Two Hails For The Chief’s NDA

Leaks from the United States Supreme Court are not a modern innovation. But in recent years, the depth and breadth of leaks have exploded. Perhaps the modern precedent was set in 2012, when Jan Crawford of CBS News reported how Chief Justice John G. Roberts changed his vote to save the Affordable Care Act. Over the next decade, Joan Biskupic of CNN published a regular series of inside scoops about internal deliberations, including how votes changed in an affirmative action case. In 2022, Josh Gerstein of Politico published a draft of the Dobbs opinion, which was poised to overrule Roe v. Wade. That unprecedented leak nearly led to the assassination of Justice Kavanaugh, yet the Court’s internal investigation into the leaker reached no conclusion. 

Over the past few years, Jodi Kantor of the New York Times has shed light on how the Supreme Court decided some of the most contentious cases, including decisions about abortion and presidential immunity. Kantor’s latest revelation is somewhat ironic: starting in 2024, the Chief Justice has required all Court employees to sign a Non-Disclosure Agreement (NDA). As much as I want to hail the chief, I can only give Roberts two cheers. I have long called on Roberts to address the leaks, and I appreciate that the NDA is an important step. Alas, the NDA does not seem to have worked, as Kantor has continued to write about leaks. Indeed, I suspect that even revealing the existence of the NDA would violate the NDA. Thus, we are stuck in a leak-loop. There is a better way: the more the Court opens up, the less need there will be for disclosures. Instead of trying to futilely plug the dam to stop leaks, the Court should release a safety valve. The justices can start by holding regular press conferences.  

The Supreme Court justices have an unusual relationship with the press. The Court issues “hard passes” to certain journalists, who have reserved seats to attend the Court’s public sessions. On occasion, the Court issues general press releases. The Chief Justice will sometimes send a surrogate to speak on his behalf, such as his counselor. And on rarer occasions, the Chief Justice releases statements to the press, usually concerning what he perceives as a problem confronting the judiciary.

Individual justices are under no obligation to talk to the press, but they do so on their own terms. When the justices have books to sell, they will allow reporters to interview them, often in their chambers. Justices also do public speaking events, but usually will only take pre-approved questions. The Circuit Justice will usually take friendly questions from other judges at the Circuit Judicial Conferences. Some of these gaggles are recorded; others are not.

In private, justices will also talk to specific reporters off the record. Kantor observed in her article that the Court spokesperson “did not respond to a question about whether the justices have been asked to sign the” NDA. I would bet they did not. The reporter can then disclose some or all of what they learn, though without attribution to a particular justice. A “source close to the Court” is mentioned. A justice will, on rare occasion, publicly chastise the press. For example, Justice Scalia once derided an article by legendary Supreme Court reporter Tony Mauro as “mauronic.” And in the Dick Cheney duckhunt case, Justice Scalia charged that many press outlets did “not even have the facts right” and gave “largely inaccurate and uninformed opinions.” Judges far more commonly berate journalists in private. Judges have even complained to me about my own writings.

The Supreme Court’s relationship with the press is further complicated by leaks. There has been a long, ignominious practice in which justices, or their surrogates, speak to the press about confidential court information. Yet the Court generally will not respond publicly to these leaks. In a rare departure from this practice, the Court acknowledged that the leaked Dobbs draft opinion was “authentic.”

Even though the Supreme Court keeps the press at a distance, the justices are apparently obsessed with coverage of the Court. In 2021, the Court’s Public Information Officer said that “In the past year, we've clipped approximately 10,000 news articles related to the court and the justices, roughly half of them tweets.” Justice Barrett insists that she does not read press coverage about herself, as her husband and assistant screen her social media. I am skeptical of how well this filter works. I have good reason to believe that the Justices keep abreast of what is written about them. One does not become a Supreme Court justice by ignoring what people think about them.

In an ideal world, there would be no need for the justices or their surrogates to leak information to the press. But in the real world, this need exists. In my view, press conferences could be a vehicle to relieve some of that pressure. The justices would not disclose confidential information about the Court, but they could address lingering concerns and perhaps reduce the incentives to leak further.

My proposal for holding press conferences is unconventional, but I think it would be a net positive. At regular intervals, different members of the Supreme Court would hold televised press conferences for the Supreme Court press corps and for alternative media outlets, such as podcasters and bloggers. Under current practice, only the chief justice may speak on behalf of the Court, even when his colleagues may not agree with him. Letting other justices speak could help the Court agree upon an actually unified message. And the chief justice may learn that his colleagues think differently. The justices should draw lots to decide who will host the press conference. Of course, no one could be forced to participate, but I think they might all enjoy it. Several of the justices were skilled oral advocates before joining the bench.

Certain topics would of course be off limits. The justices could not opine on any pending cases. They also could not offer any opinions that could trigger a recusal on some matter. But there are a range of topics the justices could discuss. The justices should be pressed on leaks and on the steps being taken to address them. The Court could no longer hide behind empty press releases. Moreover, I have been critical of Chief Justice Roberts for selectively speaking out on some issues, but not others. If there are regular press conferences, these statements would become more regular, rebutting the charge of selective outrage. There would be a natural conduit for discussing the news of the day.

The justices have not always been hermits. There was an annual practice in which two justices would testify before the House Judiciary Committee. They primarily discussed the Court’s budget and also answered some questions about how the Court operates. But the justices were very quick to decline to answer certain questions. Alas, the last such testimony was in 2019, featuring Justices Samuel Alito and Elena Kagan. The end of these testimonies was perhaps another unnecessary casualty of pandemic preparation. The House should reinstate these hearings. In 2011, Justices Scalia and Stephen Breyer gave a remarkable joint testimony before the Senate Judiciary Committee on the Constitution. I would love to see this tradition restarted. Justices Breyer and Gorsuch had an insightful exchange during the 2024 Federalist Society Convention.

There are certainly potential risks here. Justices may go off script and say the wrong thing. In 1991, Justice Thurgood Marshall held an infamous press conference after he announced his retirement. At the time, the conservative Judge Clarence Thomas was viewed as a potential replacement for the liberal Marshall. A reporter asked Marshall if President George H.W. Bush had an obligation to name a minority justice. Marshall replied that “I don’t think that should be used as an excuse” for “picking the wrong negro.” At least he was honest. And in 2006, Justice Scalia made a vulgar Italian gesture to a reporter by fanning his fingers under his chin. (Come to think of it, I regret that Scalia was never able to hold a press conference. That event would have been fun to watch.)

Other judges have made lesser errors with public statements. Justice Ginsburg was notorious for hinting at pending cases. In June 2012, shortly before the Obamacare case was decided, Ginsburg told the American Constitution Society, “This term has been more than usually taxing.” In 2021, Justice Barrett’s comments at the McConnell Center created some controversy. She seemed to suggest the justices were concerned about public perception of the Supreme Court. Judges are good at asking questions, but poor at answering them. The other justices could benefit from learning how to hone their messages to a general audience. I think this skill would make opinions more readable.

There is another risk: the justices could feel they need to be responsive to the press — an overwhelmingly liberal hegemony. My response? They regrettably already are. Jodi Kantor of the New York Times recently admitted that was the effect, if not the purpose, of her coverage. She was asked if “greater media scrutiny affected the court, the justices or their performance?” Kantor replied, “I just want them to know we're watching them.” I firmly believe that justices respond to media scrutiny.

Who will watch the watchmen? If anything, these press conferences would give the justices a chance to forcefully push back against the unfair attacks on them. This task usually falls to surrogates. Reporters are also far better at asking questions than answering them. I routinely contact reporters who err, and the most common response is somewhere between denial and indignation. On balance, these press conferences would let the American people hear the justices in their own words. And in doing so, the Court would relieve pressure and help to clamp down on leaks. To use another metaphor, perhaps the best remedy for the so-called “shadow” docket is sunlight.

‍Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston, is a contributing editor to Civitas Outlook, and is an adjunct fellow at the Manhattan Institute.