The Volokh Conspiracy

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

Jeff Rosen and Joan Biskupic Talk About Supreme Court Leaks

RBG told Rosen that AMK wrote the Bush v. Gore PC, and Biskupic said a Justice likely leaked Dobbs wrangling to WSJ.


Joan Biskupic was a guest on Jeff Rosen's podcast for the National Constitution Center. I transcribed it for everyone who could not commit an entire hour of their time. A few things to highlight.

First, Rosen said that after Bush v. Gore was decided, Justice Ginsburg called him, and said that Justice Kennedy wrote the per curiam opinion (4:37). Rosen was not troubled about this leak at all. The identity of a PC opinion should remain anonymous, and the Court should not disclose confidential information. But RBG proactively volunteered this information.

If I may flash back a moment to the Obamacare litigation. Some conservatives alleged that Rosen may have had a leak of information, and was using that information to influence Chief Justice Roberts. Rosen assured me in an interview for Unprecedented that he did not have any inside information about the case. At least following Bush v. Gore, Rosen got a private phone call from a Justice to divulge personal information. Moreover, Biskupic didn't even note this fact was out-of-the-ordinary. I cannot repeat enough that after Ginsburg's passing, Biskupic's inside information seems to have dried up.

Second, Biskupic said that the Wall Street Journal "has been the beneficiary of personal leaks from various justices" (34:19). She added that the Journal has taken advantage of that "access" in writing their editorials. She added, that "there is a very close connection between certain justices on the court, and the Wall Street Journal editorial page and through some intermediaries too." Biskupic referenced the WSJ editorial which claimed that the Chief was trying to flip Justice Kavanaugh in Dobbs. I was the first person to make this claim publicly. Biskupic also took that editorial "very seriously" because she knew "about the Journal's pipeline to the Court." On further questioning from Rosen, Biskupic said "Oh yes," a Justice leaked to the WSJ about Roberts's efforts (37:06). But Biskupic stressed that she did not think a Justice did not leak the actual opinion to the Journal (38:20). Indeed, she stated that she did not think it was a Justice's spouse (I wonder which one?) or a clerk.

Third, Biskupic revealed that she knew the Dobbs vote at conference (35:20). Specifically, "I had known what the vote had been." She added that Alito had five votes at conference, which I don't think she has publicly stated. Biskupic then explained that before the WSJ editorial, "I wasn't going to report on any of this because my usual M.O. is to reconstruct a case after we know what happened, because I know how much can change in June, at the very end." (I long suspect that Biskupic received information during the term, on the condition that she not disclose that information till the opinion was rendered.) But after the WSJ editorial, Biskupic considered writing about the Chief's efforts to pick off Kavanaugh or Barrett. Ultimately, she did not write on the issue, and the Politico story came out. Biskupic added, based on her "own reporting," that the "Chief continued to try to broker some deal at the middle." But the leak made the "Chief's efforts all but impossible."