• September 1, 2021

“I do not want it?” – Reason.com

In recent years, CNN reporter Joan Biskupic has received leaks from the Supreme Court. It is not clear if you are talking to magistrates, legal clerks, or people who know magistrates or legal clerks. From these leaks, Joan wrote about private conferences, internal deliberations, shifts in authorship of opinion, and even personal dynamics among the judges. These leaks are intriguing, but ultimately, dangerous for court.

I don’t blame Biskupic. She is a committed reporter who does her job. It is not your role to preserve the Court. Your job is to inform. And he does it better than anyone else.

Shortly after the October 2020 period concluded, I began the countdown to the next Biskupic leaks. But this year it was different. His current term report lacked inside information. I speculated that Judge Ginsburg’s absence may have dried up his sources.

Now here we are in early September. The dossier in the shadow of the Supreme Court is in overdrive. And people clamor for inside information about the Court’s deliberations. But Biskupic has not released any inside information.

Mike sacks tweeted, “I am honestly amazed that liberal clerks or even judges have not begun to filter deliberations on important cases, given how desperate their cause is now.” He added: “If the current generation of liberal SCOTUS secretaries is still too risky to filter what’s happening to us around here, then the judges lurking here are at least going to tell @JoanBiskupic, like they always do.”

Joan answered, “I do not want it?”

I was surprised by this tweet. I don’t recall ever seeing a Supreme Court reporter make a public appeal to the justices to leak information. Usually these pleas are made through secondary channels. But Joan has sent the Bat Signal for help. The leakage of private deliberations violates the canons of judicial ethics. Of course, Supreme Court justices are not bound by the code of judicial conduct, but they generally pretend to follow the rules. Here, Joan publicly asks the judges to violate her code of conduct.

The first analogy that came to mind was when Trump asked Russia to release Hillary’s emails. Trump later claimed that he was jokes. Joan may also say that she was being sarcastic. Never mind. The damage was already done.

Ultimately, this arrogant approach to leaks can backfire. If Joan writes anything about internal deliberations, the presumption will be that her Bat Signal tweet shook the pot. The judges, and those in their orbit, who might have been tempted to feed Joan, would look elsewhere.

Yesterday I wrote about Joan’s podcast with SCOTUSBlog. The real reason why I transcribed the session was to see if Joan would talk about her leaks. And he did (starting at 20:20):

Now like me, while I am working on these books. And while working on the Chief’s book, he was also trying to add something for readers about the behind-the-scenes dynamics that would inform the current court. And I think I think I first tried it when I was writing the book on Justice Sotomayor. The book I wrote about Judge Sotomayor, which follows Antonin Scalia’s book, was not a biography, like the O’Connor and Scalia books, where it was much more of a political history. But because while I was doing that, I got insider information on some, you know, some events in court and they exchanged vows.. For example, what happened behind the scenes when judges first took up the University of Texas at Austin case that had been brought by Abigail Fisher, the affirmative action case, That gave me the pleasure of discovering more of what was happening behind the scenes.. So I found that I was spinning around a bit to try and get more up-to-date information on what was going on, even though I was looking back at people’s lives. And that’s why when I did The Chief, the book about the Chief, it was a real pleasure to go to Johnstown, Pennsylvania, where his parents met and grew up and, you know, go to the library there to study ethnic history. of his family. But it was also quite difficult to find out, for example, what had actually happened in the first Affordable Care Act. case where he, you know, we knew that he had changed his vote on the individual insurance mandate, because of the report that Jan Crawford had made. But I found out that along the way, he also changed his vote on the Medicaid portion. And I got interested in that and wanted to get that from various sources in court. And that has become a good challenge. And that kind of subtext from my reports is not, you know, not the main thing that I want people to take from these books, because I want them to be, you know, character studies. But it has been a small advantage. And it has helped draw more attention to reporting, because people, people, know almost nothing about what goes on behind the scenes. The court carefully guards much of this. And it has been, I felt lucky to have been able to find out some things.

I hope that the judges and their secretaries will even exercise greater than discipline to avoid new leaks. That Joan continues to wish.

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