CBS news has a truly remarkable story by Jan Crawford purporting to supply inside details of the Supreme Court’s health care deliberations – specifically, that the Chief Justice initially voted to strike down the health care law, but then later switched his vote – based on “two sources with specific knowledge of the deliberations.” If you haven’t read it yet, do so now. It’s an awesome read.
This is a remarkable development – unprecedented, in fact, at least in recent times, as far as I’m aware (some details of Bush v. Gore leaked out, but that was years after the decision came down). Simply put, the Supreme Court never leaks. And yet, here we are.
So here’s the big question: who was it? The level of detail offered suggests it wasn’t support staff. It was likely either a law clerk, or one of the Justices themselves. Orin Kerr over at Volokh offers a similar assessment.
Personally, I think the Justice theory is unlikely, since if that got out, it would be a national scandal. Furthermore, if a Justice was known to leak deliberations to the press, it’s hard to imagine that the Justice’s colleagues would ever trust him or her again, which would make it basically impossible to do the job.
That leaves the law clerks. Now, the law clerks are strictly instructed never, ever to speak to the press. Everybody knows the potential costs – as Kerr mentions, “[i]f clerks did this, it was just crazy: A clerk who leaked this and is identified has likely made a career-ending move.”
But what if the clerk’s boss OK’d it? That is, what if, say, Justice Scalia authorized one of his clerks to talk to a reporter about the deliberations? Then, arguably, the clerk hasn’t gone rogue, which might ameliorate the potential damage to the clerk’s career (at least within certain circles). And it’s possible to imagine the four conservatives being so enraged by the Chief’s late-in-the-game switch that they would stoop to tactics that would be unthinkable in normal circumstances.
Another thing: the fact that Crawford had two sources is extraordinary. The likelihood that one clerk would go rogue is remote; the likelihood that two would simultaneously do so, with all the potential costs to them, seems vanishingly small … unless they were authorized. And one source might not have been enough for Crawford to write the story she wrote. Which almost makes one think that the leaks were orchestrated.
I don’t know … as I write this, it seems far-fetched, and I suppose a Justice authorizing his or her clerks to talk to the press could cause as much reputational and collegial damage as doing so him/herself. And yet, Crawford got two people to talk, and there just aren’t very many possibilities. Today must have been one hell of a work day at the Court.