The rumor mill was abuzz on Wednesday: the Supreme Court was about to release King v. Burwell! Those “in the know” knew so!
But the Court didn’t hand King down yesterday. Those of us who follow the Court closely were unsurprised.
Why? Because the Supreme Court doesn’t leak. Or, to be more precise, it’s exceedingly rare for word about a pending decision to leak from the Court. (After-the-fact leaks about internal deliberations are more common, though still rare.) To be sure, leaks can happen. According to a blow-by-blow account by Josh Blackman, word got out about a few cases in the early 1980s, culminating in a leak in 1986 that the Court was poised to strike down a law to balance the budget.
Since then, however, there have been no confirmed reports of pre-decision leaks from the Supreme Court. The only exception is the last Affordable Care Act case, NFIB v. Sebelius. Inside information apparently did leak about the outcome before the opinion was released, and conservative commentators began cajoling Chief Justice Roberts not to get soft. After the decision came down, Jan Crawford published an exposé about the raw internal fights over the case.
But just because there was a leak during the last ACA case doesn’t mean there will be a leak this time. To the contrary, the Court keeps mum about almost all of the cases—even monumentally important cases—that it considers. I’d expect it to keep mum here, too.
Why can the Court keep secrets when other Washington institutions can’t? Institutional and personal loyalty is one explanation. From the justices’ perspective, confidentiality enables frank deliberations and lends legitimacy to the Court’s decisions. Most clerks and employees are honored to work at the Court; that’s certainly how I felt when I clerked for Justice Stevens. They would be appalled at the suggestion that they might violate its strict confidentiality rules.
As important, there aren’t good incentives to leak. As David Pozen has expertly explained, executive branch-officials and legislators use leaks as part of a broader political strategy. A well-timed leak can put your opponents on the defensive or alert your external supporters of the need to mobilize. But that kind of outside pressure isn’t likely to change a justice’s mind in a pending case.
In addition, the relatively small number of people who work at the Court makes it easier to identify a leak’s source—and the consequences for a leaker are severe. For the clerks, betraying a justice’s trust after the good fortune of landing a clerkship would bring a swift end to a promising career. And employees responsible for leaks in the past have been promptly sacked.
The Court thus leaks so rarely that it’s safest to ignore any rumors you hear about when it will act or what it might say. We’ll only know for sure when we get the opinion.