Orin Kerr expands on the question I asked at the end of my post on today’s report from CBS News that Chief Justice Roberts supposedly switched his vote on the PPACA cases:
So who leaked? We don’t know for sure, of course. But Crawford’s story has the kinds of details that only the Justices and their clerks would likely know. The leaks go into what the Justices were thinking and what signal they meant to send with their actions. (Example 1: “There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as ‘arm-twisting.’” Example 2: “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.”) That sure seems sounds like the kind of stuff only Justices and their clerks would be privy to. Further, I doubt Crawford would run with a story with that kind of detail that was sourced less directly. So my best guess would be that the two sources she relies on are from the among the Justices and their clerks.
Can we get more specific? Again, we don’t know. Only a fool would speculate beyond that. But hey, this is a blog, so let’s speculate anyway. Perhaps the most intriguing possibility is that it was a Justice or two rather than clerks who leaked the story. That doesn’t seem out of the question for a few reasons. First, law clerks don’t generally chat with Jan Crawford, while several of the Justices have done so publicly. Crawford appears to have particularly good relations with several of the court’s conservative Justices. Here’s Crawford interviewing Justice Thomas, and here’s Crawford interviewing Justice Scalia. Second, a clerk who leaked this and is identified has likely made a career-ending move. It’s true that a group of OT2000 clerksleaked the details of the deliberations in Bush v. Gore , and as far as I know they did not face consequences. But that was in the fall of 2004, almost four years after the decision, and my sense is that at least some of the leaking clerks were already comfy in academic jobs and no longer practicing. In contrast, the health care cases just came down three days ago. If the Court still works as it did ten years ago, all of the clerks are still working at the Court: The clerks don’t start to rotate out for at least another week. Even assuming a clerk or two was so extraordinarily dismissive of the confidentiality rules to leak this, it would be crazy to leak over the weekend when you have to show up at the Court for work tomorrow. So while it’s certainly possible that it was a clerk or two, it would be astonishing. But then I guess the leak is astonishing either way, so who knows.
I sense that this has the potential to be a major story that could tear open the Supreme Court, and not in a good way.
Stay tuned.
