2 years ago
Last night at 8:32 p.m., POLITICO reporters Josh Gerstein and Alexander Ward punctured the court’s reputation as a leak-proof vessel by plastering the internet with a majority draft opinion written by Justice Samuel Alito that would reverse 1973’s Roe v. Wade decision.
The scoop jolted everybody, especially Supreme Court watchers like Slate’s Dahlia Lithwick. “We have never ever, ever seen a 98-page draft opinion,” she said on The Rachel Maddow Show, “or heard about deliberations who’s writing dissents.” The report put the Supreme Court’s sanctity at risk, wrote former Supreme Court reporter Richard Wolf. “Whatever the leaker’s motive, the result is very bad,” lamented Harvard Law Professor Noah Feldman. The secrecy breach indicates the court is in “disarray,” wroteNew York Times reporter Adam Liptak. “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff,” tweeted SCOTUSblog. “This leak is the gravest, most unforgivable sin.”
Although the Supreme Court has leaked before, as Gerstein noted in a sidebar and legal scholar Jonathan Peters tweeted in a thread, those were trickles compared to the torrent of an entire draft opinion, which POLITICO published in all its footnoted fullness. The disclosure is a big deal, big enough for Chief Justice John Roberts to hammer it as “an affront to the Court” and to order an “investigation into the source of the leak.”
How has the Supreme Court kept a relatively tight lid on its workings compared to the CIA, the NSA, the Pentagon, the FBI and other government appendages? For one thing, it’s smaller by multiple degrees. The fewer secrets you handle, the easier the job. But the court has long occupied a sacred and mythic place in the national consciousness, a place that the court itself has cultivated. Although the justices are political appointees, the court pretends to rise above politics. It conducts its work under a veil, and depends on the press to fetishize over the mysteries of the temple.
It derives its authority not from the people but from the cosmos, the court’s deifiers would have you believe. Hence the robes that rival Batman’s cape, the court’s ban on cameras, and the grand edifice from which it hands down its rulings. But this exalted view of the court, we must remind ourselves, is not a part of the natural order. It is of the court’s creation. Even the magnificent Vermont and Georgia marble palace the Supreme Court calls home is a relatively new addition to its image. Until 1936, the court did its business out of the Capitol, and none but the chief justice kept an office at the premises. Like office workers during the Covid lockdown, the other justices worked from home.
The late Justice Antonin Scalia became famous for making his clerks pledge silence about what they saw and heard. “I only want to say it once,” a Scalia clerk remembers him saying. “If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career.” (A clerk leaked the original Roe decision to Time magazine back in 1973. The article appeared on newsstand a few hours before the decision was released and the clerk almost lost his job.)
The POLITICO exclusive did the nation a service by ignoring the magic fairy dust that envelops the court to take an overdue look at the court’s decision-making process. The story was all the more warranted because if we had a viable Congress, it would have sorted out the legality of abortion by now. Instead, we’ve shunted to the Supreme Court the job of legislating what the abortion law should be. Viewed from that angle, the POLITICO scoop is less an intrusion into the Supreme Court’s sanctified domain than it is an investigation into a piece of evolving legislation. (As noted everywhere, the Alito draft is only a draft, and subject to change.)
Would Congress scream murder if one of its bills under consideration leaked to the press? Of course not. Its draft legislation gets aired all the time. So why the hubbub over the Alito draft? For one thing, it violates the court’s mania for secrecy, a mania that’s rational. The court has long feared that if the nation knew how its decisions come together — if its members dared to wear human faces, if it appeared as anything but a sacred tribunal — its decisions would carry less weight. It’s that easy to lose the mystique built up for centuries. The POLITICO piece reveals a court-decision-in-process as a purely political document that aligns five conservatives against the court’s liberals and, presumably the chief justice. That accurate portrayal might take decades for the court’s mythmakers to erase.
The court hasn’t had to worry about leaking opinions because it’s not in the interest of most of its beat reporters to pursue them. The last big examples of a damaging leak came in 1979, when ABC News correspondent Tim O’Brien accurately reported a Supreme Court ruling before it was released, and 1980, when Bob Woodward and Scott Armstrong published The Brethren, their book about the Supreme Court, and when clerks from the 2000 Bush v. Gore decision spilled to Vanity Fair.
After O’Brien published his story, Supreme Court beat reporters lined up to slam him — but from the coward’s redoubt of anonymity. “It was cowboy journalism,” said one. “It doesn’t get us anything. It doesn’t mean anything. And the possibilities for corruption are limitless,” said another. “There’ll be a real shakedown over the next couple of weeks,” fretted another Supreme Court beat reporter. Then-reigning establishmentarian James Reston horsewhipped O’Brien in his New York Times column, writing that the scoop “obviously serves no public interest and is a drop of poison in the whole democratic process.” Woodward and Armstrong got similar treatment. Reviewing (negatively) The Brethren in the New York Review of Books, former New York Times Supreme Court reporter Anthony Lewis acknowledged that Woodward and Armstrong had “done what no one else, journalist or scholar, has attempted in the nearly two hundred years of the Supreme Court’s existence: shown, however partially, its process at work — what happens before the published opinions.” But he also bemoaned the way the authors defiled the sanctuary. “Reading this book, one yearns for a sense of history, a degree of sophistication.”
Chief Justice Roberts issued a statement today bemoaning the “betrayal of the confidences of the the court” and “egregious breach of trust.” His histrionics were loud enough to carry all the way down Constitution Avenue to the Reflecting Pool, as he called for an investigation into the leak. Stephen Bates, a journalism professor and legal scholar, thought his complaint was a bit overboard. “The court does seem like a pretty frail institution if its legitimacy is crumbling because of one leak. CIA, FBI, NSA, etc. are supposed to operate in secrecy, but nobody screams about lost legitimacy when info gets out.” The court can survive just fine when its secrets are aired. Just look at the recent reporting of CNN’s Joan Biskupic, who has done spectacular work revealing how the Roberts court stuffs and cooks its legal sausage, and the Republic still stands.
It appears that no law was broken unless the leak was the product of a break-in or hack. “I’d be really surprised if it ended up with any kind of criminal charge,” University of Texas Law School Professor Stephen I. Vladeck told the Washington Post, speaking for the consensus.
The leak has obviously dinged the Supremes’ legal supremacy for the moment. They will recover. But the upside of the leak is grand. The public has gained a new awareness of where a court majority plans to take the nation after a half-century of legal abortion. Getting a two- or three-month-preview of that plan in a mid-term year straight from the horse’s pen amounts to a journalistic coup of the highest order. The government works to keep you in the dark. The press to shine the light. Heaven bless the press.
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Disclosure: Joan Biskupic is a friend. Don’t send Supreme Court drafts to Shafer.Politico@gmail.com. My email alerts are on hiatus for new subscribers. My Twitter feed fancies Superman’s cape. My RSS feed defies all precedents.
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