A Supremely Problematic Leak

America was rocked today by the news of the leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, the case addressing the continuing vitality of Roe v. Wade. The leaked document was a draft of an opinion written by Justice Alito that would–if ultimately issued–reverse Roe as wrongly decided, and leave abortion rights to be decided by state legislatures.

The views on both sides of the abortion debate are so heated it’s impossible to fully set them aside to focus on the fact of the leak itself. But the leak deserves attention in its own right, regardless of which side of the Roe debate you are on. Although there have been leaks at the Supreme Court, those instances are rarer than hen’s teeth. The Court is used to conducting its deliberations and opinion-writing in complete secrecy, with no indication of its decisions outside of the tiny universe of Justices and their clerks until the Court’s opinion on a matter is publicly announced to the public. There is good reason for that rule of strict confidentiality: the Supreme Court routinely handles cases of enormous importance, and any kinds of leaks could have far-reaching political, economic, and social consequences–just as the leak of the Dobbs opinion did.

The idea that someone leaked a draft Supreme Court opinion under these circumstances is horrifying to those of us in the law profession. A tweet from SCOTUSblog, a non-partisan website that carefully covers every case before the Supreme Court, aptly captured the reaction of many: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.” Chief Justice Roberts echoed that sentiment in the statement he issued today, which noted: “Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”

The Chief Justice has ordered the Marshal of the Supreme Court investigate the source of the leak, which is absolutely the right thing to do. We don’t know yet who leaked the opinion, but it’s clear that their intent was to manipulate the decision of the Dobbs case, the votes of Justices, the terms of the Court opinions, and the political and public reaction to a potential reversal of Roe. The Chief Justice vows that the work of the Court “will not be affected in any way” by the leak, and states: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” But what’s troubling here is that someone–a clerk, an employee, or even a Justice on the Court–attempted to exert extrajudicial influence on the Court in the first place. That prospect is extremely unsettling, because if someone thought it was appropriate to leak the draft of the Dobbs opinion, what’s to prevent leaks in the future of opinions in cases involving redistricting, or presidential powers, or the death penalty, or any of the other hot-button issues that the Court regularly addresses?

I would make one final point: although the Court typically keeps virtually everything about its operations confidential, I think it is important for the Court to disclose any findings the Marshal makes about who did the leaking, and why. The role of the Supreme Court is essential to our constitutional system, and leaks erode the trust that is one of the Court’s most powerful attributes. The public deserves to know who–as the Chief put it–tried to “undermine the integrity” of the Court’s operations.

Leaking Like A Sieve

We’re living in the midst of the leakiest America in history, and it’s causing lots of problems for our country.

The leakiness isn’t confined to just Washington, D.C., the Democratic National Committee, or the confused conduct of the Trump White House, where it seems as though every confidential meeting must end with a dash to the door so that everyone in attendance can call their favorite journalist and recount what just happened in excruciating detail.  Now the leak-fest is also affecting foreign affairs and criminal investigations, too.

The latest evidence of this problem involves the investigation into the horrendous suicide bombing in Manchester, England, where an Islamic extremist specifically targeted kids and their parents at a concert and killed 22 innocents and injured 64 more.  British authorities shared information about the attack, including the name of the bomber and photos of the debris being examined as part of the investigation, with an intelligence network that includes the United States.  Some unprincipled American recipient of the information then promptly leaked the information to the New York Times, which published it.

The BBC is reporting that British officials are furious about the leaks, which could affect the success of their investigation, and have stopped sharing intelligence about the attack and its investigation with American authorities.  British Prime Minister Theresa May also plans to raise the issue with President Trump at this week’s NATO meeting.  Of course, it’s not clear that Trump has any ability to stop the rampant leakiness — he can’t even get his own White House personnel to keep things confidential.

When the profound leakiness in our government invades the intelligence agencies and the criminal investigators, to the point that our allies can’t even trust us sufficiently to disclose information about terrorist attacks that are bedeviling all western countries, then we’ve got serious problems.  Obviously, we want to get whatever information we can about terrorist attacks, so we can use the information to prepare our own defenses and procedures to try to prevent future attacks.  If our allies withhold information because they’re afraid it will be leaked, that not only embarrasses America, it hurts us, too.  And if criminal investigators become as leaky as White House staffers, the confidential investigatory information they provide may help the criminal actor to avoid capture or prevent a fair trial — neither of which is a good thing, either.

The reality is that some things must be kept secret, and if the people in our government can’t keep their mouths shut about the truly secret stuff, then they aren’t qualified to serve in positions where the ability to maintain confidences is a crucial part of the job. We need to determine who is leaking intelligence and investigatory information and thereby imperiling both our relationships with our allies and our own security and replace them.  The leaks have got to stop.

The (Invisible) Empire Strikes Back

You hear a lot about federal employees who comprise the so-called “Deep State” these days.  They apparently don’t like the new President or his policies, and they’re concerned about what he’s going to do to their jobs.

So, at least some of those federal employees apparently are doing what any honest, “merit-hired,” politically neutral “civil servants” would do — they’re figuring out ways to undercut the new Administration’s agenda, “slow walk” proposals, and otherwise thwart policy changes.  Politico calls it “the revenge of the bureaucrats,” and notes that the principal weapons of the “Deep State” are carefully aimed leaks, efforts to have the inspector generals of agencies investigate political appointees, and using “the tools of bureaucracy to slow or sandbag policy proposals.”  Is it any coincidence that, since the new Administration took office, leaks seem to have come fast and furious?

This is an interesting issue, because there’s a fine line between the right of federal bureaucrats to exercise their First Amendment rights and the need to have workers who will blow the whistle on misconduct, on the one hand, and the actions of politicized employees who simply don’t agree with the direction the new Administration is taking and want to try to use their special positions to stop it, on the other.  It may be a fine line, but it should be a clear line, with the former being acceptable but the latter not.  Federal employees aren’t elected, and their views of what is the best course aren’t entitled to more weight than, say, the people who voted and elected the new Administration in the first place.  Career bureaucrats shouldn’t be permitted to use passive-aggressive methods to block policy changes just because they disagree with them.

The “Deep State” employees might think they’re clever in playing a backroom game of leaks and bureaucratic maneuvers, but it’s a dangerous game for them, too — if people get the sense that the federal workforce is hopelessly politicized, it’s going to continue the long decline in public trust in government, and ultimately people who might otherwise protect the federal employees from cuts won’t do so.  The whole notion of civil service is that the federal workforce shouldn’t be political, and instead should be comprised of knowledgeable, experienced career employees ready to implement the policies of whichever Administration may take office.  If the workers themselves demonstrate that they are politicized, what’s the point of the civil service in the first place?