Silence is Golden (and Green)

As we spend another early morning half-focused on SCOTUSBlog in case the Supreme Court is ready to tell us whether we get to keep the health care reforms enacted by Congress in 2010, it’s hard not to marvel at the mysterious power of the Supremes to shroud their deliberations in mystery and suspense.

Over the weekend at TNR Harvard law professor Jack Goldsmith examined the relatively “leakproof” nature of the Court as compared to, say, the executive branch of the federal government and provided some fairly tangible reasons:

One answer is that the Supreme Court has fewer secrets than the executive branch and fewer people who know about each one. Only 70 or so people inside the Court—the justices, their clerks and senior staff, and a few Court employees—would be privy to the outcome of the health care case prior to its announcement. By contrast, more than 4.2 million people—almost all located in or associated with the executive branch—hold security clearances. The circle of secrecy for any particular sensitive operation is much smaller, but typically includes hundreds of people, often more.

But the most compelling explanation for Court secrecy offered by Goldsmith is the vast personal financial stake in silence that the most likely leakers–law clerks–share:

Law clerks also have a personal incentive to keep quiet. After one year at the Court, clerks can fetch hundreds of thousands of dollars in signing bonuses from law firms and are all but guaranteed successful careers. Leaking the Court’s decisions is one of the few ways to screw up these prospects. The leaker would have a hard time obtaining or keeping a license to practice law. And he or she would establish a reputation for irresponsible gabbing in a profession that places a super-high premium on the ability to keep confidences. No clerk wants to take these risks, especially since the chance of getting caught is relatively high.

Clerks with an ax to grind, of course, can always dish to legal writers well after the fact about the inner workings of the Court, the follies of Justices they don’t like, and the significance of particular decisions and particular opinions. But so long as they are in the great law-making and money-making machine itself, the inhibitions to chattiness constantly reinforced by rule, admonition, and peer pressure are greatly enhanced by the pot o’ gold at the end of the clerkship that often means a career where one’s choices are typically between power and leisure, with material success taken for granted. No wonder they rarely spill the beans to the grubby journalists whose own personal prospects are so very different.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.