Health care ruling looms, but decision still secret

WASHINGTON — It’s the biggest secret in a city known for not keeping them.

The nine Supreme Court justices and more than three dozen other people have kept quiet for more than two months about how the high court is going to rule on the constitutionality of President Obama’s health care overhaul.

This is information that could move markets, turn economies, and greatly affect this fall’s national elections, including the presidential contest between Obama and Republican challenger Mitt Romney.


But unlike the Congress and the executive branch, which seem to leak information willy-nilly, the Supreme Court, from the chief justice down to the lowliest clerk, appears to truly value silence when it comes to upcoming court opinions, big and small.

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No one talks, and that is the way they like it.

Contrast this with the rest of the government, which could not keep secret Obama’s direct role in supervising an unprecedented US cyberattack on Iran’s nuclear facilities or the existence of a double agent inside Al Qaeda’s Yemen branch who tipped the United States to a new design for a bomb to put on a jetliner.

As Republicans air their suspicion that the leaks might be deliberate to enhance the Obama administration’s stature, Attorney General Eric Holder has appointed two US attorneys to investigate those two disclosures and probably additional recent national security leaks.

Because far more people, of necessity, know about such secret national security operations, those investigators must examine hundreds, even thousands, of federal workers who might have known at least a chunk of the guarded information.


The Supreme Court is expected to rule on the Affordable Care Act as early as Monday and almost certainly by Thursday.

Justice Ruth Bader Ginsburg, speaking to a lawyers’ convention June 15, noted a steady stream of ‘‘rumors and fifth-hand accounts’’ in the media about what the high court was likely to do.

‘‘My favorite among the press pieces wisely observed: ‘At the Supreme Court . . . those who know don’t talk, and those who talk don’t know,’ ’’ Ginsburg said.

The justices, of course, know, having officially voted on the results the same week they heard arguments. But they are not the only ones in the loop: Each of the nine justices has four clerks who know not only how their justice voted but also how the other justices stand, because these clerks help research and craft the majority opinions and dissents that are circulated for justices to sign if they agree.

In addition to these 45 people surely in the know, there are an assorted number of secretaries, aides, security guards, janitors, support staff, and family members keenly attuned to the inner workings of the Supreme Court’s upper floors, where the justices keep their chambers. At the last moment possible, printers who prepare the paper opinions to be handed out will know.


If any of these people also know anything about how the case is going to come out, they are not talking.

‘My favorite among the press pieces wisely observed: “At the Supreme Court . . . those who know don’t talk, and those who talk don’t know.’’ ’

Unlike the president, who has to be reelected every four years and needs positive publicity to help, the justices have lifetime appointments and do not need favorable publicity to keep their jobs.

And unlike the other constitutional branches, the justices rarely appear on television and do not even allow cameras inside their main workplace, the court.

But that silence holds firm, even beyond the justices. Those 36 clerks, who have inside knowledge of the court’s deliberations, are just as mum as their bosses despite growing up in the Internet age of bloggers, camera phones, social media, and instantly free-flowing information.

Clerks are warned from day one not to reveal anything about their work, said lawyer Stephen Miller, who clerked for Justice Antonin Scalia.

Supreme Court clerkships are among the most highly sought positions for up-and-coming lawyers in the nation because they usually lead to six-figure salaries upon completion.

Any clerk caught revealing information would be fired and immediately ostracized in the legal profession, Miller said. No law firm would be willing to take a chance on a lawyer who talks or leaks information to outsiders without permission.

If the leaking clerk is not caught, the entire class would have that stigma, leading to strong peer pressure to stay silent, he said.

The court’s mystique and reputation for silence means there have been no special warnings from the justices for employees not to spill the beans on the health care decision.

Clerks, secretaries, aides, janitors, and all of the other staff know they are not supposed to talk about anything the court does until the official announcement.

That does not mean that the court has always been perfect at withholding information until its formal release.

For example, the court inadvertently posted opinions and orders on its official website about a half hour too soon in December.

The last apparent leak occurred more than 30 years ago, when Tim O’Brien, then a reporter for ABC News, informed viewers that the court planned to issue a particular opinion the following day.

Chief Justice Warren Burger accused an employee in the printing shop of tipping O’Brien and had the employee transferred to a different job.