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Analysis | The Supreme Court Has a Long History of Failed Leak Probes

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Although the matter is reportedly still up in the air, I’m hoping the Supreme Court releases its report on the investigation of a draft opinion in last spring’s abortion case. But I doubt we’ll learn the identity of the leaker. We never do.

I consider the leak contemptible, but we mustn’t be starry eyed. The court has leaked for most of its existence. At times there have only been hints, such as the advance word alleged to have been passed to President Franklin Roosevelt before a key 1935 decision on private gold ownership. Other disclosures have been more detailed. Either way, the leaker almost always remains unpunished.

Let’s begin in 1854, when Representative Zedekiah Kidwell took to the House floor demanding an investigation of Justice Robert Cooper Grier for allegedly giving friends early notice of the outcome of a major case concerning rights on the Ohio River. Though the Judiciary Committee in due course cleared Grier of wrongdoing, some historians think it’s likely that he leaked. Perhaps he also spoke to the newspapers: On two of the five occasions when the case came before the justices, the New York Tribune published the outcome in advance.

Jump ahead two years to oral argument in Dred Scott v. Sandford. In 1856, immediately after the justices held their private discussion of the case, the gist of their positions appeared in the Tribune. “This was of course a gross breach of confidence,” wrote Justice John Catron a year later, “as the information could only come from a judge who was present.”

The irony is that Catron offered his condemnation in a letter to family friend James Buchanan, who had asked him whether Dred Scott would be decided before his March 1857 inauguration as president. By this time, at least three newspapers had reported accurately that the ruling would go against Scott, who claimed that once his owners took him to a state where slavery was illegal, he was free. The Tribune reported both the reasoning and that the court would be “nearly divided” — as indeed it was.

As for Catron, not long after venting his fury over the leaks, he told Buchanan when the decision would come down. The president-elect also heard from the previously-investigated Grier, who shared “in confidence” not only the “probable result” and the undergirding argument, but also the reasoning of the dissent. Buchanan, for his part, altered his inaugural address to take the leaked information into account.

Writing in the 1920s, the legal scholar Charles Warren conceded that Grier’s detailed letter to the president-elect “would not at the present time be regarded as one of strict propriety” but noted that justices of the era would commonly “impart in confidence to an intimate friend or relative the probable outcome of a pending case” as long as “the seal of secrecy was imposed.” History is silent on whether those regular disclosures affected the inner workings of the court. What we can say is that no official inquiry of the Dred Scott leaks ensued.

Over the next few decades, however, the court began to develop a strong anti-leak ethos, perhaps due in part to the public’s growing fear during the Gilded Age that government employees were busily enriching themselves and their families. Small wonder, then, that there was outrage on all sides in 1919, when a law clerk named Ashton Fox Embry disclosed the justices’ vote in a pending case to friends who proceeded to trade on the information. An investigation ensued. Embry resigned and was indicted, but the charges were later dismissed, evidently because there was some question as to whether he’d committed a crime.

From that day to this, leaks from the Supreme Court have regularly led to demands for investigation, but these have had little success. We do know the source of the 1973 leak to Time magazine of the Roe v. Wade decision, but not because of the investigation. We know because the culprit – a law clerk for Justice Lewis Powell — was so plagued by guilt that he turned himself in. Chief Justice Warren Burger must have been impressed by the young man’s remorse, because no punishment ensued.

What’s the right attitude toward leaks? Perhaps we should give the last word to Edward Douglass White, who was serving as chief justice at the time of the 1919 episode, where the law clerk and his friends exploited advance knowledge for money. In December of that year, White told a journalist that he’d been concerned since taking the bench about whether the court could keep its secrets: “In order to prevent a leak I wrote with my own hand the decision of the Supreme Court in the Standard Oil Case some years ago.” (The case to which White referred, which led to the company’s breakup, was decided in 1911.) White said that he’d waited until the day before the decision was announced to hand the draft to the printer and done all the proofreading himself.

He then added a remarkable claim: “There have been many rumors of leaks in the past, but I have investigated them and all but one were disproved.” The true one involved someone White called “a minor attaché of the court” who “was tempted and fell.” Apart from that episode, said White, “No man would be so degraded as to interfere with the processes of the nation’s highest court.” (He didn’t say which case that earlier breach of secrecy involved.)

But the story has a startling denouement. The leaker was forced — White does not say by whom — to confess his role to the US president. A few days later, in White’s telling, the unfortunate minor attaché “died under mysterious circumstances.” The chief justice didn’t seem too saddened by the outcome. “The business of the Supreme Court is a sacred thing,” he said.

I expect the report on the Dobbs leak to take the public relations-y position that the justices and their staffs still believe White’s dictum. And perhaps they do. Why then do I remain confident that the investigators haven’t found the leaker?

Because the news would have leaked.

More From Bloomberg Opinion:

• Abortion Case Leak Shows That the Supreme Court Is Broken: Noah Feldman

• The Supreme Court’s Leak Investigation Is Self-Destructive: Stephen L. Carter

• Have You Seen the Latest Polls? Now Forget Them. Here’s Why.: Jonathan Bernstein

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

More stories like this are available on bloomberg.com/opinion



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