Supreme Court Leaks Undermine Institutional Culture, Experts Warn

Supreme Court Leaks Spark Debate Over Institutional Integrity

Will Baude of Divided Argument has commented on The New York Times release of internal Supreme Court memos regarding a potential stay of the Obama EPA's Clean Power Plan. The analysis largely aligns with Baude's perspective, particularly on one critical point: the leaks themselves represent the most significant scandal.

Leaks Threaten Judicial Confidentiality and Deliberation

Baude argues that the unauthorized disclosure of confidential Supreme Court documents is becoming increasingly common and poses serious risks to the Court's institutional culture. He states:

The biggest scandal here is in fact the leaks themselves. Supreme Court leaks like these — including copies of confidential work product — are becoming more common. In my view, this is a bad thing. It will damage the institutional culture of the Court and do little good.

While acknowledging the investigative prowess of NYT reporter Jodi Kantor, Baude cautions that the long-term consequences of such leaks may outweigh their short-term benefits. The exposure of internal deliberations could erode trust and transparency within the Court, ultimately undermining its decision-making processes.

Impact on Judicial Deliberation and Decision-Making

The release of these memos signals to justices that their preliminary thoughts and internal communications may not remain confidential. This uncertainty could discourage justices from committing their initial reasoning to paper, a practice essential for thorough deliberation. Baude explains:

A memo to the other justices may end up in the newspaper (and, as Baude notes, be presented as more scandalous than the content justifies). This cannot help but make justices less likely to put their thoughts on paper.

The concern extends beyond the justices themselves. Law clerks, who often handle sensitive documents, may be less invested in maintaining the Court's institutional culture of confidentiality. Josh Blackman previously reported in Reason that some clerks retain "still-secret older case files," suggesting a potential source for the leaks.

As justices grow wary of leaks, they may shift toward less formal modes of communication or reduce the scope of their internal discussions. This shift could lead to:

• Reduced deliberation among justices;
• Greater reliance on pre-existing jurisprudential instincts and ideological priors;
• More predictable, ideologically divided decisions.

Unintended Consequences of Leaks

While those responsible for the leaks may intend to influence the Court's direction, Baude warns that the outcome could be counterproductive. He suggests that leaks might contribute to a Court that is even less aligned with the leakers' preferences, as justices retreat into narrower, more ideologically rigid decision-making processes.

The post "The Biggest Scandal Here Is In Fact the Leaks Themselves" originally appeared on Reason.com.