The New York Times has two stories and a video on the front page today, all of them rolling out new angle of attack on the Supreme Court. See if you can tell what their new buzzword is.
The first article is headlined “How the Supreme Court Secretly Made Itself Even More Secretive.” The video is a condensed version of the first article titled “How the Supreme Court Made Itself More Secretive.”Article number two is headlined “Why The Times Is Expanding Its Supreme Court Coverage” but the subhead reads, “How four reporters are examining the most secretive branch of government — and the nine justices who shape the law.” The news hook here is that the Supreme Court has decided to make clerks signs NDAs, which is something it hadn’t done in the past.
In November of 2024, two weeks after voters returned President Donald Trump to office, Chief Justice John G. Roberts Jr. summoned employees of the U.S. Supreme Court for an unusual announcement. Facing them in a grand conference room beneath ornate chandeliers, he requested they each sign a nondisclosure agreement promising to keep the court’s inner workings secret.
The chief justice acted after a series of unusual leaks of internal court documents, most notably of the decision overturning the right to abortion, and news reports about ethical lapses by the justices. Trust in the institution was languishing at a historic low. Debate was intensifying over whether the black box institution should be more transparent.
Instead, the chief justice tightened the court’s hold on information. Its employees have long been expected to stay silent about what they witness behind the scenes. But starting that autumn, in a move that has not been previously reported, the chief justice converted what was once a norm into a formal contract, according to five people familiar with the shift.
This is classic left-wing coverage of the news. Author Jodi Kantor does her best to soften and fuzz up the reasons for this change. Yes, she mentions the leak of the Dobbs decision but doesn’t say anything about what the motive of the leaker might have been or what happened as a result of the leak:
…in 2022, in a shock to many at the court, someone leaked a draft of the court’s decision overturning the federal right to abortion to Politico, which published the document weeks before the justices had intended to make it public. The court conducted an investigation of its staff but mostly spared the justices, and the source was never publicly identified.
There were only two possibilities for who leaked the decision. Either a liberal on the court leaked it to create pressure on the conservatives to change it before it was final or a conservative leaked it to “lock in” the votes who might have otherwise gone wobbly.
The second answer seems like a stretch to me because the decision was 6-3. In other words, you’d need two of the conservatives to flip to get a significantly different result. Were there two Justices who could have gone wobbly and flipped on this decision? That’s a bit hard to imagine. Plus the final decision was released about 7 weeks after the leak in late June, which is near the end of when the court releases major decisions. So the decision was basically written and ready to go in early May when the leak happened. Could we have had two judges change their minds and write and entirely new decision in the 7-8 weeks before the usual deadline for publication?
The other explanation, that a liberal leaked it to put pressure on the court, seems much more likely to me and also to Justice Alito who wrote Dobbs. Alito said the leak made the conservatives “targets of assassination.” And he was right about that. Protesters showed up outside the homes of most of the conservative justices (but not the liberal ones). And as we all know, Nicholas Roske showed up outside Brett Kavanaugh’s home with the intention of killing him or possibly more than one of the justices. A few months ago Roske was sentenced to 8 years in prison.
So I suspect the leaker was a liberal but it almost doesn’t matter because what happened after the leak is undeniable. Progressives were outraged to the point of publishing the addresses of the conservatives’ homes and coming dangerously close to an actual assassination attempt. Again, Jodi Kantor doesn’t mention Nicholas Roske or the environment created by the leak. Instead, her story is really about the reaction to that leak.
And that’s what I mean by classic left-wing coverage of the news. The left always starts the story, effectively, with the conservative reaction to some new and novel push by the left to gain power. In this case, the leak looks like an attempt to rally the left prior to the decision becoming final. But Kantor’s story is just about the response, specifically the NDAs Chief Justice Roberts put in place after a long investigation failed to prove who had leaked Dobbs (or who was leaking things to Jodi Kantor).
So the actual series of events here is probably this:
- A progressive breaks with long tradition to leak a draft opinion to rile up the left.
- It does rile up the left, nearly to the point of deadly violence.
- The court investigates but can’t find the leaker.
- CJ Roberts makes everyone sign NDAs so that, if it happens again, someone can be prosecuted and likely drummed out of the legal profession.
- Jodi Kantor downplays points 1 and 2 and makes point 4 into a big story about the “secretive” Supreme Court.
It’s nonsense. The court is no more secretive now than it was previously. Deliberations and draft decisions were always secret and were never released prior to decisions. The difference is that now the court is having to take steps to enforce those norms because someone (probably a progressive) decided to violate them in a desperate attempt to save Roe.
Finally, I want to turn to what I think comes next and why “secretive” is the new buzzword about the courts being pushed by the NY Times. Long ago, I wrote about Julian Assange and the views he held about governments and the power of leaks. Assange had a specific theory behind his actions that went like this: Secrecy is a tool used by authoritarians to maintain control. To remove the control of authoritarians, all you need to do is sever their ability to conspire in secret.
Mr. Assange spelled it out in prescient terms in an essay he posted online in November of 2006, the year of WikiLeaks’ founding…
As Mr. Assange saw it, power was held by vast networks of conspirators who shared vital information in secret, giving them a superior understanding of reality that enabled them to hold on to power. The technology revolution, he wrote, was providing the conspirators with the means to achieve what he called an even “higher total conspiratorial power.”
But it was also making them more vulnerable to sabotage, so that a governing conspiracy could be “slowed until it falls, stupefied; unable to comprehend and control the forces in its environment.”
And, believe it or not, the author of that 2017 NY Times article quoted above gave me credit for predicting how Assange’s theories might play out.
No one seemed to grasp what Mr. Assange was hinting at more clearly than the conservative writer John Sexton, who foresaw the events of 2016 in a post that was published on Breitbart News and his own blogin 2010.
“You can take his example further by imagining what would happen to, say, the D.N.C., if it suffered a massive Wikileak of secret data,” Mr. Sexton wrote, referring to Mr. Assange’s essay. “It seems entirely possible that a leak of the contents of their email for one month would be exceedingly damaging to them.”
And here we are, over six years later. Mr. Assange’s essay has resurfaced yet again, after major data breaches of the email accounts of the Democratic National Committee and the Clinton adviser John Podesta, committed, allegedly, by Russian-sponsored hackers and fed to the world via WikiLeaks.
Anyway, the point here is that Assange saw radical transparency (leaks) as a way to effectively limit the power of an organization. And he was right about that. Whether he’s involved or not, leaks are mostly a way to take down or damage an organization. They reveal things that give new ways for opponents of the organization to resist.
So when the NY Times comes out with a bunch of stories about how secretive the Supreme Court is and explaining how they intend to really dig in and investigate, what they’re effectively asking for is a less powerful Supreme Court.
Why would they want that now? They’ll say it’s important for democracy (which dies in darkness), but I think we all know why liberals hate the current Supreme Court. It has everything to do with politics and outcomes. In other words, this is resistance journalism announcing (and praising) itself in today’s paper. The goal here, as Assange explained, is to spill its secrets and thereby take away it’s power. And you can bet that at some point, when liberals are back in the majority, the interest in radical transparency will suddenly wane.
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