Commentary: Why not have a Supreme Court that leaks a lot more?

The Supreme Court building in Washington.

By Matt PearceStaff Writer

May 4, 2022 6:38 AM PT

It was a monster scoop of extraordinary newsworthiness if there ever was one, on a matter of intense public interest for millions of Americans.

But when Politico published a leaked draft of a Supreme Court opinion showing that a majority of justices were likely to overturn longstanding protections for abortion access in the U.S., longstanding court-watchers reached for metaphors of natural disaster and biblical betrayal — to describe the leak. “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff,” the popular SCOTUSblog tweeted. “This leak is the gravest, most unforgivable sin.” Chief Justice John G. Roberts Jr. agreed in a Tuesday statement that the leak was a “betrayal of the confidences” of the court, adding that “Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court.”

Roberts’ phrasing suggests, of course, that perhaps one employee was less than exemplary. Other popular (and completely speculative) theories about the leaker’s identity have tended toward the subordinate: perhaps some outraged liberal or Machiavellian conservative in the justices’ clerkforce wanted to sway a wobbling vote to their boss’ side. Others, noting that one of the bylines belonged to a Politico reporter who covers national security, turned their eye to hypothetical perpetrators even further afield, wondering if the draft was obtained in a hack.

But what if the leaker were management-level — say, a justice on the bench? To take it even further, what would it even look like if the lifetime appointees on the notoriously secretive and opaque Supreme Court were to become as leaky, gossipy, confessional, showboaty or — in a word — as transparent as some of their counterparts in the other branches of the U.S. government?

Elsewhere, key players, such as President Trump or Democratic Rep. Alexandria Ocasio-Cortez, have expertly wielded social media to bring their own opinions on the government’s inner workings directly to the public. By comparison, Supreme Court justices appear for oral arguments, ask questions (well, sometimes) and emit opinions later. For better or worse, Justice Neil M. Gorsuch isn’t giving Instagram Live updates from his kitchen explaining how he thought the Justice Department’s argument wasn’t very good or why he might apply his interpretation of textualist theory to the latest ruling.

As other institutions conform to an era of increasingly invasive surveillance and increasingly incentivized self-publication, the Supreme Court is practically stuck in time. Monday’s leak offers a small taste of a world where that is no longer the case.

Legal experts consulted by The Times know of no law or code of ethics preventing a Supreme Court justice from leaking draft opinions to reporters or even just tweeting out confidential information. For justices, “it’s definitely not illegal, and it’s not formally unethical,” said Steven Lubet, a professor at the Northwestern Pritzker School of Law. It’s a different story for their clerks, “who have promised their bosses confidentiality, so a betrayal could be seen as a violation of the D.C. Rules of Professional Conduct.”

While the leak is being cast as a betrayal, the high court has declined to adopt formal policies that would forbid justices themselves from practicing this kind of radical transparency if they felt like it. Although lower federal judges are governed by a code of ethics, the Supreme Court “is not governed by a code of ethics and has resisted for many years any effort either to impose a code of ethics or to get it to write its own code of ethics,” said Stephen Gillers, a professor of law at New York University. “The justices are the only judicial officers in the country who are not subject to an ethical code.”

Judicial leaks to the media can have messy aftermaths, with the twin effects of boosting public awareness while bringing the institution’s lofty practitioners somewhat closer to earth. In an election-day article in 1978, The Times, citing two justices on the California Supreme Court, broke the news that the state court had decided, 4-3, to overturn a law that required prison terms for people who use a gun during a violent crime. But the decision had not been announced yet. A critic of liberal Chief Justice Rose Elizabeth Bird, who was facing a retention election, had accused the court of holding back publication to help Bird’s election chances. (In California, state justices are appointed by the governor and then face retention elections.)

Formal charges were never leveled at any of the California justices. Bird later complained in a TV interview that the leaks — and the chaotic and politically controversial investigation they inspired — amounted to “a full year of constant harassment” that diminished the court’s “mystery” and “awe,” meaning that “no one is going to accept anyone as a high priest anymore.” But Bird also said she thought the inquiry was healthy because the public “had the opportunity to come to know some of the justices” and that it became clear that “we have very archaic ways of doing things.”

The U.S. Supreme Court long ago removed itself from the kind of transparency normally practiced by other, elected branches of government, leading contemporary critics to call for reforms. “Why don’t they tell us the votes when they deny certiorari and who voted which way?” said Erwin Chemerinsky, dean of the UC Berkeley School of Law. “Why don’t they tell us which opinions that are coming down the day before? There’s so much needless secrecy around the court, and I hope we’ll focus on that.”

Under criticism, the court has inched toward more transparency in recent years. The pandemic led to audio of oral arguments being broadcast publicly for the first time, a move that had previously been resisted over fears that it would cause lawyers to showboat for the media. But cameras are still not allowed; justices’ financial disclosures are not as thorough as for officials in other branches; and public appearances are often not publicized in advance, according to a few issues identified by the nonprofit watchdog group Fix The Court.

This week’s leak, though criticized by the court, has been invaluable to the public officials and members of the public who have already begun mobilizing for a post-Roe vs. Wade future. Gov. Gavin Newsom of California and his Democratic counterparts leading the California Legislature have announced plans to ask voters to enshrine abortion rights into the state constitution. Democratic Sen. Edward J. Markey of Massachusetts has called to “expand the court” by adding more (presumably liberal) justices. Some abortion-rights supporters, including the musician Phoebe Bridgers, have begun disclosing their own abortions or are organizing donations to abortion funds.

But it’s exactly this kind of abortion-rights advocacy, before the Supreme Court has issued its final opinion, that has made many conservatives as well as court institutionalists incensed about the leak and questioning whom it benefits. In theory, the Supreme Court’s word is supposed to be final, not subject to the same kinds of pressures that influence other powerful public officials.

“Those who care about norms, decorum, civility, institutions, and rule of law — or claim to — must hold the leaker and any co-conspirators fully accountable for this egregious breach,” Mollie Hemingway wrote for the conservative Federalist website. “At the very least, they should be disbarred. Criminal charges might also be in order.” She added: “Insurrection attempts against the Supreme Court must be quashed.”

The paradox at the heart of the Supreme Court is that it needs the other branches to enforce the rulings it issues, and anything that causes the court to lose its lofty legitimacy is a potential threat to its power. Many argue that the court’s mystique has already been under question for years, long before this leak, in part due to the justices’ tendencies to issue rulings — like this one — that align closely with the policy preferences of the parties that appointed them.

“Everyone knows that the identity of the justices and their ideology matters enormously,” Chemerinsky said. “The reason Republicans blocked [Obama appointee] Merrick Garland and rushed [Trump appointee] Amy Coney Barrett is because they wanted justices to block Roe vs. Wade. If Hillary Clinton had won in 2016, we wouldn’t be having this conversation right now. This decision, assuming it comes down, is a product of having five very conservative justices on the court, no more, no less.”

U.S. Supreme Court experts said that even though it isn’t illegal for a federal justice to leak, there are other good reasons not to, including to avoid releasing market-moving information early and to promote better-considered opinions. “We want the decisionmakers to be candid with each other, with the idea that candor leads to better decisions,” said Louis Virelli, a professor at Stetson University College of Law. “If it chills the justices from being candid with each other, that’s a problem.”

It’s also a little tough to argue that the Supreme Court should be transparent to promote democratic accountability when the institution was designed to be as democratically unaccountable as possible. Unlike presidents and lawmakers, after receiving Senate approval justices don’t have any voters to answer to. As Gillers put it, “The justices don’t represent anybody.”

Still, the very divided justices have a good reason to keep things civil and private for reasons separate from any kind of democratic theory or constitutional legitimacy or public oversight. “These folks work together for life in a group of nine,” Virelli said. “It stands to reason that that sort of work environment is going to put a premium on collegiality.”

And as many reporters can tell you, the workplaces that leak don’t tend to be the happy ones.