Give the Dobbs Leaker a Break

The legal world experienced a kind of low-grade moral panic when someone leaked a draft of Justice Alito’s decision in Dobbs v. Jackson Women’s Health Organization to Politico last March. As of this writing, the Supreme Court’s investigation into the leak is ongoing.

Some reactions could be chalked up to the political swirl surrounding the imminent demise of Roe v. Wade. Leading Republicans called the leak a campaign by “the radical left” to bully the justices and an “insurrection against the Court” akin to January 6. Ted Cruz, a former clerk for Chief Justice Rehnquist, demanded the leaker be fired, prosecuted, and made “to serve real jail time for violating the confidences of the Supreme Court.” Senate Majority Leader Mitch McConnell, often more sober, joined the call for prosecution. An Arizona legislator went further, demanding the leaker suffer the “traitor treatment”—presumably a reference to capital punishment.

This political vehemence was largely dismissed as an effort to change the subject from the opinion itself. But the legal establishment’s righteous indignation was no less pronounced. Most assumed a law clerk sprung the leak and agreed the leaker’s life as a lawyer should end at once, despite the miscreant’s likely being in his or her 20s or early 30s. “That would be career suicide,” one former clerk, who’s now a law professor, was quoted as saying. The offense “should end your membership in [the legal] profession,” a former Kennedy clerk told a reporter, “or prevent it from beginning.” An editor of this journal—a judge I admire and respect—argued in the Wall Street Journal that the leaker can be prosecuted under federal law and should be, given “the solemn institutional expectation that what happens in chambers stays in chambers.”

With the passage of time, perhaps we recognize this as excessive. Every day’s newspaper is chock-full of leaks—from the White House, law enforcement, corporate boardrooms, and university faculty meetings. It would be hard to find an important article on almost any sensitive topic without encountering one. Sometimes the information is even classified or a valuable trade secret—obviously Justice Alito’s draft opinion was neither. Without leaks, we’d be left to a Pravda-like, institutional version of events: often false, more often incomplete, and almost always self-serving.

Do those who demanded imprisonment and professional exile of the Dobbs leaker throw down their papers or close their laptops in disgust every morning, refusing to read on after encountering a leak? Probably not. In fact, we often lionize leakers as courageous truth tellers shining an essential spotlight on corporate or governmental rot. Think Daniel Ellsberg and Mark Felt, Karen Silkwood and Jeffrey Wigand. Very few everyday leakers are jailed or flushed out of their chosen professions.

Over time, the line between traitor-leaker and hero-whistleblower can be hard to locate. Tucker Carlson pilloried the Dobbs leaker a mere 14 months after calling for President Trump to pardon Julian Assange, whom he called a man “in jail for telling the truth.” This although Assange’s publication of mountains of leaked, classified information unquestionably damaged America’s intelligence gathering and diplomatic relations, while the Dobbs leak caused no tangible damage to anyone at all.

The double standard seems to be rooted in the notion that there is something special and unique about a judge’s chambers. That is a product of judges and lawyers unduly sacralizing what we do. Judges need and want the unvarnished and confidential advice of clerks and would like to speak their minds and debate ideas openly at work. This facilitates and improves decision-making and collegiality. Exactly the same is true in every other setting where leaks occur, however. The president also depends on loyalty, discretion, and candid advice. So do corporate executives. Their work isn’t any less important.

More generally, the judiciary and the society it serves might benefit from more transparency rather than less. Confirmation hearings are a charade where nominees say as little as possible. When making recusal decisions, Supreme Court justices act in secret, rarely deigning to explain their decisions or criteria. The public receives no insight at all into the extra-judicial influences that might reasonably be thought to affect their thinking, such as their spouses’ ardent activism on issues related to cases before the Court. Through the now-infamous “shadow docket,” the justices resolve major cases with minimal explanation.

After justices and judges retire, they are under no obligation to preserve their memoranda or other records, unlike executive branch officials and congressional committees. Justice Black burned his papers in an episode his children labeled “Operation Frustrate the Historians.” Most justices leave some portion of their files to one or another archive, but what they choose to convey is entirely up to them, heightening what must be a strong temptation to withhold anything that might even conceivably embarrass. Many justices place onerous restrictions on access; thus, Justice Souter’s papers will remain closed until a half century after his death.

I recently ran into the elevation of confidentiality over history in completing a biography of the judge I clerked for, Irving R. Kaufman of the Second Circuit (Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs, Three Hills Press, 2023). Judge Kaufman endured years of attacks over his controversial decision to sentence Julius and Ethel Rosenberg to death in 1951, and for ex parte contacts with the prosecution that came to light years later. The sense of a judge under siege bred a special protectiveness by former clerks and friends.

Still, by the time I sought to interview former clerks, the judge had been dead for 25 years. Most spoke freely but many still refused, all these years later, insisting that what was done and said in chambers during the previous century was eternally off-limits. Some spoke but edited their conversation and reflexively lowered their voices, as if the judge—a sometimes tyrannical boss—was still listening in the next room.

Fully and accurately understanding the judiciary and its important work requires less zealotry about the privacy of chambers. That sentiment doesn’t absolve the Dobbs leaker, who acted while the ink wasn’t dry. The Dobbs disclosure accomplished nothing, betrayed the expectations of employment, and presumably complicated life at the Court. It should be condemned. But prosecution and professional exclusion for life are extreme and misguided—far out of step with daily life in the other branches of government and overkill for a practice that, on other occasions, we laud as essential to democracy.