CNN's Joan Biskupic on Justices Leaking Information To Her: "Don't I wish."

I hope the Justices, and their clerks, exercise even greater discipline to avoid further leaks.

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Over the past several years, CNN Reporter Joan Biskupic has received leaks from the Supreme Court. It is not clear if she is talking to the Justices, to law clerks, or to people who know the Justices or law clerks. Based on these leaks, Joan wrote about private conferences, internal deliberations, changes in opinion authorship, and even personal dynamics between the Justices. These leaks are intriguing, but ultimately, dangerous for the Court.

I don't blame Biskupic. She is a committed reporter who does her job. It isn't her role to preserve the Court. Her job is to report. And she does it better than just about anyone else.

Shortly after the October 2020 term concluded, I started the countdown for Biskupic's next leaks. But this year was different. Her reporting from the current term lacked any inside information. I speculated that Justice Ginsburg's absence may have dried up her sources.

Now, here we are in early September. The Supreme Court's shadow docket is in overdrive. And people are clamoring for inside information about the Court's deliberations. But Biskupic has not published any inside information.

Mike Sacks tweeted, "I am honestly astounded the liberal clerks or even justices haven't started leaking deliberations on big cases yet given how hopeless their cause is now." He added, "If the current crop of liberal SCOTUS clerks remain too careerist to leak what's going on to us around here, then yo justices lurking here at least go tell it @JoanBiskupic like you always do."

Joan replied, "Don't I wish."

 

 

I was shocked by this tweet. I don't recall ever seeing a Supreme Court reporter make a public appeal to the Justices to leak information. Usually, these entreaties are made through backchannels. But Joan has now sent out the Bat Signal, seeking help. Leaking private deliberations violates the canons of judicial ethics. Granted, the Supreme Court justices are not bound by the code of judicial conduct, but they generally purport to follow the rules. Here, Joan is publicly asking Justices to violate their code of conduct.

The first analogy that came to mind was when Trump asked Russia to release Hillary's emails. Trump later claimed he was joking. Maybe Joan will also say she was being sarcastic. It doesn't matter. The damage was done.

Ultimately, this cavalier approach to leaks may be counterproductive. If Joan does write something about internal deliberations, the presumption will be that her Bat Signal tweet stirred the pot. Justices, and those in their orbit, who may have been tempted to feed Joan would look elsewhere.

Yesterday, I wrote about Joan's podcast with SCOTUSBlog. The real reason I transcribed the session was to see if Joan discussed her leaks. And she did (starting at 20:20):

Now as I, as I'm working on these books. And as I worked on the Chief's book, I was also trying to add something for readers about the behind-the-scenes dynamic that would inform the current court. And I think that I think I first got a taste of that when I was doing the book on Justice Sotomayor. The book I wrote about Justice Sotomayor, which follows the Antonin Scalia book was not a biography, like the O'Connor and Scalia books were it was much more of a political history. But because while I was doing that, I got some inside information about some, you know, some events at the court and switched votes. For example, what happened behind the scenes when they the justices first took up the University of Texas at Austin case that had been brought up by Abigail Fisher, the affirmative action case, that kind of gave me a taste for finding out more of what was happening behind the scenes. So I, I found that I was pivoting a little bit to try to get more up-to-date information of what was happening, even though I was looking back at people's lives. And that's why when I did the Chief, the book on the Chief, it was a real pleasure to go to Johnstown, Pennsylvania, where his parents had met, grown up and, you know, go to the library there to study the ethnic history of his family. But it was also quite challenging to find out, for example, what had really happened in the first Affordable Care Act case where he, you know, we had known that he had changed his vote on the individual insurance mandate, because of the reporting Jan Crawford had done. But I found that along the way, that he also switched his vote on the Medicaid portion. And I became interested in that and wanting to pull that out of various sources at the court. And that has become a nice challenge to have. And that sort of subtext of of my reporting is not, you know, it's not the main thing that I want people to take from these books, because I want them to be, you know, character studies. But it's been a nice little bonus. And it's helped bring more attention to the reporting, because people, people hardly know anything about what's going on behind the scenes. The court carefully guards a lot of this. And it's been, I felt fortunate that I've been able to find out some things.

I hope the Justices, and their clerks, exercise even greater discipline to avoid further leaks. Let Joan keep wishing.

NEXT: Is Administrative Law Either? A Debate

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  1. The 9 justices are pretty much a mini-legislature, they will leak if it suits them. The only thing that suits them more, though, is the "cult of the robe" which will be undermined by to many leaks. They all worry about their institutional legitimacy, to some extent.

    1. Dear right-wingers

      We wouldn't get too attached to that '9' figure if we were you.

      Sincerely,
      the liberal-libertarian American mainstream

    2. Gentlemen, the optimal number of leaks is NOT zero

      1. But the blackman kid was "shocked by this tweet"!

        It is not easy for the blackman kid to be shocked by a tweet. It hardly ever happens. So, there must be something more than silly nonsense going on here. The blackman kid doesn't go around being shocked over nothing.

        The "leaks" that the blackman kid hated stopped. Later, the reporter who had previously "leaked" tweeted "Don't I wish". This should shake each and every decent human being to their core. This is the sort of shock that most of us won't experience more than once in a lifetime. Pay attention and be appropriately shocked!!!

  2. All conferences, memos, emails, urinal discussions should be live streamed. "You like opera, right? Two tickets to La Traviata if you change your vote."

    They all belong to the tax payers. We are sick of these failed, arrogant, worthless elites looking down on us.

    1. If that happened, and we say that horse trading, and such, then the (tarnished) patina of objectivity that the Court has for its opinions evaporates. Therefore, it won't happen.

      We can all stop pretending, at this point, that the Court is anything other than a political institution. Justices us legal reasoning to backwash a pre-determined desired policy outcome in any given case. The only problem we have now, is that the living constitutionalist justices are more than willing to go whole hog on while supposed originalists are not.

  3. I can't believe Josh actually wants a no-leak Court.

    1. Josh is very smart, productive, and energetic. As with most elite lawyers, he is immature, being a bookworm/nerd/on the autism spectrum. He spent his time memorizing 7000 rules. He is likely one of the few people on earth with a real understanding of the Rule Against Perpetuities.

  4. This is nonsensical.

    An expression of regret from Biskupic that she doesn't get leaks from Justices is turned, by Blackman, into a shocking public appeal for inside information. What an ass. Sometimes, a cigar is just a cigar.

    Meanwhile, Mike Sacks thinks that "careerism" is the only reason liberal clerks haven't leaked.

    1. He says careerism, which is perhaps another way of saying they are worried about the reputation of the institution for which they have invested their life's ambition to get too. It doesn't get any higher for a judge. And after all, this is twitter...short and punchy tends be the style.

    2. "she doesn’t get leaks "

      "she no longer get leaks" is more accurate. Leaks before, none now. The only change is her source is dead.

      1. You figure the source of leaks concerning the Obamacare decisions were liberals, you bigoted hayseed?

        1. Please refrain from protecting your bigotry and hatred on those who have the temerity to disagree with your opinions.

    3. Seriously. Not to mention that, in context, Biskupic's comment reads more as a humorous denial that justices have leaked information to her than it is a public entreaty for the justices to leak. Blackman is a joke.

      1. Prof. Blackman is the future of America's conservative legal academia.

        I am more than content.

        Mostly because I enjoy watching conservatives get stomped at the marketplace of ideas.

        1. Not certain get out the vote efforts for cattleyards of idiots yields a well-pondered stomping in the marketplace of ideas. Stroking an ego and telling them they are doing the right thing is not well-pondered consideration.

          Decades ago, on the eve of an election, Jeff Greenfield, iirc, gave an opinion piece, basically, "You've been hearing a lot lately about the importance of voting. I say, if you aren't particularly concerned about the issues, don't vote. Let those who do care, decide."

          No matter. Whoever wins, wins, so their families can do well, acquisition-of-dollars-wise. But sure, let's listen to memes so we can think ourselves good people. The corruptions tell us so.

          1. Being disaffected is one way for clingers to cope as they await replacement.

            1. Please refrain from projecting your bigotry and hatred on those who have the temerity to disagree with your opinions.

              1. Quit whining, clinger.

                1. You may want to look at "the man in the mirror "

                  "I'm gonna make a change for once in my life
                  It's gonna feel real good, gonna make a difference
                  Gonna make it right
                  As I turn up the collar of my favorite winter coat
                  This wind is blowin' my mind
                  I see the kids in the street without enough to eat
                  Who am I to be blind? Pretending not to see their need
                  A summer's disregard, a broken bottle top
                  And one man's soul
                  They follow each other on the wind, you know
                  'Cause they got nowhere to go
                  That's why I want you to know
                  I'm starting with the man in the mirror
                  I'm asking him to change his ways
                  And no message could have been any clearer
                  If you wanna make the world a better place
                  Take a look at yourself and then make a change
                  Na-na-na na-na-na nana-nana, oh-oh
                  I've been a victim of a selfish kind of love
                  It's time that I realize
                  There are some with no home
                  Not a nickel to loan, could it be really me
                  Pretending that they're not alone?
                  A willow deeply scarred, somebody's broken heart
                  And a washed-out dream (Washed-out dream)
                  They follow the pattern of the wind, you see
                  'Cause they got no place to be
                  That's why I'm starting with me
                  I'm starting with the man in the mirror (You)
                  I'm asking him to change his ways (You)
                  And no message could have been any clearer
                  If you wanna make the world a better place
                  Take a look at yourself and then make a change
                  I'm starting with the man in the mirror (You)
                  I'm asking him to change his ways (You)
                  And no message could have been any clearer
                  If you wanna make the world a better place
                  Take a look at yourself and then make that change
                  I'm starting with the man in the mirror (Oh, yeah)
                  I'm asking him to change his ways (To change)
                  And no message could have been any clearer (Ooh, ooh)
                  If you wanna make the world a better place
                  Take a look at yourself and then make a change (Come on!)
                  You got to get it right while you got the time
                  'Cause when you close your heart (You can't)
                  Then you close your your mind (Your mind)
                  I'm starting with the man in the mirror (Oh, yeah)
                  I'm asking him to change his ways (To change)
                  And no message could have been any clearer (Ooh, ooh)
                  If you wanna make the world a better place
                  Take a look at yourself and then make that change
                  Stand up
                  Stand up (Make that change)
                  Stand up and lift, yourself now
                  Man in the mirror
                  Ooh, ooh, ooh
                  Make that change (Stand up, stand up)
                  You know, you know
                  You know (Man in the mirror)
                  Change
                  Make that change"

    4. Much like a public figure asking for the contents of known previously leaked information being a call for new criminal acts. If Democrats didn't have double standards they'd have no standards at all.

  5. "I hope the Justices, and their clerks, exercise even greater discipline to avoid further leaks."

    The only reason to postpone a leak is to avoid manipulation of the stock market. After any stock-market effects of the decision are out of the way, let them leak like sieves. The more the public knows about what its rulers are doing, the better.

    1. I'm fairly sure, like the huge sell offs that Congress did before the COVID briefings, that Justices can (and do) buy/sell on insider information of a decision they know is coming.

  6. Who is Mike Sacks and why does he think justices follow him on twitter?

      1. Should be following Mike Hunt instead.

  7. Speaking of which, it's been about a year or so since the ultimatum for Chief Justice Roberts to resign over leaks to Biskupic...

  8. I have to wonder what it's like to be JB, in a constant state of high dudgeon over small-bore stuff. Can't be pleasant, either for him or whoever he may have in his life.

  9. Terrible conduct by Biskupic.

    The justices, who until this tweet were blissfully unaware that she wished to receive leaks from them, are now aware.

    I'm sure they're beating a path to her door as we speak.

    1. Even the conservatives are mocking poor Prof. Blackman.

      Perhaps I should ease up on him a bit.

  10. "These leaks are intriguing, but ultimately, dangerous for the Court."

    I am amazed that JB is interested in this topic! Hey everyone-

    Do you remember when the ACA was before the Supreme Court? And then ... there was this weird period of time before the announcement of the opinion, when you had a full-court press by a bunch of VC bloggers (such as Randy Barnett) and others? And it seemed so weird! Right! Because it seemed like they were making arguments about influencing the Court, which would be silly, right?

    I remember, because I argued against some of the more paranoid people, because SCOTUS doesn't leak like that.

    But then afterwards, we learned that there was a leak. Not just a leak, but a specific and targeted leak by a clerk! And so we had all these people, including bloggers here, who KNEW ABOUT THE LEAKED DELIBERATIONS AND WERE WRITING IN AN ATTEMPT TO INFLUENCE THE DECISION, BASED UPON THE LEAK, AND WITHOUT DISCLOSING THAT THEY LEARNED OF THIS INFORMATION FROM A LEAK.

    We all remember that, right? So, when is JB going to pursue that story? It's a real story! It involves the Court! I bet he even knows some of those people- heck, I am quite sure he could ask Randy Barnett what he remembers.

    ....I won't hold my breath.

    1. "We all remember that, right? So, when is JB going to pursue that story?"

      Probably around the same them that CNN pursues the story of who was leaking to Biskupic.

      1. Does CNN engage in hypocritical, cherry-picking whining when someone else breaks a story? If not, your comment seems pointless.

  11. No mention -- at this hackish, polemical, White, male, right-wing blog -- about the leaks designed to direct attention toward ostensible squishiness among the Republican justices with respect to Obamacare deliberations.

    Perhaps because a Conspirator or two was involved in the effort to derail a statute designed to improve health care for many Americans?

    Carry on, clingers. Without the respect of the American mainstream, of course, and without any hope of reversing the tide of the American culture war.

    1. Please cease your urges to project your bigotry and hatred on those who don't share your thoughts or opinions. You are not the arbiter for society.

      1. Knowledge is good, you bigoted right-wing culture war casualty.

  12. "She's just a reporter" is no excuse. It might be that she doesn't think that she is doing harm to the institution of the Supreme Court, or it might be that she thinks the harm is outweighed by some other good, or it might be that she thinks that the Supreme Court is a harmful institution and therefor damaging it improves society. I don't know her thought process. Any of those would be respectable positions to take. I hope she has thought it out and arrived at one of those conclusions. But just saying she's a reporter so it's her job to report, and therefor she didn't do anything wrong in reporting, that is just incorrect. Every professional has a duty to consider whether their work is helping or harming humanity as a whole, and to refrain from doing it if it is harmful. Reporters are no exception.

    1. Journalism tips from a White, male, right-wing blog's commenters are always a treat! I only wish I had had the benefit of these insights when I was at the news desk.

      1. Please curtail your polemic and misguided bigotry in thinking that all [ fill in the blank] individuals think, act believe or experience alike. Judge people by the content and character of their hearts not some arbitrary identity. It's bigotry to judge and demean people on the basis of their race, religion, national origin, or sex. Your speech is hateful and laced with bigotry and intolerance for individuals.

    2. Whether she's a staffer at some big-shot media institution or a little old lady blogging from her trailer, she should be trying to get leaks and inform the public of what their rulers are doing.

  13. It’d be foolish for the liberal Justices to leak. What if Congress decides it’s an impeachable offense worthy of investigation?

  14. "The first analogy that came to mind was when Trump asked Russia to release Hillary's emails. Trump later claimed he was joking."

    I certainly laughed at it. It was a hilarious dig at her security, pointing out that it was so bad that the only major government that DIDN'T have her emails was our own. (Neglecting the NSA, which would never admit to having them.)

    That's why the Democrats were so swift to issue the talking point that it was a genuine request, and not just a request that they dig the emails out of their archives, but that they hack her emails going forward. Like the relevant server hadn't already been wiped, and not with a cloth.

    Then every idiot Democrat and NeverTrumper picked up the talking point and beat it to death.

  15. "The first analogy that came to mind was when Trump asked Russia to release Hillary's emails."

    Are you really that stupid?

    The point of Trump "asking" Russia to leak Hillary's emails was to make these points:
    1: Since she was sending emails of insecure private server, Russia almost certainly had them
    2: Which means that a vote for Hillary is a vote for a woman who willingly gave Putin blackmail information to use against her
    3: The reason why Hillary set up her private and insecure server was that she wanted to avoid FOIA
    4: Which means not only did Hillary engage in corrupt deals as Sec State, she entered office knowing she was going to engage in corrupt deals, and that's why she needed to keep her emails hidden from the American people: to hide her corrupt deals from us
    5: The fact that she wasn't worried about Putin having her emails meant she was planning on doing corrupt deals with the Russians, so giving them the emails wouldn't increase her risk of exposure

    1. Are you familiar with the Trump administration's performance in the same context, you half-educated, bigoted, no-count clinger?

    2. (5x) Exactly.

  16. I am reminded of Apocalypse Now. US officer's troops are getting constantly attacked by Viet Cong who know too much. Officer decides he knows who is leaking, and kills him

    The attacks go away.

    Conclusion: he got the right guy

    Now, i don't think anyone killed RBG. But it seems pretty clear that her death, followed by Biskupic no longer having leaks to play with, proves that RGB was leaking to Biskupic.

    1. Do you figure Ginsburg was the source of The Leaks The Volokh Conspiracy Does Not Mention?

      (The Obamacare leaks, aimed at scuttling the law by clingers.)

  17. Prof. Blackman's adrenalized over-the-top criticism of Biskupic is not just entirely misplaced, it's a paradigmatic example of the ways that online commentary is coarsening discourse. He's committing one of the cardinal sins of commentary--ready, fire, aim.

    Professor, let me assure you--as an educated, successful legal professional who has read lots of online comments, is considered fairly intelligent by my acquaintances, and has never been diagnosed with any mental disorders--that when I read Biskupic's tweet I immediately saw it as her wry conversational eye-rolling comment in response to Sacks' overheated tweet about her. Goodness knows I have no reason to be particularly biased toward Biskupic, but it never even OCCURRED to me that she was suborning unethical behavior, "sending out the Bat signal", or doing anything dangerous to the Court.

    I'm perfectly fine with the idea that you honestly had that reaction. And that's fine. You are entitled to your honest reaction. But for Heaven's sake, STOP for a second sometimes--and before you leap toward your keyboard and snap out some hot take that is highly and excitedly critical of somebody you don't even know, and accuse them of intentionally doing something like that and doing "damage" to society, STOP for a second. THINK about whether it's just possible that maybe the thoughts and intentions you are imputing to this person you don't know never even went through her mind. Because I will bet you a thousand dollars that Biskupic never intended that tweet as anything more than a wry comment in conversation, like a wry comment of the sort she would have shot back if Sacks had been another person at the same dinner table.

    Professor Blackman, perhaps you leaped to this conclusion--not to mention your hot-take keyboard--because honestly this is how your brain would have worked, and this is what your intentions would have been if YOU had made this tweet. But SOMETIMES REASONABLE PEOPLE THINK DIFFERENTLY THAN YOU DO. I don't mean to shout at you, and your posts are often very interesting. But jeepers creepers, would you please calm down? If you were a judge, and I were a defendant in your courtroom and my freedom and livelihood depended on your view of the "reasonableness" of my actions, I would frankly be somewhere between apprehensive and terrified. Because you so often jump to the assumption that your view of what is reasonable and likely, especially in terms of intentions, is the ONLY possible reasonable way to see the situation. To borrow a line from a movie, at times like this, when your fingers itch to post a criticism of someone because they did something that "shocked" you, would you please do us all a favor and put your mouth in neutral just to let you think about it for a short while?

    Just a thought.

    1. I fully endorse this comment.

    2. Let's be thankful that Blackman is just a professor, and not someone capable of making judicial decisions.

  18. All of the above, but particularly this: "when I read Biskupic’s tweet I immediately saw it as her wry conversational eye-rolling comment in response"

    Calm your tits, Prof. Blackman.

    1. Don't change, Prof. Blackman. If anything, maybe give it an Emeril 'bam!' or two.

      (One of the best and most entertaining meals of my life occurred at the "kitchen table" of one of Lagasse's New Orleans restaurants. I was in town for a convention, a night early, so I just walked through the warehouse district and wandered into the place.

      I was alone, so after some discussion among themselves they offered me a single seat at a counter in the kitchen, which I later learned was highly coveted and very expensive. I had never heard of Emeril before. Some of the people I met at the table had flown in from Chicago or New York just to visit Emeril's and some other restaurants, with reservations made months earlier. I just stumbled in by happenstance. The menu was a stream of bits from dishes those in the dining room had ordered, often with a twist, usually with some commentary or performance from the chef. I left a lifelong fan. That the Food Network replaced Emeril Lagasse and Alton Brown with a twit like Guy Fieri is deplorable.)

  19. Just move judicial review to the proper owners..State Legislatures and we are all good.

  20. Those articles always read like a mash up of fan fiction and LARPing. If they were based on any "leak" it was probably the notorious "unnamed source" the media relied upon during the Trump administration to accurately report on such things as the fake Russia scandal. My best guess is they were 90% fiction 10% truth, "leaked" by what some third party overheard at a DC cocktail party.

    1. ...after a few drinks, which is why these anonymous reports generally involve dancing pink elephants.

  21. What's the BFD about these leaks anyway? So what?

    Yeah, I read Blackman's linked article about how damaging the leaks are, and his laughable, presumptuous, instructions to Roberts. It's nonsense.

    Just drop it, Josh.

    1. Don't change, Prof. Blackman! Movement conservativism needs you just the way you are!

  22. "If the current crop of liberal SCOTUS clerks remain too careerist to leak..."

    So, the only thing inhibiting potential leaking by SCOTUS clerks is careerism? Not ethical obligations to the justice you're working for or to the Supreme Court as an institution? What's wrong with this guy?!

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