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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The Gang of Four seems as determined to destroy the reputation of the Court as their GOP friends are to destroy the reputation of the President.

Posted by Chris08 | Report as abusive

Democracy depends on the Executive, the Legislature, and the Judiciary remaining independent of each other. Here, by seemingly grouping together to vote on political rather than legal grounds – and even more by the alleged lobbying of Roberts – the four opposing Supreme Justices seem to be showing how much partisanship can undermine the foundations of democracy. If this really is what happened, it’s a sad day for the US legal system, a sadder one for US democracy.

Posted by FifthDecade | Report as abusive

No, what we are seeing is a journalist who Claims to have this information. Who can refute or validate her? I’m sorry, anonymous sources don’t cut it on this one.

Posted by ARJTurgot2 | Report as abusive

ARJTurgot: I hope you haven’t been reading too much about the “Iranian threat” then..

Posted by Foppe | Report as abusive

The leaking only occurred after the decision came out, that is, it is no longer immediately consequential.

At least a few court watchers saw in Alito’s reading his dissent from the bench in the juvenile justice case, and the sheer vitriol of Scalia’s dissent in the Arizona “papers please” law signs that the two were exceptionally unhappy, an omen for the result in the ACA.

Not me, I had no idea, except that, when I read the dissent, it did occur to me that Roberts probably changed his mind when it began to dawn on him fully just how radical these four wanted to be. Maybe they wouldn’t compromise enough on severability, for instance, to keep him in the fold. I am assuming to some degree that Breyer’s and Kagan’s willingness to join him in the Medicaid piece of the opinion was perhaps the final price of his willingness to join them in upholding all the other major pieces of the ACA. Just a totally wild guess.

Posted by rb6 | Report as abusive

What? The relevant leaks were the ones that tipped off Democratic politicians, like Leahy and the President, allowing them to apply selective political pressure. The obvious post-decision conservative leaks are unusual, but minor in comparison and don’t exactly pose a threat to the institution. I think you have to recalibrate your partisanship a bit here.

Posted by Mar10 | Report as abusive

I don’t think it took any leaks for Democrats to deduce that Roberts is susceptible to arguments that relate to the Court’s prestige and reputation for non-politically motivated outcomes. He has given several in-depth interviews regarding his goals and judicial philosophy as chief justice.

Posted by rb6 | Report as abusive

It’s been said that justices evolve on the court. There are certainly precedents for that, though I must say not among the 5 conservatives on the court today. It will be interesting to see as time goes on if this decision represents the beginning of an evolution for Roberts or not.

My problem with Roberts from the time of his nomination was not that he was too conservative, though he was that, but rather that he was too young. We had the prospect of a guy serving as Chief Justice for 30+ years. That is too long.

So far there is not much reason to think Roberts will evolve. The best bet is still that he’s playing a long game with this decision, laying the groundwork for a future and sharp restriction of fed govt powers.

But perhaps the 4 conservative justices’ peevish reactions will help move Roberts? He has shown some sensitivity to the court’s and to his own historical reputation. The childishness — I’m taking my toys and going home — as well as the leaks can’t be making Roberts any friendlier to that gang.

Nevertheless, my guess is that by next year he’ll have set this all aside and will be playing nice with the other conservatives as they continue their long-term quest to make this country more economically unequal and less friendly to the rights of the powerless.

Posted by f.fursty | Report as abusive

Conservative Republicans are playing a zero sum game. All the rules of decency are useful to them only as long as they advance their cause. When perceived as an obstacle, they throw them away without a second’s thought. But watch them wail in anger should the opposition do the same!

Posted by BajaArizona | Report as abusive

The lack of intellectual honesty from GOP has been made possible by near-infinite donations from rich men and an ever slavish media that refuses to ask tough questions to policy makers

When was the last time we saw a media guy ignore “time constrains” and ask any politician – right or left to defend their policy positions. Week after week, i see anchors jumping from one topic to another and not doing justice to any subject that they try and handle

With media like that, and billionaire donors who don’t mind spending millions of dollars, republicans can take any position with such impunity. Don’t blame them for they are most happy to take the advantage handed over the platter.

Posted by InfiniteThought | Report as abusive

In Europe generally, judges are civil servants; they are basically academicians who are selected by merit without political interference. In the United States generally, a judgeship is a political reward; and the higher the court, the greater the reward’s value and political control. Politics have corrupted our judiciary; and the courts have returned the favor by corrupting politics. Every authentic constitutional scholar knows what a travesty Bush v. Gore was (The Court ruled, inter alia, that counting the Florida votes would constitute an irrevocable injury to Bush; but not counting the votes would not constitute a similar injury to Gore). Subsequent to that decision, the “non-activist” Court has been on an orgy of overturning accepted precedent and law, including those restricting corporate funding of elections. As a result, virtually unlimited corporate money has been let loose into our political process. To most politicians, the power which comes with being elected is their most valued possession. And, those in high office who support the interests of the 1%, can now count on virtually unlimited funds to help them obtain/retain that most valued possession. This reciprocal corruption between the courts and politics is really what has brought us to where we are today.

Posted by bmz | Report as abusive

One leak not so much discussed is the decision itself, which seems to have slipped out early Thursday morning to a select few traders. HCA Holdings jumped significantly on release of the decision, but buying volume during the hour before strongly suggests advance knowledge was somehow available. This chart makes it pretty clear:

http://mikecooperbooks.com/2012/07/supre me-court-decision-leaked-to-inside-trade rs/

The politicization is bad enough; that someone was, in effect, selling the news seems even worse.

Posted by MikeCooper | Report as abusive

@FifthDecade… “the four opposing Supreme Justices seem to be showing how much partisanship can undermine the foundations of democracy.”

From reading dozens of your comments I feel like we are on the same page of most social issues. On this one thought we are miles apart. Even as a right winger I’d rather see a single payer system than what we just got.

Goverment currently pays 60-65% of the entire U.S. healthcare bill between Medicare, Medicade, Tricare, and health insurance on federal employees. My deep opposition to the supreem court ruling has nothing whatsoever to do with healthcare. If you want single payer (and I think a majority would support it at this point) than do it… but don’t mandate people to buy a product from a private company.

The gang of 4 are right… the relationship of the goverment and the citizen are forever changed… by this ruling.

Posted by y2kurtus | Report as abusive

@y2kurtus, that is an excellent point. If you add in the federal subsidy of the health insurers, that figure would rise even higher.

It remains to be seen how the ObamaCare bill plays out, but if the public enrollment grows at the expense of the private enrollment, you eventually reach a point at which the economics are unsustainable. We might already be past that point. Single-payer is the logical next step.

There are only two ways to spend less on health care. Either you limit access or you streamline the system. Whether the final bill is paid by individuals, by employers, or by the federal government, that fundamental equation doesn’t change. A single-payer system OUGHT to be more streamlined (though I do have some qualms about losing the cost-control expertise of the HMO and PBM businesses).

Moreover, having the government fund health care directly eliminates the mess of incentives/disincentives that are currently embedded in the employer-funded system. Presently, every household needs ONE person employed in a job that offers health care benefits. (Typically worth 25% or more of the base salary for a family plan.) But if the second worker also takes such a job, the valuable benefit is wasted. It is a perverse disincentive for a spouse NOT to work.

Posted by TFF | Report as abusive