A Supreme Court report this week on the leak of a draft opinion has revitalized an effort from two Louisiana Republicans to criminalize leaking information from the high court, a step some experts say could get messy if it became law.
Though the report Thursday from Marshal of the Supreme Court Gail A. Curley said officials did not find out who may have leaked the opinion last year, it did encourage the Supreme Court to engage in “consideration” of legislation from Rep. Mike Johnson and Sen. Bill Cassidy as part of efforts to prevent another leak.
The two lawmakers took the report as a starting pistol this session to reintroduce their bills to make a Supreme Court leak a felony that could carry either five or 10 years in prison.
Those measures did not move last Congress, when the leak in one of the most high-profile cases in decades indicated that a majority of the justices had voted in favor of overturning the constitutional right to an abortion.
Johnson, in a statement, called the report “an unfortunate development” for the Supreme Court, and his office announced Friday he would reintroduce his legislation. The version introduced last session would make disclosure of notes, internal communications or documents of the Supreme Court a federal felony punishable by up to five years in prison.
“Congress should now follow through on the Supreme Court Marshal’s implicit endorsement of legislation to expressly prohibit such leaks, in order to better protect the future operations of our nation’s highest court,” Johnson’s statement said.
Cassidy expressed a similar sentiment in a statement Thursday, saying he would reintroduce his bill to “hold those who undermine the integrity of the Court accountable.” Under the version of the bill Cassidy proposed last session, a Supreme Court employee could face up to 10 years in prison for leaking a draft opinion.
Court workers could also face prison time if they leak certain employee communication or the “personal information” of Supreme Court justices that “is not otherwise legally available to the public,” that bill stated.
“This is important and needed legislation since it was mentioned multiple times in the Marshal’s report,” Cassidy said in the statement.
The federal judiciary previously has backed some legislation through the Administrative Office of the U.S. Courts.
Last year, the judiciary asked Congress to pass a bill to allow federal judges to request their personal information, like addresses and family members’ places of employment, be scrubbed from public-facing websites. That bill passed Congress as part of a defense authorization bill.
A representative for the Administrative Office of the U.S. Courts referred questions to the Supreme Court, where officials could not immediately be reached for comment Friday.
Congress has already passed some legislation in response to the leak. The House passed a Senate bill in June to expand Supreme Court Police protection to justices’ family members outside of Washington.
Changing the court
Curley mentioned the Johnson and Cassidy bills in two places in her report, when discussing ways in which the leak of the draft could be illegal and in recommendations to prevent another such leak.
Several legal experts said explicitly criminalizing leaks from the high court would be an overreaction and could change how the insular court functions.
Matthew Tokson, a constitutional law professor at the University of Utah who clerked for the late Justice Ruth Bader Ginsberg and former Justice David Souter, said the justices would be the “ultimate arbiters” of whether such laws were constitutional.
But Tokson said the issues surrounding such a law “get messy very fast,” including whether the law applied to the justices themselves. “In that case do they all recuse themselves because they are all coworkers and collegial with each other? It’s a bit of a mess,” he said.
On top of that, Tokson said such a law would create an “atmosphere of fear and caution among the clerks,” and would likely make the court “even more of a closed society.”
The clerks and others at the Supreme Court regularly talk about legal issues both in and out of the office, Tokson said. “If the barista or the waiter overhears you, is that going to be a crime?” he said.
Shan Wu, a former federal prosecutor, said there’s plenty of existing criminal law to deal with a leak, such as a computer hack of some kind.
“I think it is completely out of place that the Supreme Court’s investigative report would conclude that they should consider supporting such a piece of legislation,” Wu said.
Daniel Epps, a law professor at Washington University in St. Louis and a former high court clerk for retired Justice Anthony M. Kennedy, said legislation would make the leaking of a draft opinion slightly less likely to happen again.
Epps said he could see a case for legislation being necessary, but he expressed doubts that a measure would change the culture of the court, in part because leaks are so rare.
“I tend to think just because it happens so rarely, and that the incentives are mainly driven by other career considerations, I’m not persuaded that it would make that much of a difference year to year,” Epps said.
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