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Bench Memos

NRO’s home for judicial news and analysis.

Why Supreme Court Clerks Don’t Leak



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I’ve been struck by how many people express amazement at the fact that leaks from the Supreme Court are extremely rare. In this New Republic essay, law professor Jack Goldsmith explains why the Supreme Court doesn’t leak and the national-security establishment does. Here’s part of his explanation about Supreme Court clerks:

The justices’ law clerks are sternly warned against leaking each summer by Chief Justice John Roberts, and they are intensely loyal to their bosses, all of whom despise breaches of confidence.

Law clerks also have a personal incentive to keep quiet. After one year at the Court, clerks can fetch hundreds of thousands of dollars in signing bonuses from law firms and are all but guaranteed [a] successful career. Leaking the Court’s decisions is one of the few ways to screw up these prospects. The leaker would have a hard time obtaining or keeping a license to practice law. And he or she would establish a reputation for irresponsible gabbing in a profession that places a super-high premium on the ability to keep confidences. No clerk wants to take these risks, especially since the chance of getting caught is relatively high.

I’ll add my impression that Supreme Court reporters would be much less likely than national-security reporters to publish leaks, as they could reasonably anticipate that the justices would find ways (e.g., limiting access) to make them regret that they had done so. Indeed, I would guess that many Supreme Court reporters would react negatively to any law clerk or other Court employee who even broached the topic of providing leaked information (at least about pending cases).



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