What greater good would be served by leaking a supreme court decision early? It doesn’t take effect until they formally release it and they can change their decision at any time. Or are you implying that they write it up and then sit on it for a few months?
As I heard on the news this morning, in relation to the health insurance mandate case…the Justices were going to take a vote today, and assign responsibilities for writing the majority opinion, and the dissent opinion (with a release of the ruling expected in June). However, it was also noted that any of the justices could, in fact, change their votes between now and that announcement of the ruling. So, particularly if it’s a close vote, the ruling could look entirely differently today than it does when it’s announced…and it’s only the final announced ruling which is, in the end, important.
That’s a good point, you and I are both clerks, we both are going to claw our way into partnership in a firm and you decide to leak to the Washington Post. I spend some energy outing you, I’m the hero and you are now an unemployable lawyer trying to pay back your student loans while waiting tables at a DC cafe.
Heh. 
Good plot for a Grisham book, but nobody clerking for a U.S. Supreme Court Justice really has to worry about clawing their way anywhere ever again, except maybe to the Supreme Court if they want to go that route. Once you clerk for the Supremes you’re pretty much made in the shade. Nice gig if you can get it.
At the risk of sounding very condescending, I must say that when you enter the profession you will have a different opinion. Even when they are on the case directly, the clerks will be too busy to know or care frankly much more than what they have been assigned from the Justices. In other words, they will be too busy trying to fulfill Kennedys requirements (for example) for a memo on 50 years of case-law and academic opinions on for instance, interstate commerce, to have time give much thought to the ultimate outcome. And the tasks they are assigned will not necessarily lead them to a conclusion about ultimate decision, especially if they are being asked to work on collateral and or opposing issues.
As long as you don’t do something stupid like leak details of their deliberations to the press, then you are screwed.
Say each justice has 7 clerks (lowball estimate). That makes 8*9=72+ individuals each session who are suppose to keep secrets. Barring incentives, that won’t happen for all of them. I might put my trust in “Most people”: I wouldn’t put blind trust in 95%+ of all people, again absent proper incentives.
Sure, but the justices aren’t putting blind faith in 72 randomly chosen chosen individuals - they’ve selected those clerks because they are highly trained as lawyers, and one of the key items in a lawyer’s training is the need for confidentiality. That’s drilled into us from day 1. So when people comment that clerks are the cream of the crop, it’s not just research skills and knowledge of the law we’re talking about - it’s also that basic professional requirement of keeping your mouth shut.
In almost those same words:
U.S. Supreme Court takes up healthcare in secrecy
Incidentally, 72 is a little high; associate justices get four law clerks, five for the Chief Justice, unless they want to get an extra law clerk by forgoing a secretary, and some justices only have three law clerks and two secretaries, so the number of law clerks is generally in the mid thirties, usually 36 or 37.
Plus, there’s also the element that if one of the clerks breaks,** and** he were succesful at covering himself up, he would have brought down with him a significant group of other promising lawyers. They would now ALL be forever under the cloud. Sure, they will not be waiting tables, but a lot of very desirable doors will be closing.
Well you also need to consider the selection process. To get a Supreme Court clerkship, you need to be one of the smartest, most anal-retentive ass-kissers in a law school class which is full of people who are among the smartest- most anal retentive ass-kissers in the country.
Slight hijack, but if they are deciding on the decision now, why wait until June to release it? I get that it will take a while to write up the decision and probably do some research on specific citations, but they could just say what their decision is and write up an explanation later
It doesn’t work that way. The Justices will still be weighing the case as the opinions are written. The justices will join or not join the opinion depending in some cases on what some would think would be minor points. The wording in Gore v. Bush that the ruling was not to be used a precedent in future cases was probably required to get the 5th justice to join it, for example. The wording and legal reasoning behind the opinion is as much a product of the court as the yes/no verdict.
It has been mentioned upthread, but in fact the decision isn’t really made until the opinions are written. In one case mentioned on NPR (I forget which case) Kennedy was assigned to write the majority opinion. After working on it a while, he declared “This opinion won’t write!” switched sides, reversing the result, and ended up authoring that majority opinion instead.
Plus, there may be some justices who are undecided on how to rule, or know roughly how they want to rule but are unsure how to express it, and want the benefit of seeing how their colleagues approach particular issues. Drafts of the various opinions will start circulating through the chambers and the different justices will have to decide if they agree with another colleague’s reasons, or of they think they need to write themselves.
I had a girl friend that was a clerk for Ruth Bader Ginsburg. We are crazy close, but she wouldn’t tell me A THING that was going on inside. Even if there was a really cool case being argued that I could have read about, she wouldn’t even tell me to go to the arguments. I got not a thing from here.
Bottom line is the group of clerks is very select and very small. And they take their committment very seriously. I think that’s enough.
I don’t think lwaking a finished decision early would make any difference at all, except perhaps to the career of whoever got blamed for the leak.
What would be useful and very important to leak is evidence of corruption or pre-judgement on the part of the justices. But it would have to be very powerful evidence indeed for it not to be simply brushed aside and denied. My guess is, if there is such corruption and bias among any of the justices, they are discreet enough that even their clerks don’t see it (or can’t prove it).
I’d guess that more people leak confidential government information of of a sense of zealous patriotism (misplaced or not) than do so for petty or venal reasons.
Also, wouldn’t violation of the secrecy of court proceedings somehow be a violation of some law? Not only flush your promising career goodbye, but also any related careers. I assume too that if the SCOTUS were inclined to teach a lesson, violations could be hunted down, and reporters compelled to name sources. After all, you’re in jail until you name your source, and it’s not like there’s anywhere to appeal your confinement or the order. They would find some reasoning why secrecy of the courts, unlike politics etc., is not covered by standard journalistic confidentiality.
That’s possible. I know that just from listening to the case, if I worked at SCOTUS, I would be doing that. Perhaps these clerks check their curiosity at the door.
Because decisions aren’t just yes or no. I guarantee you that Kennedy and possibly Roberts, and maybe even Sotomayor are fighting with this one in their heads. The opinion that comes out will likely be so detailed and precise that lawyers won’t even be sure what the hell it means.
In a case like this its very likely that moderates and the Chief Justice will be fighting to get as many people to agree on the final draft so the initial vote might (and very likely will not) be reflective of the final outcome.