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.

Comments

[Cal Cetín]

"There was very little that I hadn't written about myself."

I hate to pile on to Prof. Blackman, but there is very little *anyone* has written that the professor hasn't previously written about, usually in this blog.

[DaivdBehar]

Those Supreme Court conferences should be livestreamed on C-SPAN 2 or 3. All memos and communications between clerks and other staff about cases should be made public, including caustic remarks about the parties. They all belong to the public and are of public interest.

[rsteinmetz]

I know he wants to pin the leaks on RBG, but that may be wrong. The leaks could have come from her clerks who got information from the justice. I know only the justices attend Justices Conferences but surely the justices discuss them with their clerks, how else would the clerks know how to assist their justice.

[dwb68]

And there were probably memos, emails, and draft opinions passed around that the clerks had a hand in writing. There is a cert pool after all.

[Rossami]

Distinction without a difference. Just like in the military where "the commander is responsible for everything his troops do or fail to do", a Justice is responsible for everything his/her clerks do.

That said, there is the possibility that some other Justice's clerk was the leak and that the timing of the clerk's departure was merely coincidental with Justice Ginsberg's death. The 'natural experiment' above cannot exclude that hypothesis.

[Greg J]

Correct on both points.

The question then becomes "how long has Biskupic been benefiting from leaks about SCOTUS deliberations?"

If longer than the term of a clerk, we're back to "it's highly likely that RGB is guilty"

[dwb68]

I suspect that the source was not RBG directly, but one or more clerks. This seems like the kind of thing a young, naive, idealistic clerk, fresh from school, would do, thinking it was good for the court. I find it implausible RBG would leak deliberative details. She seemed to have too much respect for the institution to do that.

[Aladdin's Carpet]

Sort of related: I do wonder sometimes if anyone has been caught insider trading / using stock information for cases that moves markets.

Like not idealism, but cynicism and selfishness, could drive it. Someone could have made a pretty penny on quite a few cases last term.

[SKofNJ]

I find it entirely plausible that she would be the source of the leaks since she had no problem publicly criticizing President Trump. I think she was an arrogant person who didn't think the rules ought to apply to her because, she believed, she was on the side of justice and righteousness.

[Bob from Ohio]

" I find it implausible RBG would leak deliberative details."

Old lonely widow confides in younger female reporter is not at all "implausible".

[Jon S]

So, does John Roberts still have to resign? Washington waits eagerly on Blackman's verdict! Perhaps, Blackman keeps Roberts on probation for another year? Suspense is killing me.

[ah....Clem]

And what's so terrible about "leaking" information about internal deliberations? Seems to me that it might be better if everything was public.

But I am truly relieved that Roberts won't have to resign, thanks to the forgiving nature of Prof. Blackman.

[Dilan Esper]

Basically people act differently when they know they are being watched. It's the same reason why a case that can't settle despite able lawyers writing settlement letters to each other can settle at mediation. Because in mediation, with that cloak of secrecy, you can talk more forthrightly.

Obviously, there's a balance here, and SCOTUS, just like other branches of government, eventually makes things available for historians. And there are some leaks as well. But if the justices think everything is going to leak, that will chill their communications, and you'll have less deliberations and ultimately worse output.

[Krayt]

I'd wayyyyyyy rather see cloakroom negotiations of Congress than of the Supreme Court, and less still official meetings held behind closed doors.

It would probably sicken House of Cards fans.

[Dilan Esper]

And if we did see cloakroom negotiations in Congress, what little bipartisan accomplishment that still goes on would be thwarted. Heck, it would be extremely hard to pass anything partisan!

One of the reasons we are in the predicament we are in with respect to Congress is that thanks to the Internet and the 24 hour news cycle, political addicts are constantly being kept informed about meetings and dealmaking. And as a result, everyone has to posture to their base rather than going in there and making the deal. Let's say Mitch McConnell and Joe Biden wanted to make a deal on something- if it is a high salience issue, the moment their people started meeting there'd be a huge amount of publicity, and demands from each party base that the deal be torpedoed.

As fun as it would be to be a fly on the wall, this isn't something that we want to spread. It's something we want to contain.

[ReaderY]

Great news! Professor Blackman will be able to continue his speculations untempered by the possibility that they might get refuted by evidence.

What’s to lose?

[QuantumBoxCat]

"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."

Ladies and gentlemen......science!

[Bob from Ohio]

Its science adjacent.

Correlation is not always causation but sometimes it is.

[CJColucci]

Well, I am happy to say that Roberts can stick around for another term.

John Roberts is surely sleeping easier tonight.

[DWB]

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

Damnit!