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In Stormy Seas, the Court Springs a Leak

July 1, 2012

Strong tea for the Chief Justice.

The Supreme Court, it seems, has sprung a leak. Earlier today, CBS’s Face the Nation ran a story saying that Chief Justice John Roberts switched sides in the healthcare case, initially siding with the conservatives to overturn the mandate before deciding to uphold it under Congress’s taxing power, citing two unnamed sources who had personal knowledge of the justice’s deliberations. The story implies that Roberts’ change was at least in part because of “external forces,” i.e. the news media, but also cites the other conservatives’ unwillingness to strike down only the mandate as well as Roberts’ belief in judicial restraint and the lack of precedent there would be for striking it down.

The big question, then, is who leaked, and why? The Supreme Court prefers to keep its negotiations (very) (highly) confidential so it’s unprecedented for the details of the Supreme Court’s deliberations to leak this soon after the release of a decision. The only people with knowledge of the justice’s deliberations are the justices themselves and their clerks. So who did it? Who stands to benefit? The story casts Justice Roberts in a bad light: he’s portrayed as a “wobbly” flip-flopper influenced by the media who made a political decision to avoid damaging the Court’s credibility. He doesn’t appear to be in control of the Court. In my eyes, that would point to the conservative justices (or their clerks), who probably are nursing a sense of betrayal after Roberts ruined their opportunity to reduce the federal government’s power to what it was during the Hoover Administration. It’s exceedingly unlikely that clerks did it: a Supreme Court clerkship is one of the most sought-after positions in the legal profession and breaking the Court’s confidentiality would be a career-ending move. So maybe it was two of the justices themselves. At the Volokh Conspiracy, Orin Kerr writes that Justices Scalia and Thomas have been interviewed previously by the story’s author, Jan Crawford. Could it have been them? To put it in colloquial terms, two of the justices leaking this story three days after the decision was released would be cray – but the whole story is also cray, so maybe that’s what happened. It’s hard to see what the liberal Justices would have to gain by airing the Court’s dirty laundry after the ruling, and maybe there’s another way that it leaked outside of the Justices and their clerks – but if I had to guess I’d say it was the conservative justices, cray as that is.

The story also Tea Party dynamic is alive and well on the Supreme Court as it is in our national electoral politics. Conservatives are unwilling to compromise in order to achieve better policy outcomes and those who aren’t willing to toe the ultra-conservative line, referred to as “compromisers” or “traitors”, are exiled. Of course, for elected officials, this dynamic results in the party becoming unelectable and eventually returning towards the center, or at least that’s what’s supposed to happen. It’s much more troubling that it’s occurring on the Supreme Court, where justices serve life terms.

Many have described Robert’s opinion as setting the time machine dial for the Hoover Administration without pressing the button. Eventually, we may learn who leaked the story. We may also learn if Roberts really did set the dial, after Scalia & Co. have convinced him to press the button.

Note: Dahlia Lithwick and Barry Friedman have an article at Slate that focuses their considerable experience with the Court on Justice Roberts’ decision, the leak, and what it all means. Their conclusion: of course it was a “political” opinion – judges have to consider the consequences of their decisions. Note, though, that this is still unrobes the judges-as-umpires charade.

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