The Supreme Court Has Always Leaked

The law, lawyers, and the court.
July 6 2012 2:25 PM

The Supreme Court Leaks

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

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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.”

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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.

Jonathan Peters is a media lawyer and the Frank Martin Fellow at the Missouri School of Journalism. He blogs for the Harvard Law & Policy Review, and he has written on legal issues for a variety of news outlets, most recently the Columbia Journalism Review, The Nation, Wired, and PBS. Follow him @jonathanwpeters.