The Biggest Scandal Here Is In Fact the Leaks Themselves

Over at Divided Argument, Will Baude comments on the NYT release of internal Supreme Court memos concerning whether to stay the Obama EPA’s Clean Power Plan. I largely concur with Baude’s assessment.

One point he makes is worth expanding upon. As I noted Saturday, the documents largely confirm what educated observers already suspected about the Court’s decision.  Baude writes:

the biggest scandal here is in fact the leaks themselves. Supreme Court leaks like these — including copies of confidential work product — are becoming more common. In my view, this is a bad thing. It will damage the institutional culture of the Court and do little good. But Jodi Kantor is a super-powered investigative reporter, determined to break through some of the Court’s norms of confidentiality, and I would bet on her succeeding. If so, we will have to become skilled at figuring out what these documents really tell us, and what they do not.

As Baude notes, leaks of internal documents will affect the Court’s institutional culture, and perhaps in ways that those who cheer the leaks might not like.

The fact of the leak indicates to the justices that what they put down on paper and share with each other may not remain confidential. A memo to the other justices may end up in the newspaper (and, as Baude notes, be presented as more scandalous than the content justifies). This cannot help but make justices less likely to put their thoughts on paper–paper that will be seen (and potentially retained) not just by their colleagues, but by law clerks who may be less concerned about maintaining the sort of institutional culture necessary for careful deliberation. [Note in this regard that, as Josh Blackman flagged here, the NYT‘s Jodi Kantor previously reported that some clerks apparently retain “still-secret older case files,” which suggests a possible source for the most recent leak.]

As the justices become increasingly concerned that committing their preliminary thoughts to paper creates the potential for leaks, they are likely to become less willing to commit their thoughts to paper. They may substitute less formal modes of communication, or share thoughts less widely. In short, they are likely to deliberate less amongst themselves and, as a consequence, more likely to rely more upon their jurisprudential instincts and priors in making decisions. If I am right, this could have the inevitable (and perhaps undesirable) effect of more decisions in which the justices divide along predictable ideological lines. Thus insofar as the source(s) of these leaks do not like the Court’s orientation, their leaks might help produce a Court even less to their liking.