The Volokh Conspiracy

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Joan Biskupic's SCOTUS Analysis Lacks Any Inside Information From Leaks

On the plus side, Chief Justice Roberts won't have to resign.


Last year, the Supreme Court was a sieve. CNN reporter Joan Biskupic wrote an "an exclusive four-part series [that] offer[ed] a rare glimpse behind the scenes" at the Court. I summarized her analyses here. At the time, I was very disappointed in the Court, and the Chief Justice in particular, for the sheer number of leaks from conference. I even called on Roberts to step down if he could not bring the Court in line. Well, I am happy to say that Roberts can stick around for another term.

This morning, Joan Biskupic published an article about the term. There were no promises about a four-part series. There were no inside scoops. There were no unnamed sources. There was zero reports about deliberations at conference. Everything she wrote about was based on public information. There was very little that I hadn't written about myself. Gorsuch is reckless. Kavanaugh is conciliatory. Barrett is cautious. 3-3-3. Yes, we know.

Shortly after this term concluded, I questioned whether RBG's absence could inhibit Biskupic's reporting. There is no way to know for sure. But we do have something of a natural experiment. With RBG, Biskupic wrote a lot about Court deliberations. Without RBG, Biskupic wrote nothing. I imagine it can work this way: Ginsburg offered some tidbits, then Biskupic checked with other sources to "confirm" details, and then built a story from there. The most important source is always the first one.

As far as I can recall, the only reporting this term that quoted unnamed Justices was from Nina Totenberg. She offered some praise of Justice Barrett: "Barrett, turned out to be, according to several justices, a most congenial colleague."

I am still quite curious if Fulton, and perhaps California, flipped. But I am happy to let that curiosity die if it means Court proceedings are not leaked.