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Supreme Court Leak Inquiry Exposes Gray Area of Press Protections


“The norms of confidentiality on the court, they’re not gentle or subtle,” said Allison Orr Larsen, a professor at William and Mary Law School who clerked for Justice David H. Souter. “They’re strongly and repeatedly emphasized.”

As blunt and terrifying as those warnings could also be, they’re informal. So are the foundations that apply to the justices themselves, who’ve been proof against being certain by written procedures on most matters concerning their work.

“They don’t even have written ethics rules for the justices,” said Paul M. Smith, a law professor at Georgetown University who clerked for Justice Lewis F. Powell Jr. The leak, he said, and the give attention to the dearth of those standards after recent revelations in regards to the political activities of Virginia Thomas, the wife of Justice Clarence Thomas, may put more pressure on the court to just accept recent restrictions on the way it operates.

Other legal scholars, including some on the conservative Heritage Foundation, have pointed to quite a few laws that may very well be used to prosecute the leaker and spur the sort of wide-ranging investigation that might entangle the press, court staff and even individual justices. One law that has been used against leakers, in keeping with John Malcolm, a legal expert with the Heritage Foundation, broadly deals with theft, embezzlement and the conversion of “things of value” that belong to the federal government.

None are slam dunks. But First Amendment experts said they might not be surprised if one in all these laws was tested on this case.

RonNell Andersen Jones, a professor on the University of Utah’s S.J. Quinney College of Law who clerked for Justice Sandra Day O’Connor, said that when she and a gaggle of former clerks who text each other heard of the Politico article, their immediate response was that it needed to be a hoax. A leak of this magnitude, all of them understood, is strictly forbidden.

“What it means to be strictly forbidden is about to be tested,” Ms. Andersen Jones added.

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