Journalistic and Legal Ethics for SCOTUS Reporters

Steve Sachs writes that Adam Liptak, a member of the New York Bar, may have transgressed certain rules of professional conduct by publicizing the leaked SCOTUS documents. Steve raises the broader concern of how journalistic ethics interact with legal ethics. A lawyer-journalist can easily resolve this tension by resigning from the bar, but there are professional reasons for maintaining that license.

The Supreme Court publishes a list of about two dozen “Hard Pass Holders.” A good number of them are attorneys.

One of those names is none other than Joan Biskupic, who has been an inactive member of the D.C. bar since 1997. (Inactive members are still subject to all the rules.) Joan made her career on publishing leaked Supreme Court documents.

Perhaps Liptak and Biskupic and others have squared their duties to journalism and their duties as officers of the Court. That would be worth explaining.

There is a related issue. Some reporters have taken to publishing “anonymous” quotations from judges. Many of those statements, I think, can be seen as bringing the judiciary into disrepute. Why else would the judges make the statements anonymously, unless they feared some consequence for speaking. Journalists who are not attorneys have nothing to fear from state bars, but they should be fully aware that distributing surveys may be inducing judges to violate their own legal duties.

So much effort is focused on scrutinizing the ethics of the Supreme Court. Similar efforts should focus on scrutinizing the ethics of the media. I’ve found as a general rule that reporters far prefer asking questions to answering them. Who will watch the watchmen?