Plugging a Leak

Justice Burger plays detective

Tradition calls for the nine Justices to appear from behind the burgundy curtains of the Supreme Court at exactly 10 a.m. to announce their rulings. That is supposed to be the first public word of a decision, and few journalists have been able, or especially eager, to penetrate the court's curtain of secrecy.*

Last month, however, ABC Correspondent Tim O'Brien reported that the court was about to rule that a journalist's state of mind could be probed in libel suits (the court so ruled two days later). O'Brien afterward disclosed that a lower-court decision involving prisoners' rights would be reversed (the ruling has not yet been announced). Chief Justice Warren Burger was so upset over O'Brien's leaks that he did some detective work. The result: last week John A. Tucci, a Government Printing Office employee who sets Supreme Court rulings in type, was transferred to the U.S. Patent Office. Burger will not say how he concluded that Tucci was the culprit; Tucci says that Burger has no proof.

Burger's sleuthing struck some court watchers as consistent with his deep concern about press coverage of the court. "He intensely dislikes the press," says Georgetown University Law Professor Dennis Hutchinson, a former Supreme Court law clerk. "He is convinced that the way he runs things is right, but when put in a critical light it unnerves him." ABC's O'Brien, 35, a lawyer who worked as a television reporter in New Orleans before joining the network two years ago, may have scored an unmistakable coup in revealing the two decisions, but some journalists wondered whether it was worth Tucci's job. Said a colleague on the Supreme Court beat: "O'Brien wasted a good source for a report that did nothing except to say that he knew a decision before anyone else."

* One exception is National Public Radio Reporter Nina Totenberg, who in 1977 disclosed a day in advance that the court would refuse to hear appeals from three Watergate defendants.

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