Wednesday, August 05, 2020

Leaks, Legal Realism, and Private Deliberations

by Michael C. Dorf

My latest Verdict column discusses a four-part series on the Roberts Court by reporter and judicial biographer Joan Biskupic, which appeared on last week. Although I express admiration and respect for Biskupic (whom I have known for many years), I criticize the entire genre of behind-the-scenes reporting on the Supreme Court. My point is not that the Court should be shrouded in glorifying secrecy but that the revelations by Biskupic and others are invariably duds. They provide virtually no insight into the Court's workings that is not apparent from reasonably careful study of its public product.

Here I'll elaborate a bit further on how the revelations fail to illuminate in order to confirm my conclusion that the reporting has virtually no public benefit. I'll then describe the cost of leaks of what ought to be private deliberations. Although I don't think the cost is very large, it is large enough to outweigh the nonexistent benefit.

My Verdict column devotes two or three paragraphs to each of Biskupic's four articles last week. I won't repeat the details of the analysis here, except by way of summary: much of what Biskupic writes simply reports on matters that are plain on the face of the justices' opinions, concurrences, and dissents; the behind-the-scenes details mostly confirm what's already clear from the written output; and the closest thing one sees in Biskupic's reporting to revelations are indications that the justices consider factors that a hyper-formalist would not regard as purely "legal" considerations, such as policy considerations, public opinion, and the possibility of backlash. Yet even those revelations tell us virtually nothing that legal realists have not been saying for well over a century. I further contend that the shortcomings I identify are hardly unique to Biskupic's reporting but are characteristic of the genre even as practiced by the best journalists. There's just no there there.

Before moving on to costs, I should pause to consider a possible benefit of the leak-based reporting: Perhaps it aligns public perceptions of the Court with reality for people who are not close Court watchers. Sure, one might think, people who read this blog don't need revelations of private deliberations to realize that justices consider constitutional and statutory text through a lens that includes their policy preferences and values, but the great mass of the naive public do.

Yet nearly the opposite is true. Barry Friedman's 2009 book The Will of the People is mostly about how far the Supreme Court can deviate from public opinion (spoiler alert: over the long run, not all that far), but it also discusses perceptions of the Court at some length, and what he finds is that pretty consistently across many decades, people's approval or disapproval of the Supreme Court closely tracks their policy preferences. When the Court upholds laws they like or strikes down laws they dislike, people think the Court is doing a good job, and they think it's doing a bad job when it strikes down laws they like or upholds laws they dislike. Friedman focuses on constitutional cases, but the pattern is similar in statutory interpretation. Recent polling confirms that popular views of the Court continue to track policy outcomes.

Put differently, the People are not naive formalists who approve of the job the Court does even when it reaches policy results with which they disagree on the ground that the justices are simply following the law as written. To be sure, it's possible--even likely--that many people think the justices should simply follow the law as written regardless of their policy preferences, but if so, that simply means that those same people are suffering from very serious confirmation bias. Conservatives think that the Court is following the law when it reaches conservative results but engaging in illegitimate policy legislation when it reaches liberal results, and liberals think the opposite. Such observers would view revelations from behind the scenes through the same lens of confirmation bias.

The bottom line is that reporting like Biskupic's will not move the public closer to a more accurate legal realist picture of the Court.

Might there be other benefits? Writing in the Washington Post, Daniel Epps suggests that leaks are a useful antidote to the Court's obsession with secrecy. Yet there are better solutions. For example, Epps rightly criticizes the practice by which individual justices decide when their Court papers will be made available to the public, with retired Justice Souter having selected a waiting period of 50 years after his death. Something like the Presidential Records Act (either by statute or adopted as a Court rule) could establish a uniform (and shorter) period. Likewise, another serious problem Epps addresses--sexual harassment by federal judges--should be addressed by expanded coverage of Title VII and whistleblower protection. Leaks are an extremely blunt and often ineffective instrument for targeting the issues Epps identifies.

So much for benefits. What about costs of leaks? As I note in the column, I disagree with the assessment of Josh Blackman, who finds the leaks highly problematic. He goes so far as to say that if, in response to the leaks and the fractured Court they supposedly reveal and contribute to, Chief Justice John "Roberts cannot unite the Court, he must leave it." That's preposterous. Because Biskupic's reporting reveals nothing of great moment, Blackman is overreacting in the extreme.

Yet that is not to say there are no costs to leaks. Epps notes but understates one of them. For reasons I have never quite understood, it is considered both interesting and a sign of weakness when justices change their votes after the initial conference. I would have thought that such mind changing is typically a sign of a healthy judicial mindset. Good jurists will find some cases hard, even or perhaps especially after skillful presentation of competing viewpoints in briefs and oral argument. They will come to the conference with a tentative view and vote based on it, but after attempting to draft an opinion or seeing a draft opinion and dissent by colleagues, will occasionally have a change of heart. That's honorable. And yet, some of the most juicy reporting focuses on justices who change their minds after voting in conference. Biskupic even thinks it's newsworthy that Roberts didn't change his mind after the conference in the DACA case! Insofar as leaks about votes that change after conference have a chilling effect on such changes, that's a cost.

There's another cost that should be familiar from open meetings and sunshine laws: less open and honest deliberations. Epps is skeptical that anything worth saying will be chilled by the fear of leaks. And surely to the extent that people don't use racial epithets or make inappropriate jokes because of fear of publicity, that's fine. But there are matters that it is completely appropriate to discuss in confidence that one would rightly hesitate to discuss publicly. Personnel matters are an obvious example, but even in deliberating about cases, leaks pose risks.

Suppose that the Court denies certiorari in a business case that raises an issue worth billions of dollars. In pricing the value of the stock of companies that would be affected by the issue, the market will not know whether the Court is satisfied with the lower courts' handling of the issue or instead, whether the justices would like to take up the issue but thought that some procedural matter in the case that was before them made it a poor vehicle for resolving the issue. A leak to the effect that the cert denial was, say, due to a vehicle problem will move markets in a way that in turn creates a risk of insider trading or its equivalent. More broadly, anyone who has ever worked in any organization of any size or sophistication understands that confidentiality has legitimate value.

None of that is to say that the leaks at issue here are momentous. As I say in the column, their cost amounts to "small potatoes." But given that some future leak could involve larger potatoes and the lack of any real benefit, the leaks impose a modest net cost.


Joe said...

The fact that "legal realists have been saying for well over a century" is not the same as something the general public knows much about. The appropriate path there is to note in the article or whatnot the scope of the reveals. A lifer Supreme Court reporter who wrote books on more than one justice should be able to do this.

I am not the average person on this specific subject. On some other subject, the level of reveal here might be something I would know little about even though those in the know would not find the material too surprising. It should be noted that I have seen some legal voices on Twitter interested in what the articles noted. "Nothing to see here" does not seem to be something totally agreed even among that class.

Issues involving records and sexual harassment very well might be better handled in some other way. But, especially the latter remains an imperfect avenue. At times, leaks can be important safeguards when official channels don't do their job.

There is also a reason for privacy in deliberations though justices do not do themselves any favors for not providing openness in various respects including involving oral arguments and not explaining themselves in the "shadow docket."

There is no real exact science there regarding what sort of leaks are appropriate. Or, even what exactly is a "leak." I gather many would accept some "on background" information there while the author researched a biography of John Roberts, for instance, or during a book on a certain subject or case.

I think the Supreme Court is a "court" and that requires various messy things that might not seem "judicial" in some people's views. The public should be aware of this and some "small potatoes" examples can help inform the public there. I also think it quite possible some of this information (which seemed, e.g., positive regarding one or more justices) came from the people themselves. Readers should take all articles with a grain of salt.

Jason S. Marks said...

Thank you Prof. Dorf for writing on this topic and countering some of the "sky is falling" rhetoric (most notably Prof. Blackman, who seems critical of CJ Roberts whenever he diverges from the Federalist Society outcome in a case).

I think the import of journalist reporting on the Supreme Court is more nuanced. Why do books from The Brethren to The Nine become best sellers and draw intense media attention? Why do reporters like Nina Totenberg and Joan Biskupic and Linda Greenhouse get major points for scoops on the Justices, including interviews? First, the Supreme Court is the most hidden branch of government. Other than published opinions and orders, the public has no idea what happens in major cases that impact our lives as much as major legislation. We collectively yearn for some rationale for how the sausage is made, particularly when the reasoning in the opinions seems suspect or upends decades of precedent. Given the secrecy, any reporting that pierces the veil becomes noteworthy, even if it appears to add marginal light. Second, if the public really did have a default legal realist belief that justices vote by political convictions or party lines, why would they bother buying these books? Why would reports on private deliberations become news that sells? Perhaps because the public simply has no knowledge or preconceived notions of Supreme Court process. So understood, the reporting does provide a public benefit.

In a larger sense, we teach in schools (high schools certainly, colleges perhaps less so) that a mythos surrounds the Court as a great deliberative body, the Olympus in Dworkin's phrase. We want that myth to be true; we want our highest court to represent the best reasoning and wisdom and respect for law we believe our Founders intended or that we deserve. We revere Brown and Griswold and Gideon and the other watershed cases of forward progress on the promise of simple justice and equality at the same time we forget or try to push aside or minimize Dred Scott and Lochner. The Court may operate in a legal realist fashion, or even in a coldly calculating political sense, but the myth of something higher still tugs at our heartstrings. In this view, having major insight into the inner workings of the Court does a public service by not necessarily deligitimizing the Court or the myth but showing that both the weight of history and the meaning of the Court in a mythic sense and political calculus keep tying justices in Gordian knots, and that knowledge is helpful rather than hurtful. The fact that some justices stay awake at night worrying about the historical impact of a decision or the practical impact of a decision gives me hope, for when the justices no longer tether themselves to that Olympus both the people and the ideal and force of law in our democracy suffer greatly.

Every year after a Super Bowl win, NFL Films produces an insider montage of the run to victory. We see and hear what really happened, thoughts of players and coaches we do not see in real time. We peel back layers of privacy and secrecy and get a better (if at times skewed by production) history of a season. It does perpetuate the myth the NFL wants to sell and the winners write. But what if all journalists had access to that type of footage? What type of critical history might get written? Would it be healthy? Yes, because we understand what really happened, even if the myth takes a hit. With the Court, the secrecy perpetuates a myth fewer people believe exists, calling the integrity of the Court into question. At least an accurate accounting could confirm our worst fears or show that the tug of myth and weight of history still matter.

tjchiang said...

There is a difference between suspecting something (even to a very high degree of confidence) and having concrete evidence. Legal realists have been saying forever that courts consider things like political backlash, but they have been more polite about whether that consideration is subconscious (and so judicial denials that they consider those things is merely self-delusion) or conscious (so judicial denials are flat out lies). I think you greatly understate the value of the leaks. It is like saying that everyone already knew that Donald Trump was a sexist pig, so the Access Hollywood video had no value.