Notice & Comment

D.C. Circuit Review – Reviewed: Drip Drip Drip

The most important news this week in the world of law is that someone is leaking information about internal Supreme Court deliberations:

This is a bad development. Leaks can destroy collegiality — collegiality that takes a great deal effort to build and which facilitates intellectual engagement. Leaks also can lead to self-censorship; if the justices credibly fear that a conversation may be spun in the media by one of their colleagues, they may be less willing to speak with other justices, which would harm deliberations.

As I’ve thought about the situation, an idea occurred to me. Be warned, though: My idea omits a great deal of nuance and may be wrong.* But I’m not sure it’s wrong. I agree that reporters should report news — that’s their job. But what is the bigger news here to report? The details of internal deliberations? Or the fact that someone — perhaps even a justice — is willing to share those internal deliberations?

Because I don’t know what happened to get this particular scoop and I don’t want to guess (which wouldn’t accomplish anything anyway), let’s move beyond this specific case. Instead, more abstractly, assume two hypothetical scenarios and then think about what should be reported.

Scenario #1: You’re a reporter. Someone — a law clerk, a member of the Supreme Court’s permanent staff, or even a justice — reaches out to you and suggests that he or she is willing to share confidential information about case deliberations. You’ve not promised to keep any conversation with the person confidential. Why wouldn’t it be more newsworthy to report that someone at the Supreme Court offered to share confidential information despite the potential harm that such sharing might have on the institution? Individual cases come and go. But if, say, a justice is willing to risk long-term harm to the Court’s internal deliberations that may affect the process used by other justices in potentially thousands of future cases, don’t we want to know who that person is and understand why he or she is willing to do that? Isn’t that the bigger story?

Scenario #2: You’re still a reporter. This time, no one comes to you. But you still want information. So you start calling clerks, staffers, and justices in an effort to get a scoop. To get someone to speak, you promise confidentiality. If this happens, isn’t it newsworthy how you got the news? It can be difficult to tell whether we are in Scenario #1 or #2, and if we are in Scenario #1, that fact is very significant. So shouldn’t another reporter report on your reporting after a searching investigation? Indeed, perhaps another reporter should try to find a leak in your organization to figure out what exactly happened.

Obviously, I see the dynamic effect of establishing a norm that reporters should report the fact that someone with confidential information about Supreme Court deliberations has approached a reporter with an offer to share that information. Fewer people will approach reporters. That would be bad for reporters, who would have fewer things to say. But for the public, would that be a bad thing — especially if we assume for the sake of argument that the fact that someone with confidential information is willing to divulge that information is the most newsworthy point?

To illustrate the potential damage that leaking internal court deliberations can cause, I’m going to discuss this week’s D.C. Circuit’s cases as if I had leaked information. This is pretend. I don’t really have confidential information. But if I did have it, just imagine the consequences.

In American Hospital Association v. Alex Azar, II, Chief Judge Srinivasan (joined by Judge Millett) upheld HHS’s decision to reduce the reimbursement rate for “340B hospitals.” This is a technical case about statutory interpretation. But note that Judge Pillard dissented:

What happened? Well, in a secret memo, Judge Pillard tried to persuade Judge Millett to join her dissent. That’s why it took the panel so long to decide this case, and that’s also why Pillard went out of her way to cite Mercy Hospital, Inc. v. Azar, a case joined by Millett. Pillard, however, couldn’t get her to flip. But Millett was really on the fence during the whole process and won’t be willing to read the case broadly if it is ever cited again.

In Thompson v. DC, Judge Millett (joined by Judges Pillard and Wilkins) addressed a long-running case about whether the D.C. Lottery Board pushed someone out of his job without due process. This case has been going on for decades and the district court keeps getting reversed. The plaintiff even asked the D.C. Circuit to assign a new judge — a request the Court denied. Here is the inside scoop. I’ve learned from a confidential source that Millett was willing to reassign the case, but the rest of the panel was not. So Millett instead included this two-word sentence three separate times in her opinion: “We reversed.”

In SFPP LP v. FERC, Chief Judge Srinivasan and Judges Rogers and Wilkins issued a per curiam decision about oil pipelines. This case is worth a read if you care about retroactive ratemaking. But you want to a know a secret? I’ve learned that no one wanted to write this opinion so they divvied it up two ways. The first half was Wilkins; the second half was Rogers. Srinivasan was busy on other cases so he didn’t write anything. His law clerk also didn’t want to be assigned this case because everyone was busy but he did it to be a team player. That clerk now is working on a high-profile matter: an en banc memo for In re Flynn.

In National Weather Service Employees Organization v. FLRA, Judge Rogers (joined by Judges Griffith and Katsas) addressed an FLRA order that overturned “an arbitrator’s award in a dispute arising from a termination provision of a collective bargaining agreement.” The Court concluded that the arbitrator FLRA [oops; corrected (8.5.2020)] applied the wrong standard. If you’re curious, I’ve learned from a source that this was opinion was originally assigned to Griffith. Because he’s getting ready to retire, however, Rogers volunteered to pick it up so he could finish other opinions. The opinion, I’ve learned, was not exactly how Griffith would have written it but it was close enough.

In Meritor, Inc. v. EPA Judge Millett (joined by Judges Katsas and Sentelle) upheld the EPA’s decision to place a facility on the National Priorities List.  Behind the scenes, I’ve seen documents suggesting that Katsas and Sentelle were initially quite skeptical but that Millett persuaded them to come along. Katsas, however, insisted that the Court find forfeiture rather than reach the merits of a key argument. The panel disagrees on the merits but agreed after reviewing the record that the issue was forfeited.

Finally, in TIG Insurance Company v. Republic of Argentina, Judge Pillard (joined by Judges Tatel and Sentelle) addressed attachment of a foreign sovereign’s property. Argentina put property up for sale and TIG Insurance attempted to attach it to collect a debt. Argentina then stopped trying to selling the property. Pillard was not pleased with this gamesmanship. (The first draft of this opinion, I’m reliably told, was just brutal. She toned it down though. After all, no need to create an international incident.)

Again, all of my “leaks” are 100% fake. I have no inside information. And to be clear, my pretend “insider information” does not reflect the actual personalities of the judges. I’m just trying to make a point: If judges fear that their colleagues will divulge confidential information about case deliberations, what will happen?

That’s why I’m worried about the Supreme Court.

* A media consultant would probably advise me not to admit uncertainty. Sigh.

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