Political Animal


June 25, 2012 9:10 AM Silence is Golden (and Green)

By Ed Kilgore

As we spend another early morning half-focused on SCOTUSBlog in case the Supreme Court is ready to tell us whether we get to keep the health care reforms enacted by Congress in 2010, it’s hard not to marvel at the mysterious power of the Supremes to shroud their deliberations in mystery and suspense.

Over the weekend at TNR Harvard law professor Jack Goldsmith examined the relatively “leakproof” nature of the Court as compared to, say, the executive branch of the federal government and provided some fairly tangible reasons:

One answer is that the Supreme Court has fewer secrets than the executive branch and fewer people who know about each one. Only 70 or so people inside the Court—the justices, their clerks and senior staff, and a few Court employees—would be privy to the outcome of the health care case prior to its announcement. By contrast, more than 4.2 million people—almost all located in or associated with the executive branch—hold security clearances. The circle of secrecy for any particular sensitive operation is much smaller, but typically includes hundreds of people, often more.

But the most compelling explanation for Court secrecy offered by Goldsmith is the vast personal financial stake in silence that the most likely leakers—law clerks—share:

Law clerks also have a personal incentive to keep quiet. After one year at the Court, clerks can fetch hundreds of thousands of dollars in signing bonuses from law firms and are all but guaranteed successful careers. Leaking the Court’s decisions is one of the few ways to screw up these prospects. The leaker would have a hard time obtaining or keeping a license to practice law. And he or she would establish a reputation for irresponsible gabbing in a profession that places a super-high premium on the ability to keep confidences. No clerk wants to take these risks, especially since the chance of getting caught is relatively high.

Clerks with an ax to grind, of course, can always dish to legal writers well after the fact about the inner workings of the Court, the follies of Justices they don’t like, and the significance of particular decisions and particular opinions. But so long as they are in the great law-making and money-making machine itself, the inhibitions to chattiness constantly reinforced by rule, admonition, and peer pressure are greatly enhanced by the pot o’ gold at the end of the clerkship that often means a career where one’s choices are typically between power and leisure, with material success taken for granted. No wonder they rarely spill the beans to the grubby journalists whose own personal prospects are so very different.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • deanarms on June 25, 2012 9:59 AM:

    This may seem to be a quaint notion, but lawyers do have the highest ethical responsibility to keep their client's confidences. I'm sure that lawyers leak to the press, especially where it would advance their client's cause, but the fact is that Supreme Court law clerks, like you say, are poised to rise to the pinnacle of their profession. If budding stars like these can't abide by ethical rule no.1 -- keep your client's confidences secret -- then they are in pretty deep trouble. I'm not at all surprised that these deliberations have remained secret.

  • Anonymous on June 25, 2012 10:02 AM:

    the inhibitions to chattiness .... are greatly enhanced by the pot o’ gold at the end of the clerkship that often means a career ....

    In this day and age, why bother with a career? With a court decision this enormous, why not just "spill the beans" in a tell all book that lets you retire in your mid 20s. A clerk for say, Scalia, would have breath taking stories to be sure.

  • c u n d gulag on June 25, 2012 10:21 AM:

    Because how many books would that sell?
    How much money from those sales?
    Enough to retire on?

    We don't have a Moonbat Welfare program to buy-up books, like the Conservatives. We also don't offer the same range of career opportunities as Wingnut Welfare.

    Ir some Conservative clerk wanted to "expose" a Liberal Justice, there's a market there for that book. Both in individual, and bulk-buy, sales.

    And if their legal career is damaged, that book will be followed by a spot as some sort of young "Judicial Expert" at some Think Tank or two, some regular face-time on FOX, and either a fairly regular column or Op-ed column at the WaPo, the WSJ, or at least some other Conservative newspapers and magazines.

    A Liberal telling stories about Scalia might net him/her a few million bucks at most - which is chump change compared to what they'll make over their lifespan if they keep their dirty Liberal mouths shut.

  • Dave_MB on June 25, 2012 10:37 AM:

    Deanarms is right. The people who get picked to be Supreme Court law clerks have graduated with the top grades from the top schools and usually spent a few years as a Court of Appeals law clerk.

    While I won't say they're the 'best' junior lawyers around, they're certainly top tier young lawyers who would take their responsibilities very seriously and wouldn't be willing to 'leak' information to win a news cycle.

  • Emil on June 25, 2012 11:05 AM:

    I understand why no one leaks about Supreme Court decisions, but why are the justices so adamant about maintaining the mystery that shrouds even the most banal of details - e.g. the date of major decisions? Would it have killed them to say last week, "We're going to rule on the ACA on Thursday"? Instead, they keep everyone on tenterhooks because . . . well, I'm not sure why. Because they enjoy the suspense? It seems ridiculous to parcel out information this way, waiting until the last possible minute (10 a.m. Monday!) to even let us know which rulings will be announced. Give it a break on the drama, already.

  • Doug on June 25, 2012 8:45 PM:

    Emil, if the Justices were having, shall we say, a spot of bother trying to produce a majority opinion, then even THEY might not be certain as to WHETHER a ruling would be made, let alone WHEN.
    Considering who constitutes the majority of the SC, I would venture to guess that the ruling will NOT be that the ACA is un-Constitutional, but WILL be as narrow as possible.
    The mandate is there, partially, to pay for the costs of those provisions large majorities of the citizenry really, really like. Among those really, really like the mandate are the HCI companies, because without the mandate, and with the popular provisions retained, the HCI companies will go bankrupt - and the rightwingers on the SC know that.
    Nor can those right-wing Justices declare the entire ACA un-Constitutional without handing the Democrats, and of course Mr. Obama, a blow-out win in November.
    Of course there's always the possibility that Roberts and his crew have become so unhinged by their power - a la Lord Acton's "Power corrupts and absolute power corrupts absolutely" - they don't give a rats' ass about what happens.
    These ARE right-wingers, after all...

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