The Supreme Court recently released its report on the leaking of the draft Dobbs decision. Spoiler alert: they don’t know who did it. I have to admit I have not actually read the report, though I have read or listened to the opinions of many people who (may) have. The main takeaway for me is that the chances of a tv show about the Marshal of the Supreme Court have gone way down. Sad.
Of more interest to this blog, however, is the suggestion that Congress, specifically the House Judiciary Committee, may take up the slack and launch its own investigation of the matter. If so, this will raise some important and unresolved questions about the scope of congressional authority to probe the activities of the judicial branch. As discussed below, it may be more difficult for the committee to get information about this matter than it anticipates.
A little more than a decade ago we discussed (see here, here and here) Newt Gingrich’s proposal that Congress hold “judicial accountability hearings” in which federal judges would be summoned to appear before Congress to be questioned (and, perhaps more importantly, berated) about controversial decisions they had issued. One point that emerged from this discussion was that there are very few historical instances of attempts by legislatures to compel the appearance of judges or the production of information from the judiciary. In one such case in 1953 a House committee subpoenaed a federal district judge to testify, in response to which the judges of that district informed the committee that “we are unwilling that a Judge of this Court appear before your Committee and testify with respect to any Judicial proceedings. Statement of the Judges, 14 FRD 335 (N.D. Ca. 1953). The judges went on to say “[t]he Constitution does not contemplate that such matters be reviewed by the Legislative Branch, [and] as we know of no instance in our history where a committee such as yours has summoned a member of the Federal Judiciary.” Id. (cleaned up).
The rarity of such cases is further evidenced by a 2006 Connecticut state court proceeding, Sullivan v. McDonald, in which the state legislature subpoenaed a justice of the state supreme court regarding the timing of a decision to release to the public a particular court opinion. The judge hearing the motion to quash the subpoena observed that “[i]t appears to the court that there have only been two prior instances, in the history of the country, in which a legislative body has ever attempted to subpoena a judge.” One of these was the 1953 case that led to the Statement of the Judges and the other, which also occurred in 1953, involved a HUAC subpoena to U.S. Supreme Court Justice Tom C. Clark (who declined to appear on separation of powers grounds).
Although there is very little direct precedent in this area, it seems like a safe bet that courts would maintain that legislative inquiry into judicial decisionmaking violates the separation of powers or, at the very least, is subject to a strong presumptive privilege analogous to executive privilege. Here it is worth noting that the late Chief Justice Rehnquist asserted in his book on impeachment that the acquittal of Samuel Chase by the Senate established a precedent that impeachment would not be used against judges for their judicial opinions and “assured the independence of federal judges from congressional oversight of the decisions they made in the cases that came before them.” Grand Inquests, p. 114. Suffice to say that Rehnquist and Gingrich did not see eye to eye on this subject.
The same level of protection would presumably not be accorded to the performance of administrative or other non-judicial functions. Cf. Forrester v. White, 484 U.S. 219, 224-228 (1988) (holding that a state court judge was not entitled to absolute immunity from civil damages for decisions made in an administrative capacity). It is, however, possible that judges would claim some sort of immunity from being compelled to appear to testify before Congress even regarding administrative matters. Thus, for example, in Sullivan the court granted a motion to quash even though the subpoena related to an administrative matter (the timing of the release of the opinion), rather than the content of the opinion or any other judicial act. In so ruling the court stated that it could not countenance, outside the context of impeachment, “unbridled power in any legislative committee to compel the attendance of sitting judicial officers.” (Nevertheless, the court encouraged voluntary compliance with the legislature’s legitimate informational needs, and the Connecticut justice ultimately testified voluntarily.)
It is unlikely that the House Judiciary Committee would attempt to compel any justice to appear and testify regarding the Dobbs leak. (One could imagine, though, the committee asking justices to answer written questions or sign affidavits denying involvement in the leak.) That leaves four potential sources of information for the committee: (1) Court documents related to the leak, including materials prepared or accumulated during the internal investigation; (2) current Court personnel; (3) former Court personnel, particularly law clerks; and (4) sources of information entirely outside the judicial branch.
Because the leak of a draft judicial opinion is in no sense a judicial act, and indeed is not even the exercise of an administrative or other proper function of the judicial branch, it seems clear that there is no constitutional privilege that could be asserted to block congressional inquiries into the leak so long as they do not seek to probe the judicial decisionmaking process. The Court probably also would object to disclosure of its internal investigative work product based on the deliberative process privilege (which is generally understood to be a common law privilege but arguably has a constitutional foundation). With those caveats, however, Congress should be able to get access to the first three categories of information.
At least it should have been able to get access to this information prior to the Supreme Court’s decision in Trump v. Mazars, 591 U.S. __, 140 S.Ct. 2019 (2020). In that case the Court held that congressional subpoenas seeking the president’s financial information raised significant separation of powers issues even though the information itself was not protected by any constitutional or common law privilege and was personal rather than governmental in nature. The Court reasoned that allowing Congress an unlimited power to subpoena the president’s personal information would give it undue power to “’exert an imperious controul’ over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared.” 140 S.Ct. at 2034 (quoting The Federalist No. 71, at 484 (A. Hamilton)). It therefore set forth a series of factors to consider to determine whether the information sought by the subpoena truly warranted the significant step of subpoenaing presidential information.
Although Mazars involved presidential rather than judicial information, it is not difficult to imagine how the Court’s reasoning could be applied to a legislative subpoena for the latter. In fact, it is not necessary to imagine this because there is a case in which precisely that issue was presented, though involving a state legislative subpoena.
In McLaughlin v. Montana State Legislature, 2021 MT 178 (2021), the Montana Supreme Court quashed legislative subpoenas issued to the court administrator of the Montana Judicial Branch seeking electronic records relating to a poll that the administrator had conducted of Montana judges regarding their opinions on a pending legislative measure. The court relied heavily on Mazars, which it explained had “announc[ed] a non-exhaustive series of safeguards . . . when the legislative subpoena authority is directed at another branch of government.” Applying these safeguards, the Montana court found that none of the legislative purposes advanced by the legislature were sufficient to support the subpoenas.
For example, one of the legislative purposes identified by the legislature was to determine whether the court administrator or judges had deleted emails or other documents relating to the poll, whether such deletions were in violation of state law and policy, and whether legislation should be enacting regarding the judicial branch’s records retention protocols. The Montana court viewed this purpose as “problematic” because “[a]ddressing alleged violations of existing law is an enforcement matter entrusted to the executive, not to the legislative, branch of government; it is therefore not a valid legislative purpose.” Furthermore, the court concluded that there was no existing state law or policy requiring the retention of the types of documents at issue. One might think that would be reason for the legislature to consider whether new legislation was necessary, but the court found that the legislature had not adequately identified its aims and explained the connection between the subject of its investigation and the evidence it was seeking. In addition, the court found that there were other sources of information, such as the judiciary’s publicly available records retention policies, which could serve the purpose of informing the legislature about the judiciary’s practices and policies. The court observed, somewhat archly, that “[t]he Legislature has not suggested that the Judicial Branch’s policies are not available to the public, that its efforts to seek information on Judicial Branch policy and practice have been rebuffed, or that it is otherwise incapable of understanding Judicial Branch retention practices and policies without resorting to a subpoena of Judicial Branch electronic correspondence.”
Whatever the legal merits of the Montana case, one gets the sense that the Montana Supreme Court was not exactly a disinterested observer of the controversy. This point emerges even more clearly from the two concurring opinions in the case. Justice McKinnon states that the legislative subpoena “was blatantly designed to interfere with, if not malign, a co-equal and independent branch of government.” Justice Sandefur was even harsher in his rhetoric, accusing the legislature of a “sinister” motive to attack the independence of the nonpartisan judiciary “in an effort to attain unitary, unfettered—in effect, authoritarian— power, unconstrained by constitutional limits.”
In any event, you get the idea how the Mazars factors could be used by a hostile or uncooperative judiciary to block Congress’s investigation of the Dobbs leak. A court could say that the job of determining whether the leak violated any law or policy is a law enforcement function that is not for Congress to exercise. If Congress says that it wishes to consider legislation to prevent future leaks, it might say that Congress does not need to identify the specific leaker in order to consider such legislation.
Perhaps most intriguingly, a court might say that if Congress believes it needs to identify the leaker, it should at least be required to initially go to the fourth source of information to see if it can obtain the information it needs without invading the prerogatives of the judiciary. After all, the only known individuals who can (almost certainly) identify the leaker are not current or former judicial personnel, but members of the fourth estate. That is to say, under one interpretation of Mazars Congress would be required to try to compel Josh Gerstein, Alex Ward, and/or Kyle Cheney of Politico to provide the information it seeks before it could issue subpoenas to the judicial branch.
One noted legal commentator even suggests Congress could put these reporters in jail if they refuse to answer its questions. Which, surprisingly, Congress actually has the power to do.