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Supreme Court Leaks ‘Super Rare,’ Serve ‘Ulterior Purposes’

Sept. 13, 2019, 8:06 PM

The U.S. Supreme Court doesn’t leak. It just doesn’t.

Except when it does.

Compared to other branches of government, the work of the highest court in the land is notable for the degree to which the justices are able keep their deliberations private.

So when information seeps out, like it did this week, court watchers pay attention, to say the least. Former clerks describe a strict culture of confidentiality and observers express alarm about the sanctity of a cloistered court.

A Sept. 12 CNN report gave a rare glimpse behind the curtain, alleging that Chief Justice John Roberts changed his mind from his initial vote in June’s hotly contested opinion involving the 2020 census.

Roberts ultimately cast the deciding vote to reject the Trump administration’s controversial attempt to add a citizenship question to the census, but he was initially going to go the other way, according to Joan Biskupic’s report citing “sources familiar with the private Supreme Court deliberations.”

It’s “super rare” for something like this to happen, said Leah Litman, a University of Michigan law professor who clerked for Justice Anthony M. Kennedy.

Such deliberations are steeped in secrecy, and are subject to constant speculation from court watchers. That makes this new report illuminating not only for its content, but for the fact that insiders opened up to the outside world.

The report also said justices flipped their votes in another case last term, involving sex offender registration and the separation of governmental powers.

A 2012 CBS report, another notable entry in the rarefied genre of 21st century Supreme Court leaks, also featured Roberts’ apparent change of heart in a blockbuster case involving Obamacare.

Supreme Court clerks are generally known to observe something of a code of silence when it comes to their bosses’ work.

“One of the things the Court impresses on clerks the most is the clerks’ obligations of confidentiality,” Litman said. “Leaking the Court’s internal deliberations is just not something clerks do, and they know it.”

“Clerks are told to maintain secrecy about the workings of the Court, and they may risk harm to their careers by leaking information about specific cases,” said Matthew Tokson, a law professor at the University of Utah who clerked for Justices Ruth Bader Ginsburg and David H. Souter. Some law firms pay U.S. Supreme Court clerks six-figure signing bonuses at the conclusion of their clerkship.

The CNN report doesn’t specify whether the information came from clerks, other staff, or elsewhere.

Tokson said that most of what goes on during deliberations typically doesn’t come to light “until decades later when the Justices’ private papers are published.”

Justices changing their votes before opinions are issued happens “fairly regularly,” Tokson pointed out. “For example, a judge might try to write an opinion and in doing so decide that the other side has the better argument. A particular vote change might be notable or important, but changing one’s vote is not itself uncommon.”

At least one scholar is sounding the alarm about what leaks mean for the court’s future.

“These statements are designed to publicly cast doubt on the Court, and the Chief Justice, to serve some ulterior purposes,” said South Texas College of Law Houston professor Josh Blackman. “Whoever is behind these leaks should carefully reconsider their actions. Deliberations should remain private.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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