Supreme secrecy: court’s grip on rulings is vicelike

Millions of Americans will be glued to their televisions, smart phones or computers this morning to see whether the nation’s highest court issues a landmark ruling on same-sex marriage.

But the decision might not come today. Or it might. As has been the case for decades, the outcomes of cases remain secret until the court is ready to publish them. The justices likely decided the same-sex marriage issue weeks ago during private conferences. But the ruling might as well have been placed in an impenetrable vault.

While sensitive information flows freely through the sieve of Washington every day, the U.S. Supreme Court may be the last leakproof institution in the capital. The court’s vicelike grip on information only intensifies the high drama that accompanies momentous rulings — such as Bush v. Gore, which decided the 2000 presidential election, and the 2012 decision that upheld most of President Obama’s health care law.

“Their ability to keep things a secret is rather extraordinary,” said Eric Segall, a Georgia State University law professor who closely follows the high court and writes extensively about it.

“But if you think about it, the universe of people at the court who know the decision in advance is rather small,” Segall said. “There are the justices themselves, their law clerks, some staff maybe and the printer. No one else knows, so who’s going to leak it? Compare that to the hundreds of anonymous committee staff members on Capitol Hill or insiders throughout the administration.”

In addition, severe repercussions await any leaker who is found out, Segall said. “Their future could be ruined forever.”

‘He’d make you sign an agreement’

The Supreme Court has about a dozen rulings left this term and is expected to adjourn by the end of this month. So in the next eight days, it is expected to announce decisions on the constitutionality of gay marriage, the legality of subsidies for health insurance under Obamacare and the quality of drugs used for lethal injections.

Just don’t expect any notice on these rulings.

Those who once served as law clerks for justices on the court say that demands of confidentiality are ingrained into them from Day One.

Then-Chief Justice William Rehnquist emphasized the importance of confidentiality when introducing himself to the new law clerks at the beginning of each term, Georgia Supreme Court Justice David Nahmias, who was a law clerk for U.S. Justice Antonin Scalia more than two decades ago, said.

Scalia was even more demanding.

“He’d make you sign an agreement to keep internal deliberations confidential until both you and he have died,” Nahmias said. “He also made it very clear that he would take any breach of confidence as a breach of your ability to be a lawyer.”

Nahmias has seen first-hand how the most sensitive information routinely leaks out in Washington.

After the Sept. 11 attacks, Nahmias was transferred from the U.S. attorney’s office in Atlanta to the Justice Department to help coordinate the investigation of terrorism. One of his duties was to attend classified hearings before a joint House and Senate committee.

‘It would be horribly damaging’

Nahmias recalled one hearing in which then-CIA Director George Tenet pounded his fist on the witness table after warning all those present in the closed-door committee room how damaging it would be if what he’d just said leaked out to the media.

After a lunch break, Nahmias said, he walked back to the committee only to see a TV screen in a congressional office with a CNN report detailing the very information Tenet had said should never be made public.

“We’ve been fortunate the leak culture hasn’t infiltrated the Supreme Court,” Nahmias said. “It would be horribly damaging if it did.”

“The Brethren, Inside the Supreme Court,” a 1979 book by reporters Scott Armstrong and Bob Woodward, is considered to be the first detailed behind-the scenes look at the high court in action. But “The Brethren” disclosed the intrigue after the fact, not before it. And Woodward later said former Justice Potter Stewart, who by that time was dead, was his confidential source on the court.

In 1986, ABC News disclosed that the Supreme Court would strike down the Gramm-Rudman budget-balancing law. This leak, attributed in some news accounts to someone in the printing office, was said to enrage Rehnquist. And no such leaks appear to have happened since.

After the Obamacare decision in 2012, CBS News reported that Chief Justice John Roberts had initially sided with his four conservative colleagues to strike down the law but later joined with the court’s four liberal justices to uphold most it.

‘You sully the whole institution’

This disclosure, after the fact, resonates throughout the court to this day, said Atlanta lawyer Andrew Pinson, who was a law clerk for Justice Clarence Thomas a year ago.

“The specter of that happening was a very big deal because it happens so rarely,” Pinson said.

GSU law professor Lauren Sudeall Lucas, who once clerked for Justice John Paul Stevens, said leaks are almost unheard of because the clerks and staff have such a profound respect for the institution.

The prospect of jeopardizing one’s future also resonates among the law clerks, she said, noting many large law firms give lucrative bonuses to the U.S. Supreme Court law clerks they hire.

“If you leak, you sully the whole institution and no one wants that,” Lucas said. “There’s also the sense that if it’s traced back to you, your career is over.”


BIG DECISIONS REMAIN

As early as today but during the next eight days, the Supreme Court will rule on three major cases, among others:

Obergefell vs. Hodges: Ruling in an Ohio gay marriage case, joined with three others from Kentucky, Tennessee and Michigan, the justices will decide whether same-sex couples have the same right to marry as opposite-sex couples.

King v. Burwell: In this important Affordable Care Act case, the court will decide whether the federal government illegally extended tax credits to millions of people who bought insurance on the government website known HealthCare.gov. If the court finds in the Obama administration’s favor, then little will change. If not, up to 413,000 Georgians could lose the tax credits that made their new insurance affordable.

Glossip v. Gross: A year after a botched execution in Oklahoma, the court will rule on whether the use of a certain drug in lethal injections constitutes “cruel and unusual punishment” under the Eighth Amendment to the Constitution.