Supreme Court Leaks Are Unfortunate, But This Wasn't A Big Deal

A response to my co-blogger Josh Blackman.

|The Volokh Conspiracy |

My friend and co-blogger Josh Blackman paints a picture of a Supreme Court in deep crisis, perhaps all the fault of Chief Justice Roberts.  As Josh sees it, the Supreme Court Justices may be trapped in a toxic relationship, with no choice to be whistleblowers to let the public know of just how terrible the Supreme Court under Chief Justice Roberts has become.  Josh argues that Chief Justice Roberts must himself take the steps to salvage the situation, including personally interviewing every single employee at the Supreme Court (probably around 200 people) to find every leaker.  Josh gives the Chief Justice one year to turn the ship around or resign: "If by next July, Roberts cannot step up to this challenge—either through his own ineptitude or his own malfeasance—then he should step down from the Court."

I see this very differently, to put it mildly. I thought I would say why.

(1) We seem to get various kinds of leaks from the Supreme Court every few years.  It's really unfortunate. I think the Court would be better served if these leaks didn't happen.  But they happen, and they have happened, from time to time.  Unfortunate, but not the crisis that Josh suggests.

(2) The leaks this time were really boring.  I mean, I get that everyone is fascinated by any leak from the Supreme Court.  But the leaks from Joan Biskupic's series struck me as the least revealing, least interesting leaks I can recall.  They were mostly about what the Justices circulated amongst each other (stuff intended for every Justice and every law clerk) about their votes in various cases that ultimately became public.  Off the top of my head, I don't think we learned anything particularly revealing or unexpected.  Josh paints a contrasting picture of a Supreme Court "tear[ing] itself apart,"  a "toxic" situation, a "crisis of confidence,""a whirlwind" that is "demolish[ing] the marble palace from the inside."  But I don't see any of that.  It seemed like, well, kind of a normal Term.

(3) If I understand Josh correctly, his view is that if the Chief Justice can't stop other Justices from leaking, Roberts himself must step down.  That is so, Josh argues, because it is "his Court," and as its leader, he is ultimately responsible. But it seems to me that each Supreme Court Justice has agency here. The Associate Justices don't work for Roberts. He didn't hire them, and he can't fire them. And if one or more of them are hurting the Court by leaking, that is on them, not on the Chief Justice.  To be sure, the Chief Justice has a formal institutional role that other Justices don't have. But I don't see why that should make him responsible for their behavior.

 

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  1. Let’s hear a take on this being all a piece of fiction, or at least 90% of it being fake. Why isn’t anyone asking the editors of CNN to back the ethics being such an extensive leak story and to back it up with verifications. I know the media doesn’t exactly have ethics these days, but if they are going to publish so much based upon supposed leaks I hope they had some fact checking in place. Let’s at least hear about that process.

    1. You wants leaks regarding the editorial process at CNN — to flatter your right-wing fever dreams about journalism in general and leaks to journalists, fueled in particular by a downscale law professor’s blog post (at a discredited site wearing the pelt of a once-legitimate publication) — concerning a CNN report on the editorial process at Supreme Court?

      1. What’s wrong with asking CNN to provide support for its assertions? Surely you don’t think we should accept them on… faith?

        1. Joan is one of the best reporters in the business, with established contacts throughout the bench and Supreme Court bar. If she made something up, her career would be over by now. (Seriously.)

          1. If you say so. I don’t have the background to evaluate her reputation. And I don’t know if she made something up, or if her sources made something up, or if she engaged in motivated interpretation of the facts, or if her sources did, or if she or her sources misinterpreted the evidence, etc.

            When something is reported transparently, I can always check the sources. But if something is reported without transparency, the possibility that it is fabricated or otherwise incorrect is always on the table and can’t be dismissed out of hand.

            1. ” I don’t have the background to evaluate her reputation. And I don’t know if she made something up, or if her sources made something up, or if she engaged in motivated interpretation of the facts, or if her sources did, or if she or her sources misinterpreted the evidence”

              So what are the people who ARE in position to evaluate these things saying publicly? That should give you a good idea.

              1. So now I have to evaluate Prof Kerr’s ability to evaluate Joan Biskupic? Yikes.

                And of course, it’s always possible that her career would be over if she didn’t make stuff up. That’s a problem in fields like journalism.

                1. Joan is a person. People generally care about their reputations. She has a good one and one of long duration. If she is lying, it will come out. Her reputation will suffer accordingly. This tilts in favor of believing she is reporting true things.

                  There are people who could speak up, including anonymously, to other journalists blow the story up. To my knowledge, that hasn’t happened. If people who know the truth could contradict her, but haven’t, that’s another reason to believe what she is saying is probably true.

                  As Orin points out, the stories aren’t terribly unusual or outlandish, so are plausible.

                  All this provides some reason to assume it’s true rather than assume it’s false.

                  Against these facts, what reason do we have to believe she is making it up?

                  This kind of thing could really springboard a young career, but she already has an established reputation. It seems she has more to lose than to gain. She could write any number of things.

                  I doubt there is any substantial monetary benefit to her writing this instead of some other piece. She writes regularly about the Court.

                  Maybe she is trying to paint someone as looking bad and someone else as a hero for ideological purposes. Perhaps, but, as Orin points out, there really isn’t much surprising in here. Nothing that outlandish.

                  The most plausible motive for making up these stories about the Court is that she was trolling Josh Blackman and it worked to spectacular effect, getting him to write a deliciously comedic piece in which he revealed his utter lack of seriousness as a rational, objective thinker. (The image of Roberts going around to each of the other Justices to get them to pinky swear to secrecy is hilarious, but not quite as hilarious as the one year deadline Josh sets for Roberts to complete his Encyclopedia Brown sleuthing.) But I doubt Biskupic could have anticipated that it would work and how well it could work.

                  The best evidence is in favor of believing the piece, but no one (looking at you Josh) should bet their reputation on it. Well, except for Joan, because she knows whether she is reporting accurately or not. It is reasonable to non-hysterically take it at face value.

                  1. “Well, except for Joan, because she knows whether she is reporting accurately or not.”

                    She knows whether she is accurately reporting what her sources tell her. We don’t even know that.

                    “It is reasonable to non-hysterically take it at face value.”

                    It certainly is. But it’s also reasonable to dismiss it as completely bogus. That’s the problem with non-transparent reporting.

                    1. We don’t even know that.

                      Which is what I said. ?

                      It certainly is. But it’s also reasonable to dismiss it as completely bogus. That’s the problem with non-transparent reporting.

                      No. It really isn’t reasonable to dismiss it as completely bogus. There is little, if any, reason to assume it is completely bogus. It is reasonable to remain entirely agnostic on the matter, but not to dismiss it as completely bogus. Those are different things. That’s the point. You are going off into Dr. Ed land by asserting that it is reasonable to assume weird conspiracy theories simply because an often credible source with reputational interests at stake has used unidentified sources (even though she has not been contradicted by contrary sources (anonymous or otherwise).

                      It’s the difference between being an atheist, being an agnostic, and being a convinced Scientologist. The best evidence supports the first, though the second is the most rigorously defensible as the matter is not subject to conclusive proof, the third is just bat shit crazy.

                      You seem to be saying it is as reasonable to dogmatically adopt beliefs with no evidence supporting them as it is to adopt contingent beliefs based on the best available evidence (and/or the lack of evidence where one would expect to see evidence). If you are saying we should all be agnostic regarding Joan’s reporting, those aren’t the words you used. You said “completely bogus” which is the opposite of being agnostic.

          2. I don’t think it is so much that she is “making stuff up” as she is reporting stuff that is undersourced, underanalyzed, biased, and unconfirmed.

            She’s reporting what her sources tell her. What her sources tell her, however, is not necessarily an accurate picture of what goes on at the Court.

            Good reporters don’t just rush to press with juicy gossip. They confirm it, and if they can’t confirm it through reliable sources who can account for the initial sources’ biases, they don’t report it. And that’s really tough, because their employers want something to publish.

            Joan Biskupic is the Judith Miller of legal reporting. Yes, indeed, she is reporting what her sources tell her. Doesn’t mean she is reporting stuff that is fit to report.

            1. Thank you. Some people do not seem to understand that “not a deliberate lie” is not the same as “reliable truth.”

            2. The story implies multiple sources.
              Pretty easy to make sure they corroborate one another.

              Maybe it’s manipulated or made up by those sources, but I don’t think there’s any evident reason to be skeptical.

              1. A justice and that justice’s clerks = multiple sources. But that doesn’t mean you have anything reliable if that’s the sourcing.

                Look, there is a pool of 45 people who are privy to some of these communications, and a pool of 9 that is privy to all of them. It’s actually really hard to get actual, reliable information, and really easy to end up with only one side of the story when someone leaks to you. Which means a lot of the time, she should not be publishing.

            3. “Joan Biskupic is the Judith Miller of legal reporting.”

              I don’t see it. Perhaps because I have experience as a reporter and editor.

              (Judith Miller’s failures do not diminish the luster of her half-brother, Jimmy. Jimmy handled cowbell on the flip side of that one, too.)

          3. People said that about Jayson Blair too….

            1. Jayson Blair was exposed roughly four years into his career because, if you make up stories and publish them via a national news organization, you tend to get caught. Joan Biskupic has been covering the Supreme Court for over 30 years now. If she was Jayson Blair, she wouldn’t have this job anymore.

              Which is not to say sourcing, fact-checking, etc., no longer applies to her, but the Blair situation provides reasons why this is very different.

              Blair’s stories were sometimes too good to be true. As Kerr notes, Joan’s stories are not particularly salacious or unexpected.

              Blair was an ambitious, not-yet-established journalist trying to make his reputation. Joan is a well-established journalist who has a substantial interest in protecting her already enviable reputation.

              Blair was caught because he published falsehoods in a national outlet and people who knew the facts noticed the story and contradicted him. Joan will be (and knows she will be) contradicted by sources (anonymous or named, now or later) if she is making things up.

              In short, the risk/benefit rewards are different for both and, if nothing else, she has seen enough fabricated stories blow up in journalists’ face (Blair, Brian Williams, etc., etc.) to know it would be really stupid to make things up in this situation. Which is not to say it is impossible that she has, but it has to be seen as less likely fabricated than not fabricated.

              Could she have gone rogue at the end of her career? It’s possible, but why over this story?

          4. Well, if you say so Orin, then I guess that ends the debate.

    2. They call unsupported narratives that you nevertheless insist people to inquire into a conspiracy theory.

      1. The “unsupported narrative” is the CNN story.

        1. CNN does it’s job and protects its sources. They are not fabulists – that would be a major scandal. And the Court would probably push back.

          1. That doesn’t make the narrative supported.

            1. So you just disbelieve every story you read in the newspaper?

              1. Well, I believe some and disbelieve others. If I have doubts and the paper supports its reporting, I can always verify it. But if the paper says something like, “sources familiar say X,” and I think, “X sounds like bullshit,” then there’s not really much I can do, is there?

                That’s why it doesn’t work for you to say that people who have doubts about the story are making unsupported claims. It’s on CNN to support its claims.

              2. I distrust any story based on unnamed sources on principle.

          2. I don’t think CNN is actually doing its job here. She’s not really reporting reliable information, and, additionally, as Prof. Kerr points out, very little of this was newsworthy anyway.

            1. Court gossip is part of any government beat – office politics make for political policy.

              How do you know the relationship is not reliable?

              1. Really, because I have heard that earlier reports of hers are inaccurate, and because some of the things she reports do not make a lot of sense.

                But also because the tone of what she is reporting suggests she is getting one side of the story.

                1. ‘CNN is not doing its job here’ and its reporting is ‘unreliable’ . . . because ‘I have heard that earlier reports of hers are inaccurate?’

                  1. It’s on her and CNN to show that the reporting is reliable, not on Dilan to show that it isn’t.

      2. You mean like how the left calls everything “racist” without any factual support or reality?

        1. My problem with that comment, Jimmy, is “the left” is misleadingly ambiguous. Someone could not unreasonably read it to mean some indeterminate faction of people who self-identify as left of center. You and I know that every every single man, woman and child who isn’t unconditionally committed to voting Trump and the straight GOP ticket this November (the true and accurate definition of “the left”) calls everyone and everything racist all the time, everywhere and forever. Period.

        2. “You mean like how the left calls everything “racist” without any factual support or reality?”

          This is incorrect. “The left” is very clear that the thoughts and actions of many people are not and can never be racist. Of course, they are also clear that all of the thoughts and actions of other people are racist.

    3. I don’t think anyone serious has disputed Biskupic’s integrity.

      1. I would imagine that most serious people are unable to vouch for her integrity either way.

    4. “Let’s hear a take on this being all a piece of fiction, or at least 90% it being fake.”

      The Trump legacy in action.

      1. The Trump legacy exposing the media as the dishonest shills they have become since Watergate?

  2. I recall the several opinions and dissents issued near the end of the term that the ACA case was issued. Seemed several of those opinions had language that indicated bitter feelings among the justices. I havent seen anything approaching bitter feeling before or since.

    1. Perhaps more bitter than anything during John Roberts’ tenure, but far from the most bitter ever. James McReynolds alone was like 5000 times more bitter.

  3. The only leak I thought was mildly interesting was that Roberts was writing the DACA decision that way from Day 1.

  4. I agree, Roberts isn’t responsible for the other justices. But he is responsible for all the other employees. If one of them is leaking, it is on Roberts to make sure they are fired.

    1. Interviewing them himself would a silly waste of time. But asking the aid of the Marshals, if such was possible through the Court’s authority to order an investigation, they could narrow down a likely culprit.

      1. The proposal to hunt down office-gossip leakers was most disturbing and quite a contrast to popular attitudes of executive branch national-security-related leaks.

        1. Some presidents were notorious for trying to chase down leakers, G.H.W. Bush started to polygraph people left and right. Others, like Trump, seem almost powerless to stop leaks.

          1. Trump’s problem isn’t a “lack of desire” problem.

            It’s a “clenching his fist tighter on a puddle of water” problem.

    2. Contrary to the views expressed by Devin Watkins 2, Roberts is not responsible for all the other employees. If the leak does not come from a Justice, it most likely comes from a law clerk working on the staff of one of the justices. Each justice hires his or her own clerks, and Roberts has absolutely nothing to do with their hiring and firing, except for those on his own staff. He has relatively little contact with the clerks working for other justices, and no good way of investigating them. It’s theoretically possible that the leak came from someone working for the court as a whole, but it’s my understanding that those people don’t know very much, and thus the likelihood that one of them is the source of the leak is, in my view, very small.

      1. Or the leak came from a spouse.

  5. I appreciate this take on Josh’s article, and glad to see it coming from a co-blogger. All of Josh’s posts on these leaks give off the vibe of hurt feelings more than anything. All the discussion of “this is meant to be anti-Kavanaugh” and “this is pro-Roberts” was really just pathetic nonsense. And culminating with the article arguing the manager needs to fix this or get fired is the ultimate Karen take.

    1. Completely agree. Blackman’s whole series of posts about Biskupic’s articles seems to be little more than an extension of his hostility to Roberts arising out of some of the court’s June decisions.

      Whine on, blue June.

    2. In the eyes of a true believer, no sinner is worse than an apostate.

  6. Sensible post, Orin, but,

    I get that everyone is fascinated by any leak from the Supreme Court.

    I doubt you really mean “everyone.”

    1. “Everyone”, as in every single person alive on the planet? Surely not.

      “Everyone” as in every person reading his blog post? Almost certainly.

      Agree, very sensible post and a well argued rebuttal to Blackman’s nonsense.

      For myself, I don’t have a problem with leaks – there’s a good argument to be made that more transparency is beneficial. If you don’t want to know how the sausage is made, don’t read up on it.

  7. One sort of political observer sees leaks as inherently bad, while others see it as the public finding out how their government actually works. I understand why Nixon apologists would be averse to “leaks” to the media. Reagan’s first-term crew was also up to work they objected to having the public have knowledge of.

  8. If we aren’t going to get upset about leaks of the President’s conversations with foreign leaders, then it’s hard to summon much outrage about these leaks.

    If the Supreme Court wants to act like middle school drama queens then let them. Their reputations rest on their decisions not leaks. At least this is more public, I’d be willing to bet in years gone by such leaks were routine but happened across DC poker tables in the White House, and at Senators and cabinet officials residences and weekend retreats.

  9. RBG is the only one who comes out looking good here. She put herself above suspicion by keeping her cancer relapse secret for 4 months.

    She knows how to keep secrets safe.

    1. Justice Ginsburg’s conduct in that regard seems unremarkable in the context of similar circumstances (the Roberts fall, the Kennedy stent, the Rehnquist sedative addiction, the Scalia cornucopia of disease, etc.). In general, she appears to have been much more forthcoming than has been customary among justices with respect to health issues.

  10. We’ve seen worse. This is certainly not like Frankfurter and Douglas engaging in juvenile one-upmanship or the anti-Semite McReynolds leaving the room whenever Brandeis spoke.

  11. Leaks are honest lies perverted by ulterior motive. None are ‘good’.

  12. I couldn’t agree more, Orin.

    Roberts is no more responsible for stopping leaks than the Queen of England is for making Britons behave selflessly. He can model behavior and attempt to foster a certain kind of culture, but he has zero authority in this regard.

    As for interviewing every employee of the Court, that’s absurd. Setting aside what those kinds of gestapo tactics would do to Roberts’ reputation and morale at the Court, it would be pointless because most employees of the Court aren’t in a position to leak. The ones who are in such a position (justices and clerks) aren’t subject to Roberts’ authority.

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