The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

CJ Burger On Supreme Court Leaks in NY Times v. U.S.

"Yet I have little doubt as to the inherent power of the Court to protect the confidentiality of its internal operations by whatever judicial measures may be required."


I recently had occasion to re-read New York Times v. United States, the Pentagon Papers Case. Footnote 3 of Chief Justice Burger's dissenting opinion speaks to our present moment:

With respect to the question of inherent power of the Executive to classify papers, records, and documents as secret, or otherwise unavailable for public exposure, and to secure aid of the courts for enforcement, there may be an analogy with respect to this Court. No statute gives this Court express power to establish and enforce the utmost security measures for the secrecy of our deliberations and records. Yet I have little doubt as to the inherent power of the Court to protect the confidentiality of its internal operations by whatever judicial measures may be required.

I agree entirely. The ball is in Chief Justice Roberts's Court.

NEXT: A Rare Grant of Habeas, in a Defense-of-Others Case

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Courts have whatever inherent powers they claim for themselves.

    1. Until they don't.

      If Congress passed a law that all federal courts will have cameras then all federal court will have cameras.

      1. Cameras sure. Court can control when the can operate.

      2. Federal courts? Sure. They are Article I creatures of Congress.

        SCOTUS is another matter entirely.

    2. "...protect the confidentiality of its internal operations..."

      They are government workers. They are not handling military secrets. Every one of their utterances has been paid for by the tax payer. All the idiotic statements of these lawyer dumbasses needs to be livestreamed, including urinal conferences. If they do not like transparency, they should quit. Secret government is corrupt and failed government. We are sick of these elitist, Ivy indoctrinated, overly entitled scumbag crybabies.

      1. Why exclude military secrets? Have they not been paid for by the taxpayer?

        1. I know this is difficult. If you publicize military secrets, the enemies of the nation could get a hold of them. Is the taxpayer the enemy of the government in your book?

          1. " If you publicize military secrets, the enemies of the nation could get a hold of them."

            While a reasonable argument it is not an axiomatic justification for secrecy. Merely a competing argument against the principle of the citizenry's right to know. And there are corollaries in regards to SCOTUS deliberations.

            But apparently that is even more difficult.

    3. Court lack the "sword" of enforcement power from the executive, and the "purse" of the legislative branch, as per Hamilton's Federalist 78.

      They rely on others to implement their decisions, if they are not done by lower court or the market. They are well aware of this, and it generally keeps them in check.

      1. A summary contempt order, six months in jail for annoying a judge, would get the message across and be hard for the other branches to fight. No prosecutor is required to try the case, and no extra appropriation of money is required. Criminal contempt could lead us back to the question in the Arpaio contempt case: Can the President pardon a defendant for contempt of court? The courts let it happen without setting a binding precedent.

        1. See Ex parte Grossman, 267 U.S. 87 (1925).

  2. Dubious. Secrecy of proceedings is anathema to the 1st amendment and a free society. The Supreme Court is not a Star Chamber (more often an echo chamber).

    1. So you are saying that deliberations are part of the proceedings.

      Would this principle also apply to jury deliberations, or grand jury proceedings?

  3. Seems like the identity of the leaker is more newsworthy than that of the libs of tic-toc. Hopefully the Wapo will be all over it.

    1. That's *different* because *reasons*. Lots of reasons. Um. Anywho, Wapo no doubt has all their people covering more important stories, though they are probably really sad that Politico got the leak rather than Wapo.

      I'm pro-choice as it happens, but always have been Roe skeptical. But honestly much of the Supreme Court jurisprudence is opaque to non-lawyers, and a significant part of it is opaque/unpredictable to lawyers too it seems.

      1. The reason SCOTUS jurisprudence is opaque, at times at least, is because they don't have higher courts to overrule them. On issues that matter to them, Justices make the policy they want come first, and backwash the legal reasoning to get there.

        Moreover, they will do contortions, legally speaking, to protect certain case law at times, Roe being the primary culprit.

  4. What if it was leaked by a justice, likely if it was Sotomayor?

    1. I'd be surprised. While they have friction on decisions they usually seem a pretty collegial club from all I can tell.

      If a justice were somehow proved to have leaked it, I imagine it would be incredibly disruptive to their working relationships in the court.

      1. I wouldn't be surprised if it was leaked by one of the 4 nayes in the prospective decision. I don't think many understand what a holy grail abortion is to the left.

        But if it was a justice, I don't think that will ever come out until many years later in someone's memoirs, and it would certainly be disruptive.

        1. That's 'disaffected clinger reflexively blames the liberals' on your white, male, right-wing blog bingo cards, folks.

        2. " I don't think many understand what a holy grail abortion is to the left."

          I am genuinely curious- you do understand what projection is, right? There is certainly a divide between the "right" and the "left" on many issues, including abortion, but I'm fairly certain that very few (for many reasons) would ever refer to that as being more important to the left than the right.

          Now, if Roe v. Wade and its progeny are overturned, that impetus might shift. But that's a bizarre thing to say.

          1. I understand projection as a psychological phenomenon, but commenting on issue importance to one side of the aisle is hardly engaging in it. You could say that for the right, the issue is guns.
            Many on the left can't, for the life of them, understand why guns matter so much to Joe Sixpack conservative.

            Abortion politics are at the heart of our nation's political divide. The issue cuts across everything, from the size of government, federalism, to the politics of what is/isn't a right, to political primaries and purity tests, to our inability to compromise on much of anything these days. It is there in virtually everything, either literally, or its specter hovers close-by and it influences decisions/policy by proxy.

            1. "Abortion politics are at the heart of our nation's political divide. "
              Unfortunately we see that at every turn of staffing the federal courts. It is certainly more divisive than even immigration.

        3. Hmm, it seems to me that both sides are quite passionate about Roe. Why do you think that aspect favors the left?

          1. Equally passionate? Only (perhaps) when looking at the politics of the electorate, that is, the people/voters. When you look at the politics of elected officials, GOP actions on prolife issues has never been as enthusiastic as Democrat politicians. Like most culture war issues, the GOP establishment class would like to surrender and move on, but party activists won't let them, and they resent it when true believers get into power and have to be accommodated.

            Ask yourself, at its heart, what issue Roe, and its precursors of Griswold, and its progeny of Lawrence and Obergerfel, they deal with, and you have your other answer.

            1. Anecdotal to be sure, but it is my impression that a much larger share of the population is passionately in favor of abortion rights than is the share passionately opposed.

              1. Hmm, true in my circle certainly which perhaps colors my thinking. But there are lots of folks (evangelicals and others) who mostly aren't in my circle and care about it pretty strongly.

              2. Lot's of polling on the issue, some of it of dubious value, as it depends on how you ask the question. Here is a decent one that is non-leading.

                "....than half of U.S. adults take a non-absolutist position, saying that in most – but not all – cases, abortion should be legal (34%) or illegal (26%). Fewer take the position that in all cases abortion should be either legal (25%) or illegal (13%)."

              3. For an illustration of this, count the number of participants who come to the next "Women's March for Choice" (or whatever it will be called) that I am sure is being planned right now, vs the largest turnout for any March for Life.

                Part of this, however, is that the Left is more adept at turning out crowds on this issue than the Right. Further, and this is a big generalization, they type of person that is most vehemently pro choice is likelier to protest publicly than is his/her counterpart on the pro-life side.

            2. mad_kalak: "Like most culture war issues, the GOP establishment class would like to surrender and move on, but party activists won't let them, and they resent it when true believers get into power and have to be accommodated."

              ^This is exactly, 100% correct.

      2. I suspect that, even if a justice wanted to leak, they would still accomplish it through an underling.

    2. IMHO, a Justice is more likely than a clerk given the risk to the clerk's career. My money is on the ones nearing retirement, as they're probably less concerned about impeachment (plus, $$$ from the inevitable Netflix documentary).

      But, to be complete, we shouldn't rule out: (i) CIA/FBI/NSA (who've shown themselves willing to spy on a sitting President); and (ii) hackers.

      1. and 3) the IT staff.

      2. Why couldn't it be Breyer? He's *already* retired as of the end of the current session and his replacement named and confirmed. What punishment could be levied that would mean anything in that situation?

  5. Ugh. Seriously, four (FOUR!) posts on this BEFORE he read the opinion. Then a post after he read the opinion. Then a post first thing this morning. Not to mention the usual Blackmanism's of (1) Trying to Make Fetch Happen (Leakgate???) and (2) Somehow blaming Roberts and calling for his resignation (???).

    Now, that said, I want to relate my own personal story. A long, long time ago, I remember participating in a lively debate in the VC about the ACA. At the time, a lot of smart people had a lot of smart opinions about the topic. Weirdly, though, the VC's posters began to post a whole bunch of very targeted articles before the release of the opinion. I just assumed they were enthusiastic (it was a big deal!). Some people in the threads began to raise weird conspiracy theories- maybe the VC posters had been tipped off? Maybe they were using their platform to try and influence the clerks (if not the justices) who might read this, or other people who might have some influence.

    And I said, quite vociferously ... NO. That doesn't happen. SCOTUS DON'T LEAK. I defended the integrity of the people posting- not only does SCOTUS not leak, of course they would say something, right? I mean ... that would have been a massive deal. Someone leaking out information in order to try and influence the deliberations? No way (NO WAY) that could be kept quiet.

    Of course, I had a lot of egg on my face after that. Because I believed in institutional and personal integrity. And while I raised the issue repeatedly, because LEAKS FROM SCOTUS ARE A MASSIVE DEAL, not a single VC contributor (other than Orin Kerr) took the issue seriously. Again, there was a person deliberately leaking information in an effort to sway deliberations on SCOTUS, and people were acting on that information, and not telling us common people ... and no one bothered to follow up on it.

    So it is unsurprising that this has happened again. You allow a norm to be violated, it's going to keep happening and it's going to get worse. Now, to be clear- I hope that the person who did this is found out, and they suffer serious and permanent professional ramifications. No matter how important the issue, you don't leak deliberations. Period. If they are a clerk, they should be barred from the practice of law - period. But you know what? I think it would be helpful to re-examine what happened in 2012, too. What happened with that person? Do we just stuff these things down the memory hole when it's convenient?

    1. Very good points. Who, in your opinion, will benefit from this particular leak?

      1. Hard to say. I mean, the obvious first impression would be someone who is against this opinion. But ... while I can understand someone who is pro-choice being sufficiently outraged to do that, I don't see it as being helpful in terms of the actual opinion that will be released.

        On the other hand, this is a first draft that is being circulated; it's also possible that one of the justices that is joining Alito is having second thoughts and maybe wants to water it down to something more moderate, and someone who is staunchly anti-abortion leaked this to try and get that vote "locked-in."

        Honestly, I could see either. That's the beauty of this- I'm sure people on both sides are stomping that "the other guys" did it, but I'm not so sure. A lot really depends not on what is written here, but what the dynamics are now that made someone release it.

        1. As you say, it could be a pro-choice person trying to put pressure on the Alito majority. It could be a pro-life person trying to lock another justice into the Alito majority. There's a third theoretical possibility, which is that someone in a possible Roberts camp leaked this to try to pressure someone in the Alito majority to pull back from the brink and issue a narrower incremental decision.

          (This is all based on guesses about who holds what positions on this case, of course.)

          1. When the investigation of this leak (mentioned by Chief Justice Roberts) of a draft opinion delighting conservatives precipitates the inevitable investigation of a leak jeered by conservatives (concerning Obamacare), I hope the investigators review with care the email, telephone, location, proximity, and other records of every Volokh Conspirator during the period in which this white, male, conservative blog exhibited a remarkable familiarity with Court deliberations preceding publication of a decision.

            Knowledge Is Good
            -- Emil Faber, founder

            Don't say words you're gonna regret
            -- Alan Parsons

            The culture war is not quite over but has been settled
            -- Common knowledge

            1. "The culture war is not quite over but has been settled
              -- Common knowledge"


              One side frequently thinks that the war is won when it is just getting started.

              Culture wars never end.

              1. Someone, someday, is likely to become competitive with the liberal-libertarian mainstream in the American culture war.

                But it won't be the current conservatives. They're walking corpses. Dinosaurs. Last gasps.

    2. "norms"

      That's worthy of a cynical chuckle. We have presidents spied on by traitors in his own government and leaks galore historically, what makes SCOTUS special? Nothing.

      1. I am unsurprised that you do not care about norms.

        1. I'm surprised you maintain that fiction as well. It is a comfortable illusion to maintain, that there are these political "norms" that are supposed to be maintained to help, if nothing else, maintain a functioning government.

          The problem with this illusion, though, should be obvious. It's a control tactic, like any other.

          1. Our republic still runs on norms, chief.

            1. No, it doesn't. It runs on power. I would think you'd understand this, which is why there are....maybe you've heard this phrase before, "separation of powers" in this republic.

              1. Well, if that's the case, then it will stop running.

                Integrity is how you act when people aren't looking. Norms are what keep people and institutions doing the right thing, even when they could do the wrong thing.

                Integrity and norms are far more important to a functioning society than any words on a paper, and certainly more important than depending on power to check itself.

                That there are certain people that delight in the loss of integrity and norms is unsurprising.

                1. You may have noticed that several times in our nation's history it has, or almost has, stopped running. It's not doing so well right now. Dig into why, and you discover it's always about forced compliance by one group upon another.

                  I just come from a long line of folks like Diogenes the Cynic, shining my lanterns on false piety that we ever had these "norms".
                  Before long, you're going to start revering the Founding Fathers if you keep it up.

                  Let me throw you a bone. Norms and culture are what makes every day life work. Politics, which is defined as "who gets what" is, has always has been about power. It's like your advocating for a kinder, gentler version of the divine right of kings by appealing to norms.

                  The reason why SCOTUS seemed (mostly) exempt from leaks was because it's a tighter circle, that's all.

                  1. Politics, which is defined as "who gets what"

                    That's economics.

                    It's like your advocating for a kinder, gentler version of the divine right of kings by appealing to norms.
                    Haha, what the fuck?

                    why SCOTUS seemed (mostly) exempt from leaks was because it's a tighter circle, that's all.
                    You do know you just invoked norms, right?

                    I have no idea how you think humans or politics work, but in neither discipline is everything, or most things, written down.

        2. All these bigoted, obsolete right-wingers care about any more is a few, fleeting moments of owning the libs. Losing the culture war has left them as little more than a festering, disaffected pile of scars, bruises, resentment, conspiracy theories, superstition, bigotry, cowboy hats, and ridiculous trucks.

          1. Wow, you are a quite a Christian, Reverend.

            1. Do you sense Christians are partial to silly cowboy hates and posers driving 4x4s that never leave payement?

              Or . . . are you accusing me of molesting children?

    3. If you expect this blog to acknowledge this point -- less alone address it forthrightly -- you should also expect to be disappointed.

  6. As is customary, Prof. Blackman loves (and relies on) dissents and can't restrain his result-driven authoritarianism.

    I see why he was invited to join the Conspiracy.

  7. Yet I have little doubt as to the inherent power of the Court to protect the confidentiality of its internal operations by whatever judicial measures may be required.

    I assume that Burger CJ did not mean to imply that the first amendment somehow doesn't apply to the Supreme Court?

  8. Burger's dissent is interesting.

    But on that subject, is this relevant?

    18 U.S. Code § 401 - Power of court

    A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—

    (1)Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

    (2)Misbehavior of any of its officers in their official transactions;

    (3)Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

  9. and here I sit doubting anything will be done unless they demonstrate it was a judge considered conservative or one of their clerks. if it is from the other side the press and congress will line up to support them at every turn.

    1. Of course.

      1. Grievance-consumed, paranoid, disaffected clingers are among my favorite culture war casualties.

  10. What would be Breyer's motive? Or for that matter, any other justice?

    1. Create a firestorm of public protest to get one or more of the justices on the majority to defect or at least adjust the decision.

      1. Was that also the motivation underlying the Obamacare case leak?

Please to post comments