Nina Totenberg Recounts RBG's Inadvertent "Leak" From This Term

"Of course, she hadn't told me anything about what the court had decided, only that I would find out in about 12 hours."

|The Volokh Conspiracy |

I encourage everyone to read this touching essay by Nina Totenberg about her dear friend, Ruth Bader Ginsburg. Here, I would like to flag a topic near and dear to me: Leaks. This leak though was inadvertent, and thankfully, innocuous.

I sometimes was asked how I could remain such good friends with RBG at the same time that I covered her as a reporter.

The answer was really pretty simple. If you are lucky enough to be friends with someone like Ruth Bader Ginsburg, you both understand that you each have a job and that it has to be done professionally, and without favor.

I think the only time that she told me anything she wasn't supposed to was a mistake. After the coronavirus outbreak and lockdown, our house was about the only safe place Ruth could go, and so from mid-March until the end of July, she came to us for dinner every Saturday night, except a few where we brought dinner to her. Periodically, she would get this evil grin on her face, and say something on the order of "You are going to be a very busy person this week." Translation: lots of big opinions for you to cover.

Then, one Sunday I called her about something else, and she said, "How did you like that Electoral College decision?" I couldn't believe my ears. My friend was human. She had, like the rest of us in these COVID-19 times, gotten her days mixed up. She thought it was Monday. I paused and said, gently, "Ruth, it's Sunday, not Monday."

She gasped. She was horrified. Beside herself at her indiscretion. Of course, she hadn't told me anything about what the court had decided, only that I would find out in about 12 hours. But still, she was lashing herself for her mistake. I couldn't help but laugh.

I think this anecdote can be used to rebut the presumption that RBG was leaking to Joan Biskupic. If Ginsburg was so aghast at this minor indiscretion, would she tell Joan all the intimate details of conference? Again, we may find out if Joan continues to publish exposes this summer.

We also learn that RBG wore an RBG face mask:

And amid COVID-19 pandemic, she took to wearing a mask, with her tiny face printed on it.

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  1. A leak is also known as free speech. Unless it implicates national security (and Supreme Court “leaks” rarely do), there is nothing wrong with it.

    Public institutions do not have a right to absolute secrecy when deciding public issues. Fear of the sunlight is appropriate behavior only for vampires.

    Some on the Supreme Court are afraid of televised oral arguments. Which is an insult to the intelligence of the American people and also indicative of a desire for reduced accountability.

    1. I am also afraid of televised oral arguments. I already think the Court is the most transparent of the branches. A TV camera would, in my view, make it less transparent.

      1. The Court being afraid of televised oral argument is not transparent.

        It is arrogant. The People have a right to see how the Court intends to interpret OUR Constitution. And why.

        That someone, somewhere, might form a mistaken opinion is not a valid reason to hide proceedings.

        1. The camera only picks up soulless shells.

        2. Transcript of oral argument is released the same day and the audio is generally released by the end of the week. Both of these are made freely available on the internet.

          It is an insult to the intelligence of the American people to assume that just because there are not moving pictures, the public does not have access to oral arguments.

          1. The public likes access to pictures of real human beings. As do lawyers. As do academics. As do judges.

            The reason they are deprived of this is to shield the Supreme Court from scrutiny. They want the public’s attention elsewhere.

    2. Your comment is also an insult to the intelligence of dedicated public servants who serve on the Court. Given the very short time for arguments the last thing we need is a television “demonstration” from the peanut gallery.

      1. The short-time for oral argument is a choice made the Court itself. The Court should not escape public scrutiny and accountability based on its own decisions.

        There is no requirement in law or reason that oral arguments must remain so short. And if you knew your Supreme Court history, you would know that originally oral arguments were anything but the brief affairs they are now.

        It is not the Supreme Court’s job to worry about what might be said about them on Twitter or Fox News or CNN. That someone, somewhere, might not like what they see might be a bug. Or it might be a feature. Accountability implies it is not the for the Supreme Court itself to judge the quality of its own work or reasoning.

        Fear of transparency raises more questions of legitimacy than the opposite.

        1. It is not the Supreme Court’s job to worry about what might be said about them on Twitter or Fox News or CNN.

          I mean, actually, it is. It couldn’t be more the Supreme Court’s job to worry about things that might affect the Supreme Court’s functioning.

          The Supreme Court, of course, is not supposed to be “accountable” in the first place, and nothing about televising arguments makes the Supreme Court more “transparent.”

    3. Which is an insult to the intelligence of the American people

      You can’t insult something that’s nonexistent.

    4. A leak is also known as free speech

      Public employees are bound by their employment contracts, and the consequence of violating them can be termination. Free speech has nothing to do with that.

    5. re: “A leak is also known as free speech.”

      No. A leak is an unauthorized release of information you have in your official capacity as an employee. Neither the law nor any reasonable moral position gives you the unilateral right to disclose information owned by your employer. (Like you, I will ignore the cases with national security implications. I also exclude whistleblowers from this analysis.)

      Now, I will grant that the principle of free speech may give a journalist (by which I mean almost anyone) the right to re-disclose the contents of the leak but the original leak itself is most definitely not “free speech”. Governments may have a lessened right to control information about their internal deliberations and processes but it is not lessened to non-existence.

      By the way, your rant about televised oral arguments is a strawman. The concern is not about the intelligence of the average viewer. It’s a fear that the lawyers and officers of the court (including the judges) may be adversely influenced by the presence of cameras and may, consciously or not, bias their behavior in ways that adverse to the goals of justice. Note, by the way, that oral arguments are almost irrelevant to the actual decisions. All filings are already public, as is the final decision which includes a detailed explanation of its reasoning. The Judicial Branch is already the most transparent branch of government by a long shot.

  2. “I think this anecdote can be used to rebut the presumption that RBG was leaking to Joan Biskupic. If Ginsburg was so aghast at this minor indiscretion, would she tell Joan all the intimate details of conference?”

    This is illogical. If RBG was the source, but didn’t want people to know it, then this could be some story Joan is making up so we think RBG wasn’t the source. Who’s going to contradict her? Whether the leaks continue is far more probative.

    1. Nina Totenberg and Joan Biskupic are different people.

      1. Then why have we never seen them in the same room together?

        Q

  3. The answer was really pretty simple. If you are lucky enough to be friends with someone like Ruth Bader Ginsburg, you both understand that you each have a job and that it has to be done professionally, and without favor.

    BWA HA HA HA

    Totenberg was as faithful to press independence as Ginsburg was to the constitutional text — pure sophistry.

    1. Just so.

      I sometimes was asked how I could remain such good friends with RBG at the same time that I covered her as a reporter.

      When has there ever been a presumption that stenographers can’t be pals with those they take dictation from ? Indeed it’s far from unknown for the stenography to occur in the sack.

  4. What I find odd about this anecdote is that she repeatedly made disparaging comments about Trump. Apart from the merits of those criticisms, they were over or very close to the line ethically, and my recollection is she ended up apologizing for one of them.

    It seems strange that she was so aghast about tipping off a decision one day early to a reporter she knew she could trust not to publish it but yet felt so uninhibited about commenting publicly on a political figure with multiple cases in front of her.

    She was a very impressive person and I don’t mean to diminish that, but I’d be careful about reading too much into this anecdote.

  5. If you are lucky enough to be friends with someone like Ruth Bader Ginsburg, you both understand that you each have a job and that it has to be done professionally, and without favor.

    I think that ship clearly sailed in 2016 when Ginsburg publicly opined, very negatively, about an individual who was in the running for President. This was particularly egregious since she, as a Justice, might have to adjudicate cases that could decide the election akin to Bush v. Gore. In the end, it also sullied her vote on any of the cases that hinged on Trump’s “underlying motivation”, vs. the words, of an EO.

    In most cases, judges in lower courts can (excluding some en banc hearings in circuits where the panel is normally comprised of all eligible judges) recuse themselves with no impact on justice. A recusal on SCOTUS can cause a non-conclusive 4-4 tie and possibly even leave a serious circuit split to further muddy the waters. Thus, Justices need to be particularly vigilant about not saying stupid things in public which will lead the public to question their (in this case obviously real) bias in upcoming cases.

  6. Nina Totenburg has a sense of humor – rare on the left.

    1. It is well known that Republicans and conservatives have all of the best comedians . . . and actors . . . and musicians . . . and directors . . . and television series . . .and movies . . . and music . . .

      That’s why Wyoming, Alabama, West Virginia, Oklahoma, and Idaho are the creative, artistic, scholarly, and literary centers of America.

      1. Not to mention the best folk singers. Who needs Bob Dylan when you have Bob Roberts?

        (yes, I actually saw the film in the theater way back in 1992)

  7. “And amid COVID-19 pandemic, she took to wearing a mask, with her tiny face printed on it.”

    Know what else leaks? MASKS.

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