When the Supreme Court leaks

By Felix Salmon
July 2, 2012
proved us both wrong.

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On Thursday, in the wake of the Supreme Court decision on the Affordable Care Act, you could hear the machinery creaking as pundits around the web felt the need to respond. I took the media angle, deducing from seven minutes of CNN (which I didn’t even watch) that “TV news is ultimately much more an arm of the entertainment industry than it is of the news industry”, and that “if you want to be a journalist, don’t work in TV”. And over at Bloomberg View, Stephen Carter declared that “the most fascinating aspect” of the 193-page decision — which I’m sure he hadn’t read in full — was the fact that it hadn’t leaked:

Smack in the middle of a city where leaks are a way of life, here was a pending action that pundits were proclaiming would determine President Barack Obama’s legacy, and the capital’s legion of political reporters was unable to ferret out the smallest advance hint of the court’s intentions — even though the initial vote probably came three months ago. The justices themselves, their law clerks and all the personnel of the court cooperate in maintaining the veil…

Just as nobody can watch the video, neither does the court leak. These two facts are of a piece.

This afternoon, with a single deeply-reported article, Jan Crawford of CBS News proved us both wrong. Her 2,400-word piece is as good a piece of legal journalism as I’ve seen, and confirms what some had suspected: that Chief Justice Roberts changed his mind with respect to his decision. She adds lots of fascinating detail about how everything went down: after he changed his mind, Crawford reports, Roberts was heavily lobbied by the judges who wanted to strike down the law, who wanted to coax him back into their own fold.

Carter’s glowing view of his fellow jurists is in large part justified, not only at the Supreme Court level but also throughout the federal judiciary. Lawyers, it turns out, tend to be good at keeping secrets. On the other hand, partisan politicians are not. And it seems very much as though the more partisan Republicans within the Supreme Court have in this case behaved more like politicians than like jurists.

Roberts’s action “stirred the ire of the conservative justices”, says Crawford, who reports on what happened “in the Court’s private conference immediately after the arguments”, where only the nine justices are present. And that’s not the only secret conversation that leaked:

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

Crawford was also given the code to unlock the secret message in the unsigned dissent:

The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

As Crawford says, “the justices are notoriously close-lipped, and their law clerks must agree to keep matters completely confidential”. And yet, we’re now seeing these coordinated and perfectly-timed leaks from within the Court, detailing information known only to the justices themselves. The conservative justices are leaking, and although Crawford talks about “law clerks, chambers’ aides and secretaries” who have been gossiping internally about Roberts’s change of mind, it’s pretty clear that her sources were impeccable and that if they weren’t the conservative justices themselves, they were sources who had the explicit consent of those justices to start talking to the press.

Carter’s article bemoaned the ubiquity of leaking in Washington, describing it as “despicable”, and saying that “one reason to admire the court, even when one disagrees with it, is its ability to withstand the temptation to which other government bodies regularly yield.” He concludes his column by saying that “the rest of Washington would do well to learn from the court’s example”.

Instead, it seems, the Supreme Court has become infected by exactly the same partisanship which has corroded civic life everywhere else in DC. Maybe that was inevitable. But this story is still a signal journalistic accomplishment — and it was written at law-geeky length by a TV reporter. Crawford deserves all credit for getting this scoop — and for showing that there is life yet in broadcast journalism.

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