Lawmakers poised to renew push to criminalize Supreme Court leaks – JP
Matthew Tokson, a constitutional law professor at the University of Utah who clerked for the late Justice Ruth Bader Ginsberg and former Justice David Souter, said the justices would be the “ultimate arbiters” of whether such laws were constitutional.
But Tokson said the issues surrounding such a law “get messy very fast,” including whether the law applied to the justices themselves. “In that case do they all recuse themselves because they are all coworkers and collegial with each other? It’s a bit of a mess,” he said.
On top of that, Tokson said such a law would create an “atmosphere of fear and caution among the clerks,” and would likely make the court “even more of a closed society.”
The clerks and others at the Supreme Court regularly talk about legal issues both in and out of the office, Tokson said. “If the barista or the waiter overhears you, is that going to be a crime?” he said.
Shan Wu, a former federal prosecutor, said there’s plenty of existing criminal law to deal with a leak, such as a computer hack of some kind.