Bench Memos

Law & the Courts

Who Leaked to Joan Biskupic?

CNN’s Joan Biskupic has published the first two articles in a four-part series on the Supreme Court’s just-completed term, and those articles are replete with detailed confidential information that has been leaked to her. Indeed, Biskupic appears to signal that at least two of her sources are Supreme Court justices:

In their private conference room in October with only the nine and no law clerks, the justices debated whether and how to provide the same anti-bias coverage for 1 million transgender workers, according to multiple sources familiar with the inner workings of the court.

Who is doing this extraordinary leaking? And what will the Chief do to put a stop to it?

Perhaps none of the justices is culpable, and the leaking has instead been done by law clerks. On that theory, the account in the passage I quote above would be secondhand—relayed by the justices to their clerks. I’m skeptical, though, that any clerk would take the career-ending risk of leaking to Biskupic, nor is it evident why any clerk would have an incentive to do so.

On the matter of incentives, as one recent clerk (not from last term) wrote to me, Biskupic’s first article “was so flattering to the Chief by the Chief’s own criteria that it had to be someone with a strong incentive to please him.” Here are some excerpts from that article that illustrate the clerk’s point:

Chief Justice John Roberts did not flinch.

Roberts exerted unprecedented control over cases and the court’s internal operations.

The chief justice …, in a decision for the ages, rejected President Donald Trump’s extensive claims of “temporary presidential immunity.”

As he closed out his 15th term in the center chair, Roberts demonstrated a new ability to calibrate his views and build coalitions.

Roberts is only 65 and could serve 20 more years. Yet this session and his action on some of the Trump administration’s most visible policy moves will go a long way toward defining his legacy.

This sort of flattery of the Chief would seem to focus attention on the liberal justices. We know that Justice Ginsburg has been indiscreet with Biskupic before—in an on-the-record interview—and she has demonstrated in recent years a remarkable tendency to speak injudiciously on all sorts of matters, so she must surely be a prime suspect. But the level of detail provided Biskupic, as well as Biskupic’s own reference to “multiple sources,” makes me think that at least one of the other liberal justices might also have been a major source.

As for the Chief’s conservative colleagues: With the partial exception of Justice Gorsuch—whose leading role in Bostock gets flattering attention from Biskupic in the second article—I see no reason why any of them would speak to Biskupic. I also see nothing that suggests that any of them (including Gorsuch) did do so. [Addendum/modification (7/30): If Biskupic came to one of these justices with a leaked account about him that was inaccurate or misleading, then I could see that he might respond to her to correct or clarify.]

Might the Chief himself be one of Biskupic’s sources? That strikes me as highly unlikely. However flattering he might find this particular set of leaks, he has a strong institutional interest in discouraging leaks.

(One sidenote: Contrary to my speculation, Biskupic reports that the Chief assigned Gorsuch the majority opinion in Bostock at the outset.)

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