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Supreme Court Leak Inquiry Exposes Gray Area of Press Protections

“The norms of confidentiality at 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 are strongly and repeatedly emphasized.”

As blunt and terrifying as those warnings may be, they are informal. So are the rules that apply to the justices themselves, who have been resistant to being bound 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 focus on the lack of those standards after recent revelations about the political activities of Virginia Thomas, the wife of Justice Clarence Thomas, may put more pressure on the court to accept new restrictions on how it operates.

Other legal scholars, including some at the conservative Heritage Foundation, have pointed to a number of laws that could be used to prosecute the leaker and spur the kind of wide-ranging investigation that could entangle the press, court staff and even individual justices. One law that has been used against leakers, according to 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 government.

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

RonNell Andersen Jones, a professor at 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 group of former clerks who text one another heard of the Politico article, their immediate reaction was that it had to be a hoax. A leak of this magnitude, they all understood, is strictly forbidden.

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

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