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Supreme Court secrecy breach sheds light on internal dynamics

Greg Stohr, Bloomberg News on

Published in News & Features

The U.S. Supreme Court this week witnessed an extraordinary breach of its rules of confidentiality, as a series of CNN stories exposed some of the justices' internal deliberations during their just-completed term.

The series, written by veteran Supreme Court reporter Joan Biskupic and based on unidentified sources, shed light on the maneuvering among the justices in major cases over abortion, subpoenas for President Donald Trump's financial records and job discrimination against LGBT workers.

The revelations are likely to send a chill through a court that is normally among the most leak-proof institutions in Washington. Biskupic's stories included information known to only a handful of people -- the nine justices, their law clerks and office assistants and perhaps the justices' spouses and closest outside confidants.

"The level of detail is truly astonishing," said Melissa Murray, a New York University law professor and co-host of the "Strict Scrutiny" podcast about the court. "The fact that the court is like a sieve or a colander is really surprising. It's just not done."

Biskupic wrote that Chief Justice John Roberts took a consistent stance against Trump's effort to end the DACA deferred-deportation program and signaled to other justices he wouldn't vote to overturn gun restrictions. She said Justice Brett Kavanaugh unsuccessfully pushed to have the court sidestep the abortion case and one of the subpoena disputes.

The stories left Supreme Court advocates and scholars feeling varying combinations of captivation and alarm. Even as court-watchers salivated over details involving opinion assignments and internal negotiations, many expressed worry about the institutional implications for a court that depends on mutual trust and goodwill even in the face of sharp legal disagreements.

 

"To me, it is another example of important norms breaking down in D.C.," said Rachel Barkow, a New York University law professor who clerked for Justice Antonin Scalia in the 1997-98 Supreme Court term. "The court's legitimacy is so important to its ability to function effectively, but the kinds of stories leaking make the court appear more partisan as a result."

Supreme Court spokeswoman Kathy Arberg said the court had no comment on the stories.

The stories devoted most of their attention to Roberts and Trump's two appointees, Kavanaugh and Justice Neil Gorsuch, portraying Roberts as a powerful behind-the-scenes force. Biskupic said Roberts "guided" Kavanaugh in crafting an opinion dismissing a challenge to New York City handgun transportation restriction after the city changed its law.

The stories also said the chief justice appeased the court's liberals -- and averted a possible dissent -- by compromising on an April 24 order that let the administration keep using a tough test to screen out green card applicants who might become dependent on government benefits.

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