Once upon a time, in my lifetime, juries were instructed to not discuss their deliberations with the press after a trial. Now, they line up in front of the mics to tell their stories. Once upon a time, in my lifetime, Grand Jury deliberations were sacred, protected by the Constitution itself. No one was supposed to reveal what went on in them. Then, Ken Starr released the Grand Jury testimony in the Bill Clinton impeachment proceedings. He should have been arrested and tried, but that action would have had to come from the U. S. Attorney’s Office in Washington, and that would have set off accusations that the arrest was partisan, designed to protect the President. So, Ken Starr got away with violating a highly important law espoused by the Constitution.
Once upon a time, ever since it was created, the Supreme Court operated in complete secrecy. No one ever talked about the meetings, negotiations, deliberations and research that went into each justice’s choices and decisions. This was intended to shield the Court from influence and to allow the justices the freedom to confer and argue at will. Now, someone inside the Supreme Court has “leaked” information concerning the deliberations that went on over the Affordable Care Act.
Logic says the leaker was not one of the young lawyers who work as clerks for the justices. In this context, clerk does not mean someone handling the secretarial duties. These clerks are legal researchers who are expected to ferret out the precedents that help a justice reach a ruling. The clerks are at the start of their professional careers. Winning one of the coveted Supreme Court clerkships is a ticket to the big boys club, the best law firms, the most prestigious identities on the business cards. It’s a fair assumption that none of them are stupid enough to risk his/her entire career by talking to a reporter about the internal workings of the Court. Not with over $100,000 in student loans to pay off.
That leaves the justices themselves and their families. As of last night, the money was on Ginni Thomas, wife of Justice Clarence Thomas. She was the founder of a PAC whose sole purpose was the repeal of the Affordable Care Act. Justice Thomas failed to list her income from the PAC on his financial disclosure forms, and refused to recuse himself from this case when it was pointed out that he had a special interest in it. Second on the list is Justice Antonin Scalia, who has come under fire this session for his blatantly political rulings, questions during oral arguments, statements of planned ruling before cases were heard, and outside-the-norm written opinions.
According to the leaker, Chief Justice John Roberts was in the process of writing a majority opinion that the individual mandate in the ACA was unconstitutional when he suddenly changed his mind and voted for its constitutionality with the four “liberal” justices. The law was broken into several pieces to be ruled on, but this was considered the most important, the one the Republican Party was hanging its hopes on.
The way the right wing is reacting, one would think Chief Justice Roberts smothered grandma with an apple pie inside a church during the World Series. He quipped that he was going to have to spend his vacation in an fortification.
Right now, the Clerk of the Supreme Court (the person who really does the nit-picky office stuff) is charged with finding the leak. We may never know the result of that investigation, particularly if the source turns out to be a justice or justice’s spouse. The situation will be a test of John Roberts’ managerial abilities, and the Chief Justice is supposed to be a manager. He (or heaven willing someday, she) is the equivalent of the President and the duo of Speaker of the House and Majority Leader of the Senate. The Chief Justice runs the Judicial Branch, is responsible for the smooth operation of the Judicial Branch, puts his signature on everything from budget requests to evaluations of sitting judges. And it is the Chief Justice who will decide what must be done about the leak.
Something must be done about the leak. That is indisputable. The justices need to have trust restored within their group.
Supreme Court rulings are not like jury trials. They only superficially involve evidence. A case is brought before the Supreme Court to determine its merits according to the Constitution. Was a law passed that violated constitutional rights is the primary type of case. By the time a case gets to the Supreme Court, it might have gone through five lower courts – state district, state appelate, state supreme, federal district and federal appellate. The judges in those five courts may have bounced back in forth between ruling for the plaintiff or the defendant. And at the Supreme Court level, it is not the actions of an individual that are being judged, but the issue.
A case brought before the Supreme Court must first be chosen to be heard by the Court. Then, there will be oral arguments and written briefs on the issues. Then, the justices will deliberate. It can take them months to make a ruling. During that time, they are having their clerks pour over the amassed legal records of this nation on the WestLaw data base (beats the heck out of the libraries full of musty old books). The clerks will present the justices with any relevant ruling in any court on the issue being argued. The justices will confer with each other, they will discuss the merits, they will argue over the merits. And then they will make their decisions and cast their votes. And it must all be done in an atmosphere of pure trust, trust that what they are doing will not be picked apart and dissected by the outside world. They must be able to trust that they can be wise or stupid, flexible or stubborn, grave or flippant in their discussions, and it will not matter, because it will be kept among themselves and their trusted staffs.
During the thirty years my husband spent in the Federal Judicial system, we saw that even at the lowest level, the criminal magistrates, no one inside the court talked to outsiders about their judges or the operation of the courts. The Courts are a closed community. That is why you don’t see headlines in the local paper that such-and-such a Court has a pattern of racial discrimination in assigning employees to their jobs, or gender discrimination, or that such-and-such a judge has a history of sexual harassment. It is all kept within the family. There are channels for lodging complaints. And, with thirty years of imprinting behind me, I just erased the second half of that sentence. That’s the way it is with the Courts.
The term is “independent judiciary.” It means that the judges, from the arraignment judge and the traffic court judge to the justices of the national Supreme Court are free of influence from politics, hopefully free from corruption. An independent judiciary is the cornerstone of a true democracy. In too many parliamentary systems, like Great Britain, the judges are changed whenever there is a change in the ruling party in parliament. They are tied to the politics of their nation. Our founders knew that our judges had to be free from politics in order to function properly. Even in America, we see how electing judges is wrong. When the same sex marriage amendment hit the Georgia Supreme Court, they should have ruled it unconstitutional because it contained two clauses. But they are elected, and they ruled for the amendment to save their seats on the bench.
For our Supreme Court to function at its best, it must function in secret. That may go against everything we believe about open government, but it is the best thing for the Court. The leaker must be disclosed and it must be made clear to our media that this is the one time when outing a leaker is necessary to our democracy. The media should not accept leaks from our courts and should not publish them. This is not a disclosure of secrets that the America public deserve to know. This was a violation of the deepest principles of our Court.