Why Hasn't SCOTUS Sprung a Leak Yet?

In a town newly obsessed with unauthorized leaks — and with a long, proud history of sanctioned ones — a single branch of government seems remarkably watertight. As we wait for the Supreme Court's big decisions, here's a look at why we haven't heard what they are, exactly.

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In a town newly obsessed with unauthorized leaks — and with a long, proud history of sanctioned ones — a single branch of government seems remarkably watertight. For multiple weeks, reporters and activists have been desperate to learn of the Supreme Court's decisions on gay marriage, affirmative action, and the Voting Rights Act, with the only revelation on any of them coming this morning, from the Court itself. The remarkable secrecy is in part a function of the body's history. And it's in part a function of its size.

There are various kinds of leaks. Out of pure, frustrated self-interest, we're looking here at a leak which would reveal the Court's decision before it is announced — perhaps the most valuable genre thereof.

What wouldn't count, then, is the leak that happened last year. After a CBS report detailing John Roberts' switch from opposing to supporting the Affordable Care Act before the Court's blockbuster decision, Slate published a wonderful history of those times when the Court's silence was inadvertently broken. And that history can still help answer our question. As Slate outlines, there are three points from which leaks have, in the past, sprung — the same three points which still exist today.

In 1979, for example, Chief Justice Warren Burger had two staff members fired after ABC News prematurely reported on the majority opinion writers for two key decisions. One of them was a printer working for the Government Printing Office. The other was the Court's Reporter of Decisions.

The Reporter of Decisions holds a unique job at the Court. The current Reporter is Christine Fallon, who assumed that role in 2011 after her predecessor retired. For nearly a quarter century, however, she's done the work of the position: summarizing the majority opinion and dissent for the Court's decisions for the prologue to the complete written statements from the Justices. SCOTUSBlog explained her role in a blog post celebrating Fallon last year.

Before any argued decision by the Court is released to the public and the press, Ms. Fallon has performed the exquisitely delicate task of writing a summary of the ruling, and doing it in a way that (1) gets it right, (2) does not leave out anything really critical, and (3), most important, is acceptable to the author whose flowing (or plodding) prose she has turned into plain English.

In other words, Fallon sees the decisions before they are public. The size of her staff isn't clear — a Court representative declined to provide its exact size when asked by The Atlantic Wire this afternoon — but it's clearly quite a small group.

Incidentally, the printing for the day of the announcement is also handled internally, by the Court's Publications Unit. As explained at the Court's website, it's done on the premises, meaning that no piece of paper containing the decisions ever leaves the Supreme Court building prior to their announcement.

The bench opinion pamphlet for each case consists of the majority or plurality opinion, any concurring or dissenting opinions written by the Justices, and a prefatory syllabus prepared by the Reporter's Office that summarizes the decision. Bench opinions are printed at the Court, generally in 5 ½" x 8 ½" self-cover pamphlets.

It's not the Reporter that hands out the documents when the decisions are announced. That task falls to the public information team, according to The New York Times. This is another possible leak point — but also the last such point in the process.

The next source Slate noted was the group of clerks that work for the Justices, a group generally tasked with much of the legwork for writing and researching the opinions. And they've leaked: During the 1960s, a clerk told the press about one Justice's support of the Vietnam War.

The clerks present a comparatively large pool of possible sources. Each Justice, including the Chief Justice, usually takes on four annually. The Wikipedia page of past and current clerks is awe-inspiring in its length, although its only the last four on each list that matters. Of course, these 36 clerks didn't achieve their positions out of a half-hearted interest in keeping busy during the year. For any of them to risk a position that is a springboard to a lucrative or important career — including Supreme Court Justice — in order to curry favor with the press seems fairly unlikely. (If any do, please see the email at the bottom of this article.)

And then there's the ultimate source: the nine Justices themselves. The Justices are political creatures, of course, subject to both national and internal politics, both of which might inspire a desire to set the record straight on a decision. But there's little value to leaking a decision made by the Court before it happens; there is, however, often value in telling reporters how their colleagues came to those decisions, if it suits a competitor's political need. (Or perhaps their ego, if you were watching Justice Alito today.) The Slate article notes one recent instance in which a Justice may have tipped off the press about details behind a decision, but not, it seems, the decision itself. (Which in that case was Roe v. Wade.)

The simple way to explain why the Supreme Court has been so free of leak is this: It's a small group of ambitious people working together in one building. But then, the odds of any government employee leaking information, small group or not, is low. Edward Snowden was one of an estimated 5 million people with security clearance, but the only one to release scores of documents to the press. In other words, if the Supreme Court got an additional 4,999,964 clerks (and, presumably, 1,294,991 Justices for them to serve), it, too, might see a leak. Until that unlikely expansion, the press and all the rest will just have to wait until 10 a.m. some weekday morning, just like everyone else.

Photo: A trio of Justices at the State of the Union address. (Reuters)

This article is from the archive of our partner The Wire.