Don’t Prosecute the Supreme Court Leaker

The anonymous person or persons responsible for the leak of Justice Samuel Alito’s draft opinion that would overturn Roe v. Wade (1973) and other cases upholding the right to abortion set off a media whirlwind on Monday night by violating one of the strictest institutional norms in American politics: what happens in the Supreme Court, stays in the Supreme Court.

At this point, we have no idea whether the draft opinion means that the court will actually overturn Roe. And we have no idea whether the leaker or leakers will ever be identified or whether their motives—the subject of wild speculation on Twitter and cable news on Tuesday—will be confirmed.

But that hasn’t stopped a rush to condemn the leaker and call for them to be punished, even held criminally liable. Senate Minority Leader Mitch McConnell (R–Ky.) called the leak “lawless action” and suggested that the Department of Justice could get involved.

That’s a rather tame response compared to what some conservative pundits and influencers have been demanding, with suggested punishments for the leaker ranging from the loss of their law license (which assumes that the leaker is a lawyer) toprosecution to the full extent of the lawAnd even attempts to declare the leak an act ofterrorArizona state Sen. Wendy Rogers (R–Flagstaff) topped them all by demanding that the leaker be arrested and given “the traitor treatment.

It is, of course, not a treason to leak documents from inside the Supreme Court. In fact, it’s not even clear that it is a crime. And that’s how it should be.

In broad strokes, the First Amendment ought to protect the leaker from prosecution—just as it should anyone who leaks vital government documents to the public. The Supreme Court might be famous for its institutional secrecy, but those institutional norms do not supersede the Constitution.

More narrowly, it doesn’t seem like there’s an obvious violation of federal law. As Orin Kerr, a professor of law at the University of California, Berkeley explained on Twitter, criminal laws that ban the leaking of classified information and the disclosure of medical records would not apply in this circumstance. “As far as I can tell, there is no federal criminal law that directly prohibits disclosure of a draft legal opinion,” he writes. “Maybe there should be, but right now there isn’t.”

But there are a lot of federal laws that could cover the situation. Even if the leak itself is not a crime, other conduct connected to the leak could be illegal, Kerr notes. After all, the federal government has lots of ways of targeting leakers.

That should not happen. Despite the massive public outcry the leak has caused and the impact it could have on American politics, the incident itself is an internal matter for the Supreme Court and should be dealt with accordingly. So far, that seems to be the way Chief Justice John Roberts is handling it. He’s instructed the marshal of the Supreme Court to investigate the leak—seemingly contradicting earlier reports saying he would involve the FBI.

While criminal charges should be off the table, the leaker ought to face the prospect of severe professional and reputational sanctions for undermining the sanctity of the Supreme Court’s deliberations.

“Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court,” Roberts said in his statement on the leak. “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.”

Hopefully, it remains a singular event—not a signal of a coming trend. This is something the court takes very seriously: Late Justice Antonin Scalia reportedly told new law clerks that he would “ruin your career” if any of them betrayed the court’s confidentiality. When some deliberations about the original Roe decision leaked to Time magazine in 1973, some of the sitting justices wanted to subject their clerks to lie detector tests to determine who was responsible.

That leak, according to University of Georgia law professor Jonathan Peters, led to the creation of the court’s so-called “20-second rule”—any clerk caught talking to a reporter would be fired within 20 seconds.

Of course, leaks still happen. Former law clerks disclosed some of the behind-the-scenes drama from the 2000 Bush v. Gore hearings to Vanity Fair in 2014. Other, smaller leaks have occurred throughout the court’s history, with perhaps the most famous dating to 1919 when a law clerk was caught leaking rulings to friends on Wall Street. The clerk, Ashton Embrey, was eventually charged by the Department of Justice for conspiring “to deprive the United States of its lawful right and duty of promulgating information in the way and at the time required by law and at departmental regulation,” but the charges were dropped before the case went to trial.

None of those previous leaks compare to this one—the exposure of a complete, authentic, draft opinion on one of the most sensitive topics that the court debates will have permanent ramifications for how the Supreme Court operates. In many regards, this is an unprecedented situation.

Even so, criminal prosecution for the leaker should be out of bounds. There’s no way to pursue charges without steamrolling the fundamental rights that are foundational to the court’s adjudications. It should be possible to believe that what the leaker did in this instance is wrong—deeply wrong in a way that might permanently shift the way the Supreme Court operates, and not in a good direction—while still recognizing that criminal prosecution is not the correct recourse.

The leaker has the right to leak, even if it was a dreadful decision to do so.

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