To a criminal defense lawyer, confidentiality is a core value. It is, for lack of a less religious word, sacred. We know things. We learn things. We possess information that would be of extreme interest to others, whether at a cocktail party or in the courthouse hallway. We have great stories that would fascinate friends and acquaintances alike.

The information is often about people we dislike, maybe even despise, and revealing it will do great harm to people we would love to harm And yet, we will take our stories to our grave. At least I will.

In the New York Times, Jodi Kantor and Adam Liptak write about stories gleaned from “sources” within the Supreme Court. Ironically, just below their byline it says “Jodi Kantor and Adam Liptak welcome tips.” Of course they do. And as reporters, they should.

Last February, Chief Justice John G. Roberts Jr. sent his eight Supreme Court colleagues a confidential memo that radiated frustration and certainty.

The key word there is “confidential.” If it was confidential, what are two New York Times reporters doing writing about it? How is it possible they would be in possession of a confidential memo?

This account draws on details from the justices’ private memos, documentation of the proceedings and interviews with court insiders, both conservative and liberal, who spoke on the condition of anonymity because deliberations are supposed to be kept secret.

It’s not just that “deliberations are supposed to be kept secret,” but that it is understood by all involved that confidentiality is their duty. It is a matter of institutional integrity. It is a matter of honor. And, at least to some, it no longer matters.

First, this leak is far worse than the Dobbs leak. In Dobbs, one or more people exfiltrated a draft opinion from inside the Court, and somehow that opinion made its way to Politico. (Maybe Jodi Kantor can tell us how that happened!) It was devastating for the draft decision to become public, and it nearly led to the assassination of Justice Kavanaugh. But the aftermath of the leak was swift and overwhelming: the Court was placed on lockdown, and a sweeping investigation was launched to find the culprit(s). But the Trump leaks are systematic and thorough. We have insights of confidential memoranda, detailed conversations at conferences, KBJ’s changed vote, Justice Alito losing the Fischer majority, and information about many Roberts clerks were working on the case. This tapestry would require insights from so many different people. Moreover, all of this comes after the Dobbs leak when Chief Justice Roberts (apparently) put strict limitations on access to Court information. What did all of those measures accomplish? Apparently not much.

The necessity of confidentiality may not be obvious to some, for whom the simplistic mantra of transparency applies without regard to the ability of an institution to function and fulfill its purpose within our constitutional scheme. You want to know, and so that’s your only concern. But justices need to be able to discuss, disagree, negotiate, dispute and forge alliances in order to reach an unreviewable decision without fear of outside influence, be it political or violent.

Maybe a justice will be persuaded to switch sides, whether because he or she realizes his original position is wrong, or maybe to blunt the worst of a decision with which he or she disagrees. Or maybe because the institutional benefits of consensus are greater than individual need for self-expression. Or maybe the opposite. Either way, if the justices cannot have a full and unfettered discussion without fear of their musings being publicly outed for the purpose of shaming, embarrassing or undermining their credibility and integrity, they will be denied this critical function.

At Volokh Conspiracy, Josh Blackman, who has had a longstanding obsession with the workings of the Supreme Court, speculates about where these leaks are coming from and what they reveal about the inner workings of the Court. Much as I can appreciate Josh’s interest, I’m far less concerned about what’s going on underneath their robes (sorry, David Lat) than the fact that someone, and perhaps many someones, believe that their desire to spill the beans is of greater importance than the Court’s rule of confidentiality.

Josh speculates that it’s Justice Elena Kagan speaking out of school. He may be right, and if so, at least her decision to do so bears the imprimatur of Senate consent. That she has placed her own interests above that of the Court, her brethren and sistren(?) and, indeed, the nation, is deeply troubling. Of course, Justice Kagan did not come from the trenches, where confidentiality is sacred, but from the Academy where self-indulgence prevails.

But if it’s the kiddies of the Court, the law clerks who will one day parlay their clerkship for a huge bonus check if not an endowed chair, it’s even worse. Who are these pompous little shits to believe their feelings about what confidences should be revealed matter more than the duty to their chambers, to their judge?

Rather than dive too deep into the unknown, the only thing known is that the Supreme Court has sprung at least one, if not more, leak. Once a leak happens, and unless it is closed with extreme prejudice, there can be no certainty that what happens in chambers stays in chambers. This will prove to be a disaster for the Court, and thus for the nation. No matter what paranoid fantasies you hold about the Supreme Court, its integrity in absolutely necessary for our constitutional scheme to work. If you hate SCOTUS now, you will really hate it when the Court is gone.