Justices Kagan and Barrett on the SCOTUS Leaks

Over the past decade or so, I have written quite a bit about Supreme Court leaks. For a time, Joan Biskupic had the inside scoop. Indeed, Barrett relayed in her books that she had private conversations with the Justices. I’ve heard that Chief Justice Roberts, in particular, felt burned that Biskupic published information that was supposed to be off-the-record. So it goes. But after Justice Ginsburg’s death, Biskupic’s information largely dried up. Of course, Josh Gerstein at Politico got the Dobbs leak, but that was a one-off. Gerstein has not published any more inside information. More recently, Jodi Kantor of the New York Times has published a regular stream of information from the Court.

No matter how you slice it, the problem of leaks continues.

Justices Kagan and Barrett addressed the issue of leaks at some length during their congressional testimony (which I am just now wrapping up).

Kagan told the House Committee:

We can’t engage do our business, we can’t engage in confidential communication, which is the best way to operate is to be fully open with one’s colleagues about one’s views and if you think that those views are going to appear on the front page of the newspaper, you pull back, you don’t have the kinds of conversations that I think the court really depends on to do great work. so this is something that has frustrated all of us and we are continuing to make efforts to resolve.

Kagan offered similar remarks to the Senate Committee:

The leaks “dramatically change the way we do business internally or at least has the potential to do so. The way we relate to each other depends so much on honest communication among the nine of us. And if the nine of us do not have trust in one another and don’t have trust in one another and all the people who work for us, then those kinds of honest conversations that we need to do our business are not going to take place. They are at least going to be frustrated, so I think it is a problem that has frustrated every single one of the justices because of the security issues, but because it is just not the way a court should operate and not the way a court can operate if it wants to have the kind of deliberations that are the backbone of what we do.”

Justice Barrett volunteered some information about the Court’s new NDAs.

We are doing our best. we have instituted protocols to keep better track of who has access to document, who has touched documents when printed. We have always required employees to sign a confidentially agreement but recently we begin requiring employees to sign a nondisclosure agreement, which we do have carveouts for whistleblowers and that sort of thing, and those carveouts go beyond what federal statutes require. but we are hoping that driving the need for confidentiality home with these NDAs will just be an additional check on employees who are sharing information inappropriately and often illegally.

The Supreme Court has never publicly acknowledged that clerks are required to sign NDAs. We learned of this news from, drumroll please, a leak to the New York Times. Indeed, the Court offered no comment to the Times:

A spokeswoman for the court declined to comment about the nondisclosure agreements. She also did not respond to a question about whether the justices have been asked to sign the contracts.

The people who described the agreements spoke on the condition of anonymity because they were not authorized to speak publicly about court matters.

Judge Barrett has now confirmed the leak, perhaps without even realizing it. I wonder if anyone at the Court caught this.

Over the years, I speculated that Justice Kagan was at least adjacent to some Supreme Court leaks. I take Kagan’s congressional testimony to be truthful, so I’ll admit I was wrong. And I’ll take Kagan as speaking truthfully that none of her other eight colleagues would leak information. If that’s the case, then how can the leaks be explained? Are there simply rogue law clerks who are acting ultra vires, without the knowledge of their boss? Or maybe there is something short of tacit approval?

In any event, I appreciate that Kagan and Barrett have now locked in about leaks. Any clerk from their chambers would now be deluded to think their boss quietly supports a leak.

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