That Didn’t Take Long: Supreme Court Leaks

Jan Crawford reported yesterday that two Supreme Court insiders “with specific knowledge of the deliberations” behind last week’s monumental healthcare decision have revealed that Chief Justice Roberts originally voted to strike down President Obama’s health care reform law but switched his vote sometime after the initial conference.

Before the health care decision came down, there was some chatter in the blogosphere asking why no one at the Court had leaked the outcome.  In light of the recent series of high-profile national security leaks, it seemed unusual that the Supreme Court employees were apparently so discreet about the Court’s inner workings.  Jack Goldsmith had a piece in The New Republic asking why there are rarely leaks from the Supreme Court about pending cases and offered some helpful comparisons between Supreme Court employees and national security employees.  Ethan Lieb had a shorter post on PrawsBlawg asking the same question.

Well, the ink is hardly dry on the opinion, and leaks about what happened behind the scenes at the Court have already begun.  My guess is that some disgruntled law clerks for Justices Kennedy, Thomas, Scalia, or Alito are the source, but I doubt we will never really know.  Although the Court is very good at keeping secret the outcome of cases prior to their official announcement, it seems that all bets are off once the opinion comes down.   No doubt most if not all of the Justices are disappointed that these leaks had occurred, but it is unlikely that the leakers will be identified or suffer any consequences.  Unlike national security employees, clerks who leak do not have to worry about losing their security clearances or the threat of criminal prosecution under the Espionage Act.

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6 Responses

  1. Shag from Brookline says:

    It isn’t clear from Jan Crawford’s report WHEN she got the information she reported. I seriously doubt that she got the substance of her report AFTER the ACA decision came down last Thursday. What would be the benefit of leaking AFTER as opposed to BEFORE in order to apply pressure via the media on CJ. Roberts? And is it clear that national security is not impacted by Court leaks? Where’s the late Finley Peter Dunne’s Mr. Dooley when we need him? Instead of the Court following the “illiction returns,” the Etna-erupting Justices Scalia, Thomas and Alito may be trying to influence the “illiction returns” this November. Recall that Scalia and Thomas helped the “illiction” in 2000 with its Bush v. Gore (5-4).

  2. Mary-Rose Papandrea says:

    Interesting point. If the leaks occurred before the decision came down, then it was Jan Crawford who sat on that information. Given she covers the Court, she may have thought that she might anger the Justices if she revealed what she had learned before the outcome was announced and didn’t want to burn her bridges with them. That said, my guess is that even the angriest of law clerks felt obligated to keep the behind-the-scenes deliberations secret before the opinion came out. Once the decision was announced, though, the leakers did not feel that that it was important to keep quiet any longer.

  3. Shag from Brookline says:

    At least Ed Lazarus had the good economic sense to wait until after his clerking days ended. If indeed the leakers were law clerks, they may be outed by non-leaking law clerks so that all clerks will not be painted with a broad brush.

  4. AndyK says:

    Leaking ahead of time could have dissuaded Roberts from making the switch. Leaking afterwards simply politicizes the Court and delegitimates the decision. So I would ask: is the press favorable right now for the decision? Yes, and it’s bad for Obama. So why would Alito, Scalia, or Thomas clerks leak (unless it is Scalia’s “token liberal” clerk)? And why now, without precedent for such a leak? My guess is it is one of the newer, less traditional / professional justices.

    I would guess that Kagan et al were very iffy on the Commerce Clause part of the decision, and the brilliant manouever by Roberts, denying the CC argument and framing the ACA as a “tax”, is a greater propaganda victory than they can swallow, and this is media damage control.

  5. mary says:

    Why oh Why oh Why do our trusted politicians make rules that exempt them from the rules that govern the rest of us?

  6. Asher says:

    I think it’s very obvious that Scalia or Kennedy authorized this leak.