The Supreme Court Leaks Continue

The Hill recently named me “the unofficial emcee of Washington’s new favorite parlor game: guess the leaker,” so I figured it was time for an update on the latest in leaking. The dueling Supreme Court leakers took a few days off for July 4th. But now they’re back, with Jan Crawford’s latest story, Discord at the Supreme Court is Deep, and Personal, via Howard Bashman. What’s new? For starters, the conservative Justices are really pissed off at the Chief Justice:

Conservatives feel a sense of betrayal. They feel that Roberts changed his mind for the wrong reasons.

If Roberts had been with the liberals from the beginning, sources tell me that would have been one thing; but switching his position – and relatively late in the process – infuriated the conservatives.

Of course it’s unclear why he switched. He may have been focused solely on the law. But that is not what some of his colleagues believe.

Crawford suggests that the anger towards Roberts may be related to his first full term, when he made the liberal Justices mad by making it seem like he was open-minded when he really planned to vote the conservative party-line. This made other Justices question Roberts’ candor, which created unhappiness that the Roberts vote switch triggered again:

Liberal justices thought Roberts had signaled he would be open to compromise and be more moderate. But he sided with conservatives that year, making the liberals feel misled. They were furious. As one said at the time: “He talks the talk, but won’t walk the walk.”

Conservatives were angry at Roberts, too – they thought he gave the liberals false hope. He ended up just pushing them further away.

That tension eased over the summer of 2007. But this conflict among conservatives – after Roberts “walked the walk” with liberals – may take much longer to resolve.

Second, Crawford’s sources have more on the origins of the joint dissent. You’ll recall that the original Crawford leakers said that it was a true joint effort, but the Campos leaker said that it was mostly just the Chief Justice’s original majority opinion. Crawrford’s sources are adamant that it was truly a joint effort of the dissenters. Why does it read like a majority opinion, then? Crawford writes:

They set out writing their own opinion – they wrote it to look like a majority decision, according to sources, because they hoped Roberts would rejoin them to strike down the mandate. Kennedy relentlessly lobbied Roberts until the end to come back. Of course he did not, and the conservatives’ decision became a dissent.

Some readers have indicated that they think it is poor form to comment on the source or motivation of leaks. Those readers will want to skip to the next post. For the rest of us, here are a few thoughts:

1) In case it wasn’t clear before, it seems reasonably clear now that this leak is coming from the conservative side. Someone on that side wants us to know that they’re pissed off, and they want us to know why.

2) At the same time, we still seem to lack a public reason why Roberts changed his vote or why his vote switch was so exceptional as to justify the leak. Some people say that Roberts changed sides because of the extraordinary pressure on him from President Obama and other Democrats. But I don’t think that makes much sense. For Supreme Court Justices, saying “no” to the President is just an everyday part of the job. So I don’t see why Obama’s comments would have had much influence.

On the significance of the vote switch itself, such switches are not all that uncommon. That can be frustrating to those on the losing side, but it’s not clear why a switch here would be thought to be so earth-shattering as to justify a leak just days after the decision. So why leak? Perhaps the leaks are just from clerks who are trying to spin the decision to minimize the influence of Roberts’ decision. The thinking might go something like this: If you leak to Crawford with the spin that Roberts’ decision was illegitimate, and then the mandate opponents pick up that theme and run with it, perhaps that view will gain some traction in the legal world and will help out another challenge in the future. Or perhaps there’s a smoking gun that explains what Roberts was thinking that hasn’t been made public yet. Or perhaps the health care cases just made people act strangely. It’s hard to know.

3) We still can’t be sure whether the leaks are coming from conservative Justices, clerks, or both. On one hand, some language in Crawford’s story seems to be coming from Justices. In particular, the part about bad blood from 2007 seems to be something a Justice would recall, as the today’s clerks weren’t around then. As far as I know, the quote from a liberal Justice in 2007 that Roberts “talks the talk, but won’t walk the walk” hasn’t been public before, further suggesting that a Justice is recalling it. On the other hand, we can’t be sure: The Justices talk to their clerks, and that quote may just be something a Justice told his clerks about what happened in 2007. Or maybe it was something Crawford heard a long time ago but just hasn’t used it until now. We can’t know for sure. To add to the speculation, I wouldn’t be surprised if there are multiple leakers on the conservative side. I suspect that a conservative clerk was behind the pre-decision leaks to Ramesh Ponnuru at the National Review and elsewhere. But the leak to Crawford may involve one or more sources who were not involved in the Ponnuru leak.

5) Jonathan Peters authored a really interesting article in Slate on the history of leaks at the Supreme Court. It’s well worth a read.