The Marble Palace Blog: At Canada's Supreme Court, There Are No Leaks

Imagine this: Journalists who cover the Supreme Court are ushered into a room. They peruse a Supreme Court decision before it’s released to the public. A designated “Executive Legal Officer” briefs the journalists about the case and the outcome.

But no one jumps the gun by leaking the content of the decision. Why? Because the journalists are in a “lock-up,” surrendering their cellphones temporarily so they cannot contact their newsrooms. Later in the day, the decision is made public, and the journalists churn out their stories.

The Supreme Court I’m referring to is the Supreme Court of Canada. The justices of that court have committed themselves to openness and access for journalists, believing the news media are the most important conduit between the court and the public. “The freedom of the press to report on judicial proceedings is a core value,” the court has stated.

In light of the bombshell leak of the U.S. Supreme Court’s draft abortion opinion last week, I contacted the Canadian high court and asked if they’ve had any trouble with leaks, especially with the lock-up arrangement that gives journalists a peek preview. Renée Maria Tremblay, the deputy executive legal officer, replied, “I confirm that, to our knowledge, no such leak has occurred at the Supreme Court of Canada.”

David Schneiderman, a law professor at the University of Toronto, said that a leak of a draft opinion would be unlikely at Canada’s Supreme Court because “the court, its clerks and the legal community are not as divided as in the U.S.” Schneiderman, co-author of a book about media coverage of the Supreme Court of Canada, added that the lock-up is “a much better way of informing the press and the public about what is going on. We will not have reporters thumbing through a ruling on live TV on the courthouse steps, as I recall happened in Bush v. Gore.”

During the whirlwind of the controversy over the Alito leak, I turned toward Canada mainly because of a new law review article titled “The Supreme Court and the People: Communicating Decisions to the Public,” written by Loyola University Chicago School of Law professor Barry Sullivan and Ramon Feldbrin, a JSD candidate at the University of Chicago Law School.

The thrust of the article is that in various degrees with other countries such as Canada, Germany and Israel, the U.S. Supreme Court has done a mixed job of making its procedures and decisions understandable and accessible to the public and the press. The Alito leak is unlikely to improve the situation in the future.

“Over the years, the court’s decisions have become more complex, prolix, and fractured, making it difficult and time-consuming for anyone outside the professional elites to determine what the court has held,” the authors said in the article. “As a result, the court’s interpretations of the Constitution remain shrouded in mystery and beyond the ken of many,” including journalists.

Sullivan said the trend has been exacerbated by the growth of the so-called shadow docket, whereby Supreme Court decisions are handed down with scant, if any, explanation of the reasoning behind their rulings.

In an interview, Sullivan said that when he circulated his article to others, he got some pushback about Canada’s lock-up procedure because it seemed so obvious that at the U.S. Supreme Court, a similar lock-up would “just lead to leaks.” And when it comes to helping journalists do their jobs, Sullivan finds the justices to be aloof and indifferent.

In contrast with the Canadian commitment toward public access, at the U.S. Supreme Court, “secrecy is part of the job,” as a recent Associated Press article put it. For example, unlike presidents who make their health status public yearly, most justices keep their medical conditions private.

After Justice Antonin Scalia died in 2016 and his health problems were made public, I asked all current justices about their own health. Speaking for his colleagues, Chief Justice John Roberts Jr. responded that the court will provide health information “when a need to inform the public arises.”