Leaks go off like bombs at the Supreme Court
It was the day a bomb went off at the Supreme Court of the United States. Not a real bomb, of course, because that day would have been seared in your memory and not just in the memories of the Court’s insiders. It was the sort of bomb that stunned those insiders and changed the way they behaved that year.
It was the fall of 1979. On that day, Bob Woodward of Watergate fame and his co-author Scott Armstrong published “The Brethren.” The book was an anecdote-driven portrait of the Supreme Court during the years of Warren Burger’s service as Chief Justice, starting in 1969 and ending in 1976. Having arrived in Justice Byron White’s chambers a few months earlier, my co-clerks and I were definitively innocent but not unaffected.
Along with Justice White’s two secretaries, we formed a happy and productive band in our first few months on the job. We worked long hours and punctuated them with games of basketball in the afternoon in the “court above the Court,” often joined by Justice White himself who, though in his 60s, was still the best athlete in the building. A few decades earlier he had led the NFL in rushing and punting and he dominated our games. We were like a small and friendly law firm with one senior partner and four junior associates.
And then Bob Woodward’s bomb went off. Justice White instantly became distant and would remain so for several months. His secretaries would not make eye contact. And my co-clerks and I walked on eggshells. The unspoken vow of confidentiality had been violated. Trust had been breached. By a clerk? A Justice? No one knew.
It was at that moment that the paradoxical nature of the Supreme Court as at once powerful and vulnerable became evident to me. In the Federalist Papers, Alexander Hamilton had referred to the court as “the least dangerous branch.” There was nothing to compare to Congress’ vast array of powers that affect every corner of American life — powers to tax, regulate commerce, coin money and many more, not least of which is the power of the purse. Nor is there any counterpart to the president’s status as head of state over the vast federal government or as commander in chief.
Yet the court, as nine little law firms acting as one, is vested with the power of judicial review. It can interpret laws and determine whether they are consonant with the United States Constitution. Nine senior lawyers, their three dozen clerks, secretaries, and a small support staff in the clerk’s office, the library, the marshal’s office and a few other departments discharge this vital constitutional duty.
The justices deliberate privately after receiving public written submissions and hearing oral arguments in open session. They typically circulate multiple draft opinions for comment among the justices’ chambers. When decisions are reached, they provide their reasoning in public opinions. Dissenting justices supply their own public opinions. The process depends upon secrecy as the justices argue and refine their opinions, and that requires trust that no one who sees the drafts will leak them.
The justices’ reasoning is subjected to intense review in America’s law schools and in various publications. Justices live in a world of ideas, not opinion polls, and those ideas as expressed through precise English language opinions are fundamental to our constitutional republic.
In May of this year, a court insider deemed this time-tested process to be insufficient to meet his or her ideological goals and leaked a draft of the Dobbs opinion overruling Roe v. Wade. In doing so, he or she exposed the six justices in the majority to potential injury or death, as the inability of any to serve would eliminate the majority for the Court’s opinion. The culprit has not been identified, at least publicly.
Before and since the Dobbs leak, there have been allegations of leaks of a lesser nature. Such allegations in a partisan world are inevitable. Long time court observer Nina Totenberg noted of the Dobbs leak, however, that “there hasn’t been such a massive breach in modern history.” The leak “undermines everything the body stands for internally and institutionally, including its members’ trust in their law clerks and each other.”
We have become accustomed to leaks out of Capitol Hill, the White House and throughout the federal bureaucracy. As a nation, are we able to understand that the Supreme Court is different? After the publication of “The Brethren,” which sought to affect no pending decision, it took months for the Court to regain the sense of trust the justices need to do their work..
Until the Dobbs leaker, who sought to change the course of American history, is identified and dealt with under the law, I’m not sure the Court’s culture of trust can be restored. And the nation will suffer for the loss.