Every report I see on the healthcare case currently before the court says that while a vote will be taken this week, the decision will take until June to publish. As I understand the process, the opinions will be drafted and redrafted with the aid of something like a couple dozen staffers.
That seems like an awfully good job of keeping an awfully important story. Any insights on why the Supreme Court is so good at keeping things under wraps?
SCOTUS clerking looks really good on a young lawyer’s CV. Being known as the clerk that leaked an important decision to the press, not so much.
My WAG: one essential part of a lawyer’s job is keeping secrets, especially those relating to a client. If clients can’t trust you to keep their secrets, you won’t get much work, and you may also be in trouble for ethics violations.
Both of the above: (1) being a law clerk to a U.S. Supreme Court Justice is the choicest, most primo job for a new lawyer in the whole country, and (2) federal judicial law clerks, SCOTUS or otherwise, cannot ethically comment on a case or break the confidentialty that the judge or justice entrusts him or her with. From the Law Clerk Handbook:
In short, it’s a great way to destroy one of the most promising careers in the world, and a violation of the trust the judge or justice placed in you when he picked you over hundreds (in the case of SCOTUS maybe thousands) of other applicants.
This still doesn’t seem a complete explanation to me: there is more than one clerk, and it’s pretty easy to release information anonymously nowadays. And ethics sure don’t stop anyone else from leaking stuff
It is a very small group when compared to the thousands that work on the Hill or for the Whitehouse. Given it’s small size, it would be fairly easy to trace a leak back to a person.
The consequences for the leaker would be catastrophic and career ending. There are huge disincentives to leak and few incentives to do so.
It obviously stops people working for the Supreme Court. As much as we like to demonize lawyers, their whole profession is based around keeping secrets. There is a strict set of rules and ethics they follow because without them the whole system wouldn’t work. SCOTUS is good at preventing leaks because it’s made up of professionals who consider the work they do to be sacrosanct.
A similar situation exists in the medical profession. When someone famous dies or is admitted to the hospital, it’s very rare to hear a “leak” about their condition or the facts surrounding their death coming from the medical staff. Even though there are probably several doctors and dozens of nurses, technicians, and administrative staff that could get access to their information, these people have all had it drilled into their heads that the privacy of the patients is inviolable.
In addition, the any information held by a SCOTUS clerk would be ultimately made public in a matter of days/weeks anyway, so there is no real reason to leak information in the first place. Many leaks result because someone decides that the public “needs to know” something that is being withheld. In the case of SCOTUS clerks, this moral imperative is removed.
The financial incentive is also reduced compared to other fields. If you’re clerking for SCOTUS you’re not worrying about money - the clerkship itself pays between $60-70k, and when you’ve finished your year you can expect a $200-300K signing bonus in addition to salary when you are snatched up by a major firm. So you won’t be accepting $5,000 from a reporter when you know you’ll be risking your whole career. A career which will be paying you 400,000/year within a few years anyway.
I’ll just add to the chorus of voices stating that a Clerk would be almost certainly destroying his/her chance of an excellent career by so doing. Furthermore, comparisons with political aides is wrong. Political aides are also a lot more in number, and it is understood that as part of their jobs they will have to leak information,perhaps under direction, perhaps as a *prid pro quo * and many will have standing relationships with the press and media, not the case with SCOTUS law Clerks.
Also many of them are too busy anyway to talk to the media or even recall at a moments notice what is happening in a certain case. They deal literally with thousands of cases a year and while the case of healthcare is far more high profile than most, even there you will not be recalling what exactly is going on at any given moment off the cuff.
The clerks will in fact blab, but it will be 40 years from now.
The other aspect is that players at the White House leak for a reason. Maybe they want to launch a trial balloon. Maybe they want to guide public pressure their way: the Executive Branch has a lot of internal conflict. Maybe they to do favors for reporters so they will receive favorable press and greater influence.
None of that applies in a Supreme Court setting. Kagan won’t influence Kennedy via press leaks, and favorable press contacts won’t advance a clerk’s career prospects. As noted earlier, it would be more likely to arouse suspicion.
Don’t have a cite, but I’ve read that in their most private, only-the-nine-of-them discussions, there’s literally no one else in the room. The most recently appointed justice sits closest to the door and shuffles papers back and forth out of the room to the clerks waiting outside. Maybe he or she is in charge of bringing the coffee and kolaches too, but that’s only my own speculation.
AND the ones in the group who kept faith would have stupendous motivation to flush out and destroy the leakers – with the skills, resources and support from up above to do so.
Draft opinions will start to circulate after that, though.
I’ll 4th or 5th this. As a law student, I understand that the people who get jobs clerking for a Supreme Court Justice are the cream of the crop of the cream of the crop. They are tops in their class at prestigious schools like Harvard and Yale.
When they start practicing law, they will need to hire someone to shovel the piles of money that get thrown at them when they walk down the street. They will work in plush offices and be respected by their peers.
The only way they can fuck that up is by a violation of a canon of ethics or committing a crime. Why would anyone possibly risk that so that Matt Drudge can get a scoop?
ETA: I would disagree with your second point. I’ll bet every single one of them are tripping over each other leaning in every time Anthony Kennedy clears his throat in order to get a sense of how he will decree…er cast his vote on this case.
I fully agree with the reasons given that a clerk would never leak case-related information.
But it’s NOT true that clerks don’t anonymously share gossip about Justices. They can and do share gossip, and those tidbits often make their way into newspapers, magazines and political blogs.
One of my favoriutes? Justice Anthony Kennedy waffles on his decisions so loudly and often that clerks sing the old TV theme, “They call him Flipper, Flipper…” behind his back.
SCOTUS clerks do not need good relations with the press. They serve at the sole discretion of the Justice and when they leave they will take a high paying job at a law firm. Having someone at the Washington Post who owes them a favor means nothing to them. If you work at the White House or on Capital Hill having someone in the mainstream press who you can count on to release your side of events can mean a great deal. They need the press to influence public opinion on their behalf. Supreme Court clerks and Justices have no need to influence public opinion and therefore do not need to leak to journalists.
What if the people on the court and the clerks were simply ethical and did the right thing for those reasons? Is there no way this is possible?
These are lawyers we’re talking about.
If you had just spent $200k (wag) and 3 years of your life for a law degree from a top school, would you risk your future so that someone could learn something a couple of months early?
They don’t hire the Sanford PD for security. :p:D