All nine justices grow increasingly frustrated by leaks, even as confidential information continues to surface nonetheless.
Over the last decade or so, I have written quite a bit about leaks from the Supreme Court. There was a period when Joan Biskupic seemed to have the inside track. Barrett, in her books, suggested she had private conversations with the Justices. I’ve heard that Chief Justice Roberts, in particular, felt betrayed when Biskupic published material that was supposed to remain off the record. Such is the way things go. Yet after Justice Ginsburg’s passing, Biskupic’s inside information largely dried up. Of course, Josh Gerstein at Politico disclosed the Dobbs leak, but that was a single incident. Gerstein has not published additional internal details since. More recently, Jodi Kantor of the New York Times has been publishing a steady stream of Court-related information.
No matter how you look at it, the leaks problem persists.
Justices Kagan and Barrett spoke at length about leaks during their congressional testimony (which I am just finishing up).
Kagan addressed the House Committee:
We can’t conduct our business, we can’t engage in confidential communication, which is essential to functioning. The most effective practice is to be completely open with one another about our views, but if you fear those views will end up on the front page, you pull back and you avoid the kinds of conversations that I believe are crucial for the Court to do excellent work. This has frustrated all of us, and we are continuing to work on solutions.
Kagan offered similar remarks to the Senate Committee:
Leaks have a dramatic impact on how we operate internally, or at least the potential to do so. The way we relate to each other relies heavily on honest communication among the nine. If the nine of us lose trust in one another and in those who serve us, the candid conversations that our work depends on will not occur, or they will be seriously hindered. It’s a problem that has frustrated every single justice because of security concerns, but also because it disrupts the very method by which a court should function and the deliberations that form the backbone of our work.
Justice Barrett offered a glimpse into the Court’s new nondisclosure agreements.
We’re doing what we can. We’ve installed protocols to better track who can access documents and who has interacted with them, including printed copies. We have always required staff to sign a confidentiality agreement, but we have recently begun requiring them to sign a nondisclosure agreement, with carveouts for whistleblowers and similar protections that go beyond what federal law requires. Our aim is to reinforce the need for confidentiality through these NDAs, providing an extra check on employees who might share information inappropriately or illegally.
The Supreme Court has never publicly acknowledged that clerks are required to sign NDAs. We learned of this through, yes, a leak to the New York Times. Indeed, the Court offered no comment to the Times:
A spokeswoman for the court declined to comment about the nondisclosure agreements. She also did not respond to a question about whether the justices have been asked to sign the contracts.
The people who described the agreements spoke on the condition of anonymity because they were not authorized to discuss court matters publicly.
Barrett has effectively acknowledged the leak, perhaps without even realizing it. I wonder whether anyone at the Court caught that hint.
Over time, I had suggested that Justice Kagan at least bordered on being connected to some Supreme Court leaks. I now take her congressional testimony as truthful, so I’ll concede that I was mistaken. And I’ll accept her assertion that none of her eight colleagues would leak information. If that is the case, how can the leaks be explained? Are there simply rogue law clerks acting beyond their superiors’ knowledge? Or is there a form of tacit approval that stops short of direct consent?
In any event, I’m convinced that Kagan and Barrett have now drawn a firm line on leaks. Any clerk from their chambers would be misguided to think their boss secretly endorses leaking.
