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Monday, May 02, 2022

Leaks and a Look Backward

I'm sure there will be lots of commentary on the apparent leak and, with luck, I will not add to it. But I do have a couple of immediate thoughts, albeit they come at the least useful moment, since a) as the leak itself suggests, one often acts and reacts foolishly in the moment and b) one doesn't know whether, assuming a leak did indeed occur, it came from a member of a chambers--a Justice or a law clerk--or from someone or somewhere else. That matters for some reasons and not for others.

The first thing I must suggest is something I have been saying to myself plenty over the past five or six years--somewhat ruefully, since I wrote a completely true but, it appears, ill-timed book on the value of institutions in the First Amendment--and that is that the true, encompassing crisis of our times is an institutional crisis. In this case, the crisis might be manifest in the failure of the institution to stanch such leaks; it might be manifest in the petty leaks and apparent off-the-record interviews with justices that have occurred over the past few years, all of which were contemptible; and it might be manifest in a different and possibly generational way, in the sense that there is no greater sign of an institutional crisis than that its constituents no longer understand the nature, role, and value of an institution and its norms, and no longer have the faintest capacity to understand why their own desires might be less important than that institution. We spent a great deal of time talking about that during the Trump presidency--about the idea that staffers, officials, or, God help us, the chief executive might not understand that they filled a particular institution and must inhabit and respect its norms, whether they liked it or not and despite their own views in the moment. That would certainly be true of a justice or clerk who thought, "Every institutional norm forbids this action. But I'm doing it anyway."

The second is that, to the extent we are talking about a law clerk leak, it is somehow incomplete, if not dishonest, to do so without talking about money and its equivalents. Supreme Court law clerk signing bonuses are in the neighborhood of $450,000 these days. Some people consider that pretty decent money. But people value all sorts of things, and there are lots of ways to cash out the value of a Supreme Court clerkship, all at highly inflated sums, and a signing bonus is just one, as any former clerk working at a desirable law school (which is any law school, given the desirable nature of the job) could tell you. It seems to me that any anonymous leak by a Supreme Court clerk cannot be discussed or understood with any openness and intelligence while pretending that the context of almost endless remuneration just for having had the job doesn't exist. I would disagree with a law clerk who openly, by name, leaked a draft opinion, but I might feel a kind of respect for that person. Of course I would still call for their prosecution, possible imprisonment, and lifetime ineligibility for the bar, and rightly so. (This would hardly disable them, of course, from profiting substantially from such an action. In this country, everything can be monetized at some point and in some way. A memoir entitled "I Did it For Principle!" would get an advance from any publisher in the land large enough to make Croesus blush.) Still, I might respect the action, in its way, and at least doing so in that way would be preservative of the institution: violating institutional norms openly and for reasons of alleged principle reinforces those norms in the very act of violating them. But--again, if it is a clerk doing the leaking--we cannot understand an anonymous leak without understanding the money, goods, connections, and reputation involved in the commodity of having clerked for the Court. Leaking anonymously strikes me as worse than cowardly--it's chickenshit. (I should add an edited point here. I understand that Orin Kerr argues, in a Place I Do Not Visit, that there may in fact be no criminal penalties available if a law clerk was the culprit. Fair enough. I should not have assumed otherwise, and it ought to temper my rhetoric, even as I think any available remedies and punishments should be sought. On the other hand, in a way it underscores the cowardice involved in leaking anonymously and the degree to which there is no point discussing a leak by a law clerk--if it was a clerk, which it may not have been--as some great act of principle without also discussing the unwillingness to give up the myriad prizes that come with the Certificate of Clerkitude. Taking prosecution off the table would elevate the level of cowardice and unworthiness of the clerk-leaker from "But for Wales" territory to "But for Denbighshire?")

I'm also interested in looking back. My rather visceral reaction to this story makes me reflect on past news, even if this case is unusual and extreme. It is worth recalling the number of law clerks who apparently lined up--all anonymously, of course--to perform their outrage by leaking information to that august institution, Vanity Fair, about the deliberations concerning Bush v. Gore. Those leaks happened after the fact, of course, although this point cuts both ways: it did no harm to the institution in the moment, but it also can hardly be said to have been done in the heat of the moment. It was a studied act of cowardice. Years ago I called their stated justifications for doing so "insufficient and melodramatic," and I see no reason to change my view now. If anything, with that decision having gone from scandal to footnote, it seems more appropriate, and a reminder that a clerk's view of what constitutes "urgency" or "necessity" pales next to the wisdom of the  longue duree. But while we share our shock or outrage (or glee, for some) at the idea of a leak, we should remember that it happened before, and that those leakers did very well for themselves. Their names are public; you could look it up, as the old saying goes. A look at the clerks from that Term reveals any number of people I would happily curry favor with today, lickspittle that I am. But I also continue to think that their anonymous leaking was cowardly and that they too should have been prosecuted (or, per my note about Orin above, subjected to actually existing penalties). At a minimum, it is not too late for them to write to their bar or bars, presumably copying their current employers, reveal their violation, and see whether the bar or their employer cares to take action. If you have nowhere to go but down, why not try that?  

Finally, what of Justice Potter Stewart? After all, this leak might have come from a Justice--and, at a minimum, a number of justices in recent years have been happy to give off-the-record interviews to the press. Stewart, of course, did a good deal more than that. He leaked like a sieve. His role as unofficial reference librarian to Bob Woodward and Scott Armstrong, authors of The Brethren, was not revealed officially until after his death. But of course he knew it, and could have disclosed it any time he wished. And doubtless it was an open secret for many more. Stewart today is, I think, fairly evaluated as an okay justice but more or less a footnote and certainly not a star in the Court's history. (As are most Justices, after a long enough time, in fairness.) But in his day, he happily took his full measure of victory laps: the usual double-round of tributes and encomia from his servitors, both on his retirement and at his death. I think The Brethren did no lasting harm to the Court. It certainly did not at the time harm Stewart, who surely leaked in part precisely to buff up his own public reputation. But I also think it is entirely fair to conclude that by many a reasonable reading of his oath, of the judicial role, and of the norms of the Court, Potter Stewart spent the last decade or so of his service on the High Court as a sitting justice who was fully eligible for impeachment. Should that not somehow be factored into our mentions of Justice Stewart, on the rare occasions that he is mentioned at all? There is a bit of a trend right now of law review articles articles talking about the need to add moral considerations to parentheticals in citations. Should we not at least refer to him, when we mention him, as "Stewart, J. (committed impeachable offenses)"? Or do something similar in remembrances by former clerks? ("I remember the time that Justice Stewart, who was then committing impeachable offenses on a regular basis, said sagely to me, in his inimitable gruff voice,....")

Perhaps, in short, as we reflect on the cowardice and greed (with whatever added alleged soupcon of asserted principle or outrage) of the current leaker, we might spare a thought or two for the pusillanimity of the leakers of the not-so-distant past.    

Posted by Paul Horwitz on May 2, 2022 at 11:37 PM in Paul Horwitz | Permalink


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