Why SCOTUS leaks less than the CIA.

WHEN SUPREME COURT Justice Ruth Bader Ginsburg rose to speak to the American Constitution Society on June 15, many in the audience hoped she would hint at the fate of the Affordable Care Act. The justices had voted on Obamacare on March 30, and by mid-June the Court’s opinion, as well as any concurrences or dissents, had been drafted and circulated internally. But despite palpable panting by journalists, no one outside the Court knew what it had decided. And Ginsburg gave no clue. “Those who know don’t talk,” she said. “And those who talk don’t know.”

In the national security bureaucracy, the opposite rule has prevailed: Those who know talk quite a lot. In recent weeks, the press has reported on U.S. cyber-attacks on Iranian nuclear enrichment facilities, a double agent inside the Al Qaeda affiliate in Yemen, and internal deliberations about drone operations. And by all accounts, the primary sources for these revelations were executive branch officials. “The accelerating pace of such disclosures, the sensitivity of the matters in question, and the harm caused to our national security interests is alarming and unacceptable,” charged congressional intelligence committee leaders in rare bipartisan unison. Why is the Court so much better at stopping leaks than the government agencies entrusted with the country’s most critical secrets?

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. “In the secret operations canon it is axiomatic that the probability of leaks escalates exponentially each time a classified document is exposed to another person,” noted former CIA Director Richard Helms in his memoir, A Look Over My Shoulder.

A corollary to the Helms principle is that the likelihood of a leak increases with the time span of the secret. Intelligence operations that last for years (such as the cyber-operation in Iran) are harder to keep quiet than ones that are relatively short and discreet (such as the operation against Osama bin Laden). A long-term operation involves more people over more time and has a better chance of being drawn out through diffuse sourcing—the process, by which journalists gather tidbits of possibly-but-not-necessarily classified information from many people over time that, when pulled together, can form a mosaic of revelation.

Because a Supreme Court term begins in October and ends by July, secrets about the Court’s decisions last at most nine months, and usually (as with the health care case) a much shorter period. Such short-fuse secrets are relatively easy to keep. The Court is less successful in keeping its deliberations secret over the long-term. Some justices make their papers public upon death. Clerks occasionally talk years after the fact—usually anonymously, but sometimes openly, as Edward Lazarus did in his 1998 book, Closed Chambers. But actual leaks of Court decisions are rare. The last one occurred in 1986, when ABC News reporter Tim O’Brien disclosed that the Court had decided to invalidate the Gramm-Rudman-Hollings balanced budget amendment. (The suspected leaker worked in the printer’s office.)