By Sam Baker - 07/04/12 10:00 AM EDT
Supreme Court observers are shocked at the leaks that are flowing from the high court's chambers in the wake of its landmark healthcare decision.
In contrast to Congress, which leaks like a sieve, and the White House, which has dripped out tidbits of information from time to time, the court has a reputation as leak-proof, which is a key part of its above-the-fray image.
The substance of the leaks is not especially scandalous: Chief Justice John Roberts initially sided with the court’s conservative members, but changed his vote to join with the court’s liberals in a 5-4 decision upholding President Obama’s healthcare law.
But the fact that those details leaked at all has legal circles parsing every detail in an effort to guess who talked.
“The fact of the leak is shocking,” said George Washington University law Professor Orin Kerr, a former clerk for Justice Anthony Kennedy.
Kerr is also a blogger at The Volokh Conspiracy, where he has become the unofficial emcee of Washington’s new favorite parlor game: Guess the leaker.
When the opinion came out last week, court observers suspected immediately that Roberts had changed his vote in the healthcare case, based on oddities in the dissenting opinion filed by Kennedy and Justices Antonin Scalia, Clarence Thomas and Samuel Alito.
On Sunday, CBS legal analyst Jan Crawford said two sources inside the court had confirmed that Roberts switched sides. She did not say why Roberts changed his vote, but noted that he sees his role partially as a guardian of the court’s apolitical reputation. She also reported that Kennedy lobbied Roberts aggressively to return to the fold.
The court is extremely protective of its private deliberations. Court watchers were shocked to see such a detailed account of deliberations get revealed just days after a major decision, even though the facts were already widely assumed.
“To me, the leak is a bigger story because it fuels the Kremlin-ology,” said University of Richmond law Professor Kevin Walsh, a former clerk for Scalia.
Most participants in the guessing game believe the leak came from a conservative who was upset with Roberts’s decision. It’s not clear that changing his mind will actually undermine his reputation as a deliberative justice who strives to keep the court out of politics, but the leak seemed decidedly negative toward Roberts.
“This is going to strain relationships no matter who did the leaking, but it’s really hard to know how this plays out over the long term,” Kerr said.
Another crack in the court’s leak-proofing appeared Tuesday, when a “source inside the court” disputed part of Crawford’s report.
Crawford confirmed Roberts’s switch but shot down one part of the rumor. Some observers thought the conservatives’ dissenting opinion had originally been written as a majority opinion, mostly because it did not spend much time on Roberts’s decision to uphold the mandate under Congress’s taxing power.
Not so, Crawford’s sources said: they told her that the unusual dissent was not a product of last-minute scrambling, but rather “a signal the conservatives no longer wished to engage in debate" with Roberts.
On Tuesday, a “source inside the court” went to Salon to dispute that part of Crawford’s story, saying most of the dissenting opinion had been written by Roberts before he switched sides.
The explanation offered by Crawford’s sources is “pure propagandistic spin,” according to Salon’s source.
This kind of back-and-forth sniping through the press is common on Capitol Hill and in political campaigns — but not at the Supreme Court, even in high-profile cases.
Leaking in general, and the nature of the CBS leak, also fly in the face of what Roberts’s critics say he was trying to do with the healthcare decision.
There is no rule against any justice changing his or her vote, and such changes have happened before. Still, conservatives seized on the CBS report to paint Roberts as a traitor to their cause and to suggest that his nomination might have been a mistake — even though Roberts gave conservatives the legal precedent they wanted on the most significant legal issues underlying the healthcare case.
Roberts joked about the case last Friday before departing for a summer teaching position on the island of Malta. The choice of an “impregnable island fortress” made sense, Roberts quipped to a judicial conference in Pennsylvania.
All of the justices were aware of the historic nature of the healthcare case. As is their custom, they held the much-anticipated ruling until the last day of the term, jetting off a few days later to their summer vacations and temporary teaching positions. The majority was sure to take heavy criticism from whichever side lost. And once Roberts switched his vote, he had to assume the information would come out eventually, legal experts said. But most expected that process to take years.
Walsh noted that former Chief Justice Warren Burger took an anonymous drubbing from disgruntled clerks and colleagues in The Brethren, a 1979 book by Washington Post reporter Bob Woodward.
The leaks angered Burger and damaged relationships among the justices, but Walsh said the frustration with Burger ran much deeper than the case-specific griping about Roberts.
“That sort of thing can be very corrosive, but I wouldn’t necessarily put this up there with that,” Walsh said. “My impression is that Roberts is no Burger.”
Speculation about the source of the Roberts leaks has centered around the conservative justices and their clerks. The sources seem to have been dissatisfied with Roberts. Observers also noted that Crawford has a good relationship with Thomas, who has praised her work covering the court. And Scalia attended the White House Correspondents's Association dinner in 2009 as a guest of ABC News. Crawford worked for that network at the time.
The justices themselves were implicated in the speculation because clerks would have more to lose by talking to the press. A decision has never leaked before the court announced it publicly; the explanation for that fact is that justices have nothing to gain and clerks would be throwing away promising careers by leaking.
But the scuttlebutt might be shifting away from the justices, both because of the Salon article and a closer look at the months leading up to the ruling.
Kerr noted that Ramesh Ponnuru, an editor at the conservative National Review, said in June that sources inside the court told him Roberts was “going a little bit wobbly” after siding with the conservative bloc immediately following oral arguments.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) also delivered an oddly timed floor speech last month saying he believed Roberts would uphold the healthcare law.
Some conservatives are now asking whether chatter from inside the court had begun to make its way outside — suggesting that the talk wasn’t coming from the justices.