The Least Interesting Branch: Why Supreme Court Leaks Reveal Little


On four consecutive days last week, published articles revealing details about the behind-closed-doors deliberations and machinations of the Supreme Court during the most recent Term. Yet despite breathless promotion of the “EXCLUSIVE” stories, the revelations are almost completely uninteresting.

That observation is not intended as a criticism of Joan Biskupic, the reporter who wrote the stories. I’ve known Biskupic for many years and hold her in high esteem. However, the entire genre of Supreme Court tell-all is misguided.

Leaks from the White House are newsworthy if not uplifting. For example, we learned from one source that President Trump’s first Secretary of State, Rex Tillerson, called Trump “a fucking moron” after Trump described his assembled generals as “a bunch of dopes and babies” for not trying to monetize the U.S. military. From another, we learned that Trump wanted to know why the U.S. admitted immigrants from Haiti, African nations, and other “shithole countries” rather than admitting more immigrants from the likes of Norway. If nothing else, such leaks at least have some shock value.

By contrast, nothing in Biskupic’s reporting is shocking or even mildly surprising. In Federalist 78, Alexander Hamilton famously referred to the judiciary as “the least dangerous” branch of government, because, unlike the President and Congress, the courts have “no influence over either the sword or the purse.” Hamilton’s characterization has sometimes been contested. Thus, Yale Law Professor Alexander Bickel used Hamilton’s phrase ironically in the title of his influential 1962 book on the tension between judicial review and democracy. But dangerous or not, based on the sort of reporting coming from Biskupic and others, we might refer to the judiciary as the least interesting branch. All that the tell-alls really tell us is that the justices do their job.

The Unrevealing Revelations

Consider Biskupic’s four articles. On July 27, her first article dropped. Mostly it notes that John Roberts was the crucial swing vote during the most recent term, which is obvious from the Court’s decisions, in which he joined the four Democratic appointees in high-profile cases involving abortion, the Trump administration’s effort to rescind Deferred Action for Childhood Arrivals (DACA), LGBT rights, and the President’s financial records. The big reveal? Biskupic reports that Roberts voted against the administration in the DACA case just after oral argument, rather than switching his vote later on. That is a “dog bites man” story if ever there was one.

Nearly everything else in the July 27 article is a matter of public record or easily inferred from the Court’s opinions. The one exception is the observation that the Court declined to add a new Second Amendment case to its docket after dismissing a New York City case as moot because the four other conservative justices did not think they could count on Roberts to vote with them to expand the rights of firearms owners. The conclusion that Roberts might be wobbly on the Second Amendment is perhaps a little surprising, given his votes in the leading cases in 2008 and 2010, but “we can’t count on Roberts” is at best speculative and fairly banal. On a Court of nine, someone has to be the median justice. Right now it happens to be John Roberts. It is thus entirely predictable that in deciding which cases to accept, the four justices to his right and the four justices to his left would make calculations about how he would likely vote.

Biskupic next turned to the LGBT rights case, in which Justice Gorsuch wrote for a 6-3 Court that found that the federal prohibition on sex-based discrimination in the workplace encompasses discrimination based on sexual orientation and gender identity. The result of the case was certainly disappointing to hardcore conservatives, but the supposedly big reveal is a dud. Biskupic reports that in their original conference, the justices voted in favor of the gay plaintiff but against the transgender plaintiff, concerned about such matters as sex-segregated restrooms. Well, so what? Justices often vote one way at conference only to discover when they try to write a persuasive opinion that, upon reflection, they reach a different conclusion. There is even a term for this phenomenon. Judges and justices say that an opinion “won’t write” the way they set out to write it.

Biskupic also discusses the possibility that Justice Elena Kagan worked Justice Gorsuch to turn him (and the Chief Justice) around on the transgender case, but to the extent that is true, it  is wholly unobjectionable. Justice Kagan—who has herself expressed some sympathy for textualism—apparently argued that Justice Gorsuch’s textualist orientation ought to lead to a victory for the plaintiffs in both cases. There is nothing remotely untoward about one justice making on-the-merits arguments to a colleague.

Biskupic’s penultimate article in the series focuses on Justice Brett Kavanaugh. As with the first two pieces in the series, much of what Biskupic says about Kavanaugh is evident on the face of published opinions, concurrences, and dissents. The key such point is that Justice Kavanaugh often included language sympathetic to plaintiffs whose claims he voted to reject. Biskupic speculates that Kavanaugh is trying to replace in the public mind the image many have of him from his confirmation hearing with a softer one. That inference seems sound, but it is not based on any revelations of internal Court matters.

Biskupic does reveal that Kavanaugh, rather than some other justice, was the driving force behind ultimately failed efforts to resolve the abortion and presidential records cases on technical grounds. That is new information but hardly revealing of anything important. In the presidential records cases, the Court had asked for supplemental briefing on whether the political question doctrine blocked adjudication. Someone had to have come up with that idea. That it was Justice Kavanaugh is not especially interesting. Meanwhile, Justice Kavanaugh’s dissent in the Louisiana abortion case itself stated his view—which he had telegraphed the previous year—that the plaintiffs had not satisfied the burden necessary for facial invalidation of the law, a seemingly technical ground for decision.

The final article in Bisckupic’s series discusses the Trump financial records cases. She writes: “During their deliberations, CNN has learned, the justices struggled to balance the interests of the executive branch and those of Congress, and criminal prosecutors, seeking records—from any president.” With due respect, “CNN has learned” is a highly misleading characterization. Of course those are the issues with which the justices struggled, because those were the issues in the case, and any minimally sophisticated observer understood, without needing to rely on leaks, that any decision the Court issued could have implications for future Presidents and Congresses, regardless of party.

Biskupic also reveals that internally the justices, led by Chief Justice Roberts, sought as unified a ruling as possible, one that could not readily be portrayed as dividing the Court along partisan lines. Is that somehow unexpected or illegitimate? For years, Roberts has quite publicly sought to promote and defend an image of the Court as outside partisan politics. And in past high-profile cases, Chief Justices have done exactly the same thing. Earl Warren sought unanimity with respect to desegregation. Warren Burger sought unity with respect to Nixon’s tapes. William Rehnquist secured near-unanimity to validate the independent counsel.

A Problematic Genre

Accordingly, Biskupic has no real news to break. The only remotely interesting revelation is the fact of the reporting itself: some person or persons inside the Court—whether justices, law clerks, or other Court personnel—spoke to Biskupic about internal deliberations that ought to have been kept private. Professor Josh Blackman sees in Biskupic’s articles the hand of someone trying to valorize the Chief Justice and Justice Gorsuch at the expense of Justices Thomas and Kavanaugh. That’s possible, but to describe the leaks as “heartbreaking,” as Blackman does, is a to overreact by a couple of orders of magnitude. The leaks are small potatoes.

Indeed, just about everything written about the Supreme Court based on leaks shares the same flaw. The best works in this genre include The Brethren by Bob Woodward and Scott Armstrong, Closed Chambers by Edward Lazarus, The Nine and The Oath by Jeffrey Toobin, and Supreme Conflict by Jan Crawford Greenburg. Each includes a few tasty morsels, but collectively they have the opposite effect of what their authors intend: they show that the Court’s written output very closely reflects its internal workings, thus rendering the internal reportage and leaking superfluous.

Nonetheless, the authors of these books and of articles like those in Biskupic’s recent series appear to think that they are making a more revealing point: that behind closed doors the justices consider factors like public opinion, sound policy, and the possibility of backlash that are not, strictly speaking “legal.” Yet astute observers of the courts have known for well over a century that judges and justices decide cases based on such considerations.

In the end, then, Biskupic’s series and the genre of books based on leaks from the Supreme Court should provide solace. At a time when an entire branch of the federal government is headed by an incompetent, corrupt, vindictive narcissist, it should be reassuring to learn that the judicial branch, while hardly perfect, operates behind closed doors more or less as we expect it to.

Posted in: Courts and Procedure


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