The Supreme Court leaks keep coming — and that’s good

Parker Higgins

Advocacy Director

The Supreme Court of the United States
Joe Ravi, CC BY-SA 3.0

In the week since Politico dropped its blockbuster reporting on a draft Supreme Court decision that would overturn Roe v. Wade, the floodgates of leaks have opened. Just today, Politico has reported on more confidential information regarding the status of that opinion, and at least The Washington Post and CNN appear to have anonymous sourcing close to the court.

These leaks, and the reporting they enable, are a good thing. The journalism we’ve seen on this important issue affecting the rights of hundreds of millions of Americans is a critical public service. Nevertheless, in the past week many political commentators have turned their attention to the leak itself and the perceived transgression from long-standing norms that it represents. One outlet memorably called the leak “the gravest, most unforgivable sin.”

These attacks on the leaks are nonsense. We've come to expect criticism of reporters who have unearthed sensitive or embarrassing information that is nonetheless newsworthy; it's no better to go after the source who provided those facts.

Others have argued that point vociferously in the past week. Matt Pearce at the Los Angeles Times has called for more leaks from the Supreme Court, while Jay Willis at the Supreme Court-focused publication Balls and Strikes has gone so far as to provide his Signal information for would-be leakers. At New York Magazine David Klion argues that even without the “who” and the “why” of the leak, we can describe it as a public service and “good, actually,” and at Politico, the outlet that kicked off this firestorm, Jack Shafer defended the leak and condemned the “veil of secrecy” that hangs over the deliberations from the highest court in the land.

In a sense, most of the arguments about the identity of the source behind these “unprecedented” leaks are a sideshow. (And in fact, leaks from the Supreme Court have happened before and already many times since!) This is not a whodunit story, but a significant legal development that could mean the restriction of long-established rights for hundreds of millions of Americans, with dangerous or lethal consequences. Ultimately, the story has informed the public of a consequential government decision of historic importance. That is what journalism is supposed to do.

We don't yet know — and indeed, may never know — the identity of the original leaker, or what motivated their disclosure. But the focus on their identity misses the point. We do know that in subsequent reporting, the pace of new reporting from inside the court has grown. And despite the hand-wringing from conservative commentators, at least some of the anonymous sourcing is coming from the political right.

For example, the Post has spoken with unnamed “conservatives close to the court” — apparently close enough to provide an account of a private conference among the justices. That account echoes earlier discussions on the conservative Wall Street Journal editorial page.

There's no ideological purity test for sources, nor should there be. Leakers, whistleblowers, and other sources frequently come with baggage or “impure” motivations for their disclosures. The job of the journalist is to distill the newsworthy information into a reported story.

Whether the leaker in this case was a liberal frustrated with the direction of the court, a conservative aiming to discipline a majority into holding together, or somebody else entirely, the reporters have an opportunity and a duty to report the facts they can provide.

As frequent Supreme Court litigator Theodore Boutrous put it, “Reporters have the right and indeed an obligation to try to get secret information from every branch of the government and the First Amendment protects their efforts to do so.”

The Supreme Court is a tremendously powerful and influential institution, and yet it has largely resisted the same forces toward transparency that have affected large parts of the executive and legislative branches. The people bound by its rulings deserve to know how it works.

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