The Supreme Court Leaks

The high court has a long and storied history of dishing on itself.

Warren Burger.
Former Chief Justice Warren Burger

Photograph by Coburnpharr04 via Wikimedia Commons.

The Supreme Court isn’t supposed to be like other institutions. It’s supposed to be something more, a place above partisan squabbling, insulated from the unseemly back and forth of politics. The court’s nine justices are the final arbiters of our biggest legal questions, and much of their work is supposed to be done behind closed doors. They hold oral arguments and release decisions—and remain a mystery to most people.

That’s what made CBS’s Jan Crawford’s story on July 1 so shocking. Crawford reported that Chief Justice John Roberts voted to strike down the heart of the Affordable Care Act before changing his mind and siding with the court’s liberal bloc. Her story cited “two sources with specific knowledge of the deliberations” among the justices, and it noted that Roberts’ “switch” was “known among law clerks, chambers’ aides and secretaries.”

The collective reaction of pundits and legal commentators seemed to be, gasp, “How could this happen? How could the Supreme Court leak?” Harvard Law School’s Jack Goldsmith had just argued that the court is typically “better at stopping leaks” than other government institutions. Time’s Adam Sorensen described Crawford’s story as a “once-in-a-lifetime scoop.” Robert Shrum, like many others, described the leaks as “unprecedented.” Meanwhile, Orin Kerr, a law professor at George Washington University, wrote on the legal blog The Volokh Conspiracy that “the leak is pretty incredible” and that he “can’t remember anything quite like” it.

No doubt the leak is incredible, and no doubt the justices are good at keeping secrets. But there is nothing unprecedented about the Supreme Court dishing on what happens behind the red curtain. The court has a long and colorful history of leaks that dates back to the mid-19th century. Just like last week, leaks have sprung in the past commenting on a decision soon after the justices released it. Inside accounts of the personal relationships among the justices have long been served up to journalists. Indeed, some court opinions have leaked even before the justices had a chance to announce them.

Consider the 1852 case Pennsylvania v. Wheeling and Belmont Bridge Company. Ten days before the court handed down its decision, the New York Tribune reported the outcome. Two years later, the bridge case returned to the court, and again the Tribune scooped the justices before they made their decision public. Later that year, the Tribune published a running account of the court’s deliberations in Dred Scott. Historians have speculated that the leaks came from Justice John McLean, who authored the first bridge opinion before dissenting in the second one, as well as Dred Scott.   

More recently, in 1968, New York Times reporter Fred Graham wrote a story about Justice Abe Fortas’ extrajudicial activities to support the Vietnam War, after a law clerk leaked the details to Graham. “The young man was outraged that Fortas was sitting on draft cases and writing opinions sending kids to jail,” Graham later told researchers. “This clerk knew from things going on around the courthouse that Abe Fortas was on the phone to Lyndon Johnson, and they were discussing bombing. It was outrageous.”

The 1970s brought a wave of leaks at the Supreme Court. First, Justice William O. Douglas in June 1972 wrote a memo to his colleagues about Roe v. Wade. Somehow, it reached the Washington Post, which published a story about the memo and the court’s inner deliberations. Douglas, already on vacation at his summer home, was assumed to be the leaker. He wrote to Chief Justice Warren Burger that he was “upset and appalled” and had “never breathed a word” about the case to “anyone outside the Court.”

The leaks didn’t stop. In fact, Time published a story about the Roe v. Wade decision before the court announced it, reporting the outcome and the 7-2 vote. Infuriated, Burger demanded a meeting with Time’s editors, chastising them for scooping the court. The chief justice believed a law clerk was to blame, so he ordered all of the clerks not to speak to reporters. This resulted in what became known as the “20-second rule:” Any clerk caught talking to a reporter would be fired within 20 seconds.  

In 1977, NPR penetrated the justices’ conference by reporting that they had voted 5-3 not to review the convictions of three defendants in the Watergate cover-up cases. The story, obtained by Nina Totenberg and confirmed by the New York Times, also reported that Burger had delayed the announcement of that decision so he could try to recruit the fourth vote necessary to review the convictions. Justices Warren Burger, Harry Blackmun, and Lewis Powell, all appointed by President Nixon, voted to review the convictions, while the fourth Nixon appointee, Justice William Rehnquist, disqualified himself. It’s unclear who leaked in that case, but as one scholar put it, “The episode served notice on a startled Court that anything smacking of political maneuver inside the conference might find its way into the press.”

A couple years later, Burger was still fighting leaks. In 1979, he reassigned a typesetter at the court’s printing office after concluding that the typesetter had leaked nonpublic information to ABC correspondent Tim O’Brien. Not long before, O’Brien had reported in advance the outcome of a case involving the right of courts to question reporters about their thoughts during the editorial process. O’Brien then broke another story in 1986, when he scooped the justices on their decision regarding the Gramm-Rudman-Hollings Budget Balancing Act. O’Brien reported that on a particular day the court would strike down a key part of the Act. He was right about the outcome but not the day. Years later, UPI reporter Henry Reske said Burger intentionally delayed the decision: “You didn’t have to be a rocket scientist to realize Burger was ticked off and just wanted to stick it to Tim O’Brien.”

Other leaks have been more retrospective. In 2004, for example, a group of law clerks from the 2000 term leaked to Vanity Fair the details of the secret deliberations in Bush v. Gore. And then, of course, there are the books: The Brethren, by Bob Woodward and Scott Armstrong; Closed Chambers, by Edward Lazarus; Sorcerers’ Apprentices, by Artemus Ward and David Weiden; Supreme Conflict, by Jan Crawford; and The Nine, by Jeffrey Toobin. Relying on sources inside the Supreme Court, each book in its own way pulls back the curtain and invites you to explore life, politics, and conflict at the court.

The Brethren, in particular, rocked the boat. It was the first to treat the Supreme Court as a political institution and the justices as political players. Five of them sat for background or off-the-record interviews with Woodward or Armstrong. Burger tried to persuade his colleagues not to cooperate with the journalists. Apparently, he proposed in conference that the justices not speak with them. The proposal was not well received, and as one scholar concluded, “The fact that so many justices, as well as many clerks, participated in the research … indicated either a high level of dissatisfaction … with the current operation of the Court or their fear that they would be portrayed negatively if they did not cooperate.”

All of which brings us back to the leak in Roberts’ court. It’s like the Dred Scott and Roe leaks to the extent it concerns a case of massive public interest. It’s like the Watergate leak to the extent it might indicate that “anything smacking of political maneuver inside the conference” could find its way to the news media. But it’s different in key respects, too. The other contemporaneous leaks, with the exception of the Watergate one, didn’t address the court’s inner workings. We don’t usually get an account of how the court reached its decision so soon after the decision is reached. Those types of leaks tend to come years later to the enterprising reporter who is working on a book, not an evening deadline.

Whether the Roberts leak is accurate, of course, we have no idea. But it’s important to recognize that it’s not in a category of its own. Supreme Court leaks are rare, but they are hardly unprecedented. The court, just like our other public institutions, is made up of political animals. We shouldn’t be shocked when they act that way.