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.
Christopher says
Here is a piece on Lawrence O’Donnell’s site and there was more just a few minutes ago on his show.
David says
the theory that Roberts switched his vote has been around since a couple of hours after the opinion was released – I noted it in this post. That’s happened before – it’s not that big a deal.
The big news here is the leak. That simply never happens.
paulsimmons says
Back in 1979, Bob Woodward wrote an insider book about the Supreme Court. Given all the coverage therein about the Justices’ personal and professional opinions about their colleagues, either the Court or their clerks (probably both) were leaking like sieves.
David says
but (a) that was many years ago, and (b) it was years after the fact, like the Bush v. Gore leak that I noted in the post. This is literally days after the opinion was handed down. All the law clerks who were at work last week were at work yesterday. That’s unprecedented to my knowledge.
paulsimmons says
I’ll concede your first point without qualification.
I have a minor quibble about point (b) though.
While the specific cases cited in The Brethren were decided long before Woodward’s book went to press, the book cited and discussed the existing opinions of SCOTUS Justices regarding their colleagues. In that sense the book’s sources leaked in real time.
Ryan says
based on the fact that Scalia had a few lingering pieces in his dissent that labelled the other side as the dissent, ie he either missed those edits or ‘missed’ them on purpose.
Personally, while I’d like to believe none of the justices would be capable of leaks, what in Scalia’s recent actions and temperament makes anyone all that confident that he wouldn’t leak or get one of his clerks to leak?
Justice Tea Party Grumpy Pants is a walking disaster of a SCOTUS justice and seems to be dipping into senility in his old age.
farnkoff says
Is it illegal to leak Supreme Court deliberations? If not, then with all due respect, I guess my question is “who cares?” This goes a little bit to the decline in respect for government, I guess, which is characteristic of our time. Does anybody care about “traditions” any more? What’s more, should they care? Has respect for traditions, protocol, civility, and so forth helped progressives in recent years? Certainly the current conservatives will dispense with anything and everything (traditions, scruples, respect for offices, etc) that impedes the pursuit of their own agenda.
The idea that Supreme Court deliberations should be shrouded in secrecy is a relic of a time when people held the Justices in some kind of semi-religious awe, like they actually had some special wisdom beyond mere political opinions.
I wonder whether this would even be career suicide nowadays. Why wouldn’t the Koch brothers hire a former law clerk who helped cast aspersions on an Obama victory?
David says
it’s inside baseball. But for those (like me) who have worked at the Court, and for those who follow it closely, it’s a pretty huge story. And it actually does matter that decisions not leak out early – among other things, they can move markets. That’s not what happened here – this is more along the lines of a People Magazine exposé than anything else. Still, it’s a big deal.
mike_cote says
or didactic, I really wish people would stop referring to it as a vote. It is a ruling or a finding. Referring to it as a vote makes it appear as though the members of SCOTUS are arbitrarily choosing a preference, rather than finding a law constitutional or not. To me, saying “Vote” in this case plays into the idiotic Tea Party wackos’ narrative.
mannygoldstein says
and would like to be told if I am…
Bush v. Gore seemed perfectly political. Citizen’s United seemed even worse – it looks to this layman that the fringe-right justices used Citizen’s to spearhead a purely-political agenda by ruling on questions that weren’t really asked.
If that’s true, and again I’d love to find out that it’s not, then the Court has gone off the rails, and all bets are off regarding the behavior and ethics of those justices that have used their positions to wantonly push political agendas. Almost nothing would be a surprise at this point.
Christopher says
Yes, Bush v. Gore was political. Two telltale signs were the majority’s willingness to engage in a political question which conservatives would generally leave to the states, and the fact that they explicitly said it could never be used as precedent.
Citizens United being political is a much tougher case, IMO. First, the justices themselves not being elected or having to face election, don’t really have a dog in that fight themselves. Second, I for one can understand the logic behind the idea that if “Congress shall make no law…abridging freedom of speech” that includes laws preventing the expense of funds to produce said speech. That said, seeing the effects of that ruling have led me to now support a constitutional amendment to remedy that.
mannygoldstein says
In Bush v. Gore, the court was asked to decide an issue. They decided that issue, although along partisan lines and, as you point out, in a way that basically says “this isn’t law – it’s politics – don’t confuse this with law in the future”.
In Citizen’s United, the court was asked to decide a narrow issue. Out of nowhere, they used it to not only decide a very, very broad issue that they were not asked to decide – they overturned a centuries worth of settled law that had been used to decide numerous cases. They ruled that a corporation is a person.
Some highlights from Justice Stevens’ dissent:
Interesting article: http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin
Christopher says
According to a piece in Salon by Lawrence O’Donnell’s guest both tonight and last night.