workers.
The revelations are likely to send a chill through a court that is normally among the most leak-proof institutions in Washington. Biskupic's stories included information known to only a handful of people – the nine justices, their law clerks and office assistants and perhaps the justices' spouses and closest outside confidants.
"The level of detail is truly astonishing," said Melissa Murray, a New York University law professor and co-host of the "Strict Scrutiny" podcast about the court. "The fact that the court is like a sieve or a colander is really surprising. It's just not done."
Biskupic wrote that Chief Justice John Roberts took a consistent stance against Trump's effort to end the DACA deferred-deportation program and signaled to other justices he wouldn't vote to overturn gun restrictions. She said Justice Brett Kavanaugh unsuccessfully pushed to have the court sidestep the abortion case and one of the subpoena disputes.
The stories left Supreme Court advocates and scholars feeling varying combinations of captivation and alarm. Even as court-watchers salivated over details involving opinion assignments and internal negotiations, many expressed worry about the institutional implications for a court that depends on mutual trust and goodwill even in the face of sharp legal disagreements.
"To me, it is another example of important norms breaking down in D.C.," said Rachel Barkow, a New York University law professor who clerked for Justice Antonin Scalia in the 1997-98 Supreme Court term. "The court's legitimacy is so important to its ability to function effectively, but the kinds of stories leaking make the court appear more partisan as a result."
Supreme Court spokeswoman Kathy Arberg said the court had no comment on the stories.
The stories devoted most of their attention to Roberts and Trump's two appointees, Kavanaugh and Justice Neil Gorsuch, portraying Roberts as a powerful behind-the-scenes force. Biskupic said Roberts "guided" Kavanaugh in crafting an opinion dismissing a challenge to New York City handgun transportation restriction after the city changed its law.
The stories also said the chief justice appeased the court's liberals – and averted a possible dissent – by compromising on an April 24 order that let the administration keep using a tough test to screen out green card applicants who might become dependent on government benefits.
The order left open the possibility that opponents could ask a federal trial court to ensure people can get publicly funded medical care during the coronavirus pandemic. A judge on Wednesday blocked the administration from applying the rule during the outbreak.
Much of the intrigue surrounded the identity of the leakers. Biskupic, who has written books on Roberts and three other justices, referred in her stories to "multiple sources." She declined to comment for this story.
"The detail is so granular that you really have to wonder if it's coming from a clerk or, more shockingly, if it's coming from a justice," Murray said. "It definitely is justice-adjacent."
Each justice has four law clerks every term, and the court requires them to abide by a code of conduct that includes confidentiality requirements. Former law clerks routinely refuse to say even which cases they worked on.
Those rules have helped make leaks a rarity in the years since Bob Woodward and Scott Armstrong's 1979 book "The Brethren" revealed the inner workings of the court under Chief Justice Warren Burger.
Still, Biskupic's stories are just the latest indication that the court's confidentiality norms have weakened over the last decade. A 2012 CBS News report by Jan Crawford revealed that, in the landmark case that upheld the core of the Affordable Care Act, Roberts switched sides after initially voting to strike down a key provision. Biskupic reported last year that Roberts similarly switched his vote to block Trump's administration from adding a citizenship question to the 2020 census.
And earlier during the just-completed term, a Wall Street Journal editorial hinted the paper had inside information that Gorsuch was leaning toward backing bias suits by gay and transgender workers. Gorsuch later wrote the court's opinion interpreting a federal civil rights law as barring anti-LGBT discrimination.
If the leaks continue, the court risks becoming more like other parts of the federal government, said Roman Martinez, who clerked for Roberts at the Supreme Court and then-Judge Kavanaugh on a federal appeals court in Washington.
"On the one hand, I'm sort of fascinated by all the behind-the-scenes details," said Martinez, an appellate lawyer at Latham & Watkins in Washington. "But as someone who believes in the importance of confidentiality and the integrity of the judicial process, I think these leaks are a terrible development."
The reason? "The justices need to have the ability to discuss the cases, to share ideas and to debate the issues privately and candidly without fearing that those deliberation are going to be released to the public."
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