Has The Supreme Court Sprung A Leak?

ProudProgressive 2012/07/02 00:38:07
Supreme Court Springs A Leak; Leaks To Conservative Pundits May Have Started More Than A Month Ago
By Ian Millhiser
Jul 1, 2012

CBS News' Jan Crawford confirms widespread rumors that Chief Justice John Roberts initially voted to strike down the Affordable Care Act's individual mandate, but decided midway through the opinion drafting process that he could not support this constitutionally unjustifiable result. In what may be the biggest revelation of her piece, Crawford also reports that pseudo-moderate Justice Anthony Kennedy led the internal lobbying effort to bring Roberts back into the right-wing fold:

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this."

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own."

The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.

Crawford sites two unnamed sources, and there are a very limited universe of people who could have revealed this information to her. Only the justices and their personal staff would have access to this knowledge, and it is highly unlikely that a clerk or secretary would be willing to risk their entire career by revealing the Court's confidential deliberations to the press. Crawford, moreover, is a very well connected conservative reporter who has, at times, worked closely with the Federalist Society to drive conservative legal narratives. Nothing is certain, but it is likely that one or both of Crawford's sources is a conservative justice.

Moreover, as Linda Greenhouse points out, it is possible that the Court started springing leaks more than a month before Roberts handed down his opinion:

Around Memorial Day, a number of conservative columnists and bloggers suddenly began accusing the "liberal media" of putting "the squeeze to Justice Roberts," as George Will expressed the thought in his Washington Post column. "They are waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional," Mr. Will wrote. Although the court has been famously leakproof, Mr. Will and some of the others are well connected at the court, and I wondered at the time whether they had picked up signals that the chief justice, thought reliable after the oral argument two months earlier, was now wavering, and whether their message was really intended for him.

To be clear, at this point only two facts are confirmed: 1) According to Crawford, Roberts flipped his vote midstream; and 2) someone within the Court must have leaked her this information. It is perfectly appropriate for Justice Kennedy, or any other justice, for that matter, to internally lobby Roberts to try to obtain his vote in an important case. If a member of the Court has turned to conservative columnists like Will or reporters like Crawford in order to pressure and then embarrass Roberts, however, that would be a significant and unusual escalation from the justices' regular tactics.

Read More: http://thinkprogress.org/justice/2012/07/01/509359...

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Top Opinion

  • Steve 2012/07/02 00:56:39
    Remarkable reading. Justice Roberts, while clearly a Conservative, has never been accused of being unprincipled, unschooled, or petty.

    The other Conservatives, however, seem terribly petty and unprincipled, Scalia and Thomas in particular.

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  • bigfoot 2012/07/02 19:07:34
    people,even Chief Justices regardless of the Constitution and Laws do what is in their own best interest.the S.C. enjoys the lowest rating and level of respect in ages.the S C is viewed as the Republican Party Law Firm.the defeat of the Obama Bill as Unconstitutional,after making Bush,President,followed by the Corporations Are People decision would have had far reaching unforseeable political consequences.therefore I believe Roberts twisted himself into a pretzel to vote the bill Constitutional.and save his court and legacy.
  • jackolantyrn356 2012/07/02 16:27:55
    There is no Supreme Court. Comrade Roberts sold everyone OUT. 4 Heros of the Court should be honored but the rst do not follow the Constitution ,,,, Their trial for Treason is going to take a while. 235 or so years and now this, Follow the 9th and the 10th... One does not have to go through the courts of Congress to doi this,
  • CAROLYN NTARWNJBS 2012/07/02 13:17:44
    Interesting article but not a shock,definitely two justices come to mind.
  • Manwé 2012/07/02 08:47:25
    The other "conservative" justices showed their lack of judicial discipline in what they wrote. If they continue in insist in writing such drivel, I'm sure Roberts will abandon them again.
  • luvguins 2012/07/02 05:19:59
    The Republicans were so sure they had this in the bag with a right activist court. Thankfully one, the chief, actually followed the Constitution despite the pressure from his cohorts.
  • twocrows 2012/07/02 04:44:07
    this 'you're on your own'/revenge game is becoming legion. we've been seeing it in Congress -in the House in particular- for some time. for it to now move to the SCOTUS is disturbing indeed. it's the branch that supposed to be above such shenanigans. guess not.
  • jubil8 BN-0 PON 2012/07/02 01:16:35
    jubil8 BN-0 PON
    This is very disturbing. I hope the SC resolves the issue -- and if there's fire under that smoke, I hope the Justice with the match is impeached.
  • Steve 2012/07/02 00:56:39
    Remarkable reading. Justice Roberts, while clearly a Conservative, has never been accused of being unprincipled, unschooled, or petty.

    The other Conservatives, however, seem terribly petty and unprincipled, Scalia and Thomas in particular.

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