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More Speculation On The Supreme Court Leaker

Aside from the question of whether or not Chief Justice Roberts may have switched his position on the Affordable Care Act at some point after the Justices first met to discuss the case, one burning question has been who may have been the person who talked to CBS News Reporter Jan Crawford about what are supposed to be private and highly confidential judicial discussions. As I noted in my original post on Crawford’s story, the number of suspects would seem to be limited to a very small universe of people, with Supreme Court Justices and their law clerks being the ones most likely to have the kind of information that Crawford’s report contained. Law Professor Orin Kerr reached conclusions similar to mine in his initial post on the matter, as have others who have engaged in the always popular Washington guessing game of “Who’s The Leaker?”

In his post Sunday evening, Kerr noted that Crawford had previously interviewed, and appears to have good relationships with, Justices Kennedy and Thomas, and Norm Scheiber takes the ball and runs with it from there:

Jason Zengerle says Clarence Thomas is one likely candidate, since he was a hero of Crawford’s recent book and granted her several high-profile interviews around the same time.

As for the second justice, assuming there was a second (and obviously there need not have been), my money is on Anthony Kennedy. Crawford’s piece really goes out of its way to cast him as principled and intellectually formidable, something that, suffice it to say, is a bit at odds with the conventional wisdom.

(…)

As for Kennedy’s motives, one gets the sense reading Crawford’s piece—which was clearly shaped by Kennedy’s “close associates,” if not Kennedy himself—that he smelled an opportunity to redeem himself with conservatives and relinquish the turncoat title to John Roberts. In fact, the whole rehabilitation effort smacks of the same grandiosity that critics mock in his opinions. If it were any other justice, the over-the-top defense of Kennedy might suggest they weren’tthe source. For Kennedy, the gun isn’t just smoking, it’s downright ablaze. A little subtlety might have gone a long way here.

Predictably, the likes of ThinkProgress have jumped all over the suggestion that Justice Thomas might be involved in all of this, although their reasons for doing so are clearly more motivated by ideological and the long standing grudge against the Justice among people on the left than any quest for the truth. It is worth noting those, as Dylan Byers points out, that in the past Thomas has had kind words for Crawford.

Kerr, meanwhile, points out today that National Review’s Ramesh Ponnuru had said the following during a Princeton University event in early June:

My own sort of educated guess, based on people I talk to at the Supreme Court, is that — Well, as I’m sure people know, there’s an initial vote the same week, on the Friday of the oral arguments. And my understanding is that there was a 5-4 vote to strike down the mandate and maybe some related provisions but not the entire act. Since then, interestingly, there seem to have been some second thoughts. Not on the part of Justice Kennedy, but on the part of Chief Justice Roberts, who seems to be going a little bit wobbly. So right now, I would say, [the outcome of the case] is a little bit up in the air….

What’s interesting about Ponnuru’s statement in June is that, by the time the opinion had come out the four dissenters had reached the point where they said the entire law should be thrown out whereas his “source” says that the consensus at some point was to strike down the mandate and only some provisions of the law. Whether this means that Ponnuru’s source was misinformed, or whether there was more than one changed opinion on SCOTUS, is unclear. As for what it tells us about the identity of the leaker, Kerr speculates that the universe of people who would leak to Ponnuru is smaller than the universe of people that would leak to Crawford, and the the Ponnuru leaker was more likely to be a law clerk than a Justice. Whether that means the Crawford leaker is also a law clerk, or whether they had independent sources is unclear.

So where does this leave us in the quest to figure out who the leaker is? In some sense, your guess is as good as mine or Kerr’s. Kerr does say that he thinks it’s unlikely that it’s a law clerk because leaking would be a career ending move for them if they were ever discovered, but Christopher Shea argues that the damage to a law clerk’s career would necessarily be as bad as Kerr speculates given recent history. Therefore, I wouldn’t discount the possibility that this was the work of one or more law clerks. Of course, the story becomes far more interesting if the leaker is one of the Justices, because it brings up speculation about what this could mean for the future of inter-personal relationships on the Court in the future, and what impact it might have on alliances in particular cases.

So far, we haven’t heard a single comment about the Crawford story from anyone close to the Supreme Court, and it’s unlikely that we will either. However, I have no doubt that, even though the Justices are on vacation now, there has has been some communication on some level about all of this, possibly even an internal investigation. I get the feeling that this story isn’t finished just yet.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Gustopher says:

    As much as I enjoy the spectacle of all of this, with Justices ratting out their peers to the press, none of it does anything to cast doubt on the most likely scenario.

    It’s a clerk. An angry, bitter teabagger clerk. Kennedy is presented as principled because the clerk agrees with him. Roberts is a turncoat. The clerk isn’t concerned with it being a career ending action to leak, because he thinks he’s too clever to be caught.

    Like or Dislike: Thumb up 7 Thumb down 1

  2. jan says:

    There is certainly lots of drama in this ACA decision. And, I think all the rumors coming forth out of it will become a permanent part of Justice Roberts SCOTUS ‘baby book,’ & legacy, for good or bad. However, the decision stands, and people just have to go forward from here.

    Like or Dislike: Thumb up 2 Thumb down 0

  3. michael reynolds says:

    Yes, but who was standing where on Lenin’s mausoleum as they reviewed the May Day parade?

    (A reference that only people over 40 will get.)

    Like or Dislike: Thumb up 9 Thumb down 0

  4. Jeremy R says:

    So far, we haven’t heard a single comment about the Crawford story from anyone close to the Supreme Court, and it’s unlikely that we will either.

    Actually, Prof. Paul Compos was on Laurence O’Donnel’s show last night, and he was relating that some source of his inside the court was pissed about the Crawford story and disputing aspects of it, claiming for example that Roberts wrote most of what became the dissent before writing most the the final majority opinion (or something like that). Here’s the segment:

    http://video.msnbc.msn.com/the-last-word/48053221

    I guess the court is having some sort of leak war.

    Like or Dislike: Thumb up 0 Thumb down 0

  5. Jeremy R says:

    @Jeremy R:

    My quick transcription of the first sentences from the beginning of the segment:

    Compos: I’ve been speaking with someone who was involved in the drafting of the opinions, who wasn’t willing to divulge that information up until now. This person has become very angry about the Jan Crawford report on CBS. And this person wishes to emphasize that there are in fact serious inaccuracies in that report — particularly the claim that the joint dissent was drafted after Chief Justice Roberts defected on the question of the individual mandate. In fact the first 48 pages of the 65 pages of the joint dissent were really the majority opinion. Only the last 17 pages of that joint dissent were added on, essentially, for the most part, after Chief Justice Roberts changed his vote. …

    Like or Dislike: Thumb up 0 Thumb down 0

  6. PJ says:

    @Doug Mataconis:

    As for what it tells us about the identity of the leaker, Kerr speculates that the universe of people who would leak to Ponnuru is smaller than the universe of people that would leak to Crawford, and the the Ponnuru leaker was more likely to be a law clerk than a Justice. Whether that means the Crawford leaker is also a law clerk, or whether they had independent sources is unclear.

    Both Crawford and Ponnuru used the same word about Roberts, namely “wobbly”.

    From that I’d assume that they both have the same source, and I think that a law clerk would be more restrictive about contacting people.
    So, I’m still betting on a Justice.

    Like or Dislike: Thumb up 2 Thumb down 0

  7. steve says:

    A conservative law clerk who leaked this would be a hero on the right. He/she would be set for life, so I dont really think we can exclude a clerk.

    Steve

    Like or Dislike: Thumb up 5 Thumb down 0

  8. JohnMcC says:

    I interpret the “leaks” in light of the Scalia dissent (“angry ourburst” “over the top”) in the Arizona immigration law case. There are obviously some raw nerve-endings on the court. I think we’ll see more of this.

    Like or Dislike: Thumb up 4 Thumb down 0

  9. rudderpedals says:

    Cui bono?

    I’ll take J. Kennedy for $400, Alex.

    Like or Dislike: Thumb up 3 Thumb down 0

  10. DRE says:

    I really don’t understand all the need to find Roberts motivation when the common sense answer is so obvious. This was a conservative decision from a conservative justice that stopped short of being outright activist.

    All of the findings are more limiting of federal power than any precedent had been, both in terms of the commerce power and the ability to control States in cooperative efforts.

    However the other 4 conservatives (and their supporters) also want to ignore what has always been the rule in terms of deference to congress. If it is possible to construe a law in such a way that is constitutional, even if it is not the most direct reading, it must be construed that way.

    In other words, Roberts rendered a very conservative ruling, but decided that he did not want to preside over the most activist court in history in terms of defiance of Congress.

    Like or Dislike: Thumb up 4 Thumb down 1

  11. PD Shaw says:

    @steve: “He/she would be set for life”

    How so? I could see the clerk perhaps getting a longterm gig writing conservative screeds on Breitbart dot com for the “big” blogging money, but he/she would not have any value for any of the types of jobs a clerk would normally be looking for based upon leveraging their experience as SCOTUS insider.

    The more likely chain of events for a law clerk is he/ she got drunk at an inside-the-beltway cocktail party and wanted to impress somebody.

    Like or Dislike: Thumb up 0 Thumb down 0

  12. jan says:

    @JohnMcC:

    “There are obviously some raw nerve-endings on the court. I think we’ll see more of this. “

    Especially if there is any credence to the comments that it was either Thomas or Kennedy — I would put emphasis on Kennedy, as he seemed closely linked to Roberts, philosophically, before all this happened.

    Like or Dislike: Thumb up 1 Thumb down 0

  13. al-Ameda says:

    Jason Zengerle says Clarence Thomas is one likely candidate, since he was a hero of Crawford’s recent book and granted her several high-profile interviews around the same time.

    I hope that it turns out to be Justice Thomas. It would cement his legacy as the worst non-communicative Supreme Court justice in our history.

    Like or Dislike: Thumb up 7 Thumb down 1

  14. Dazedandconfused says:

    I don’t understand the angst. Security was maintained until after the decision was announced.

    Like or Dislike: Thumb up 0 Thumb down 0

  15. jan says:

    @al-Ameda:

    “I hope that it turns out to be Justice Thomas. It would cement his legacy as the worst non-communicative Supreme Court justice in our history. “

    I doubt you will get your wish, as all this talk (gossip) will probably remain in speculative territory. However, as I implied in my last post, I think it is far more likely that, if indeed there was SCOTUS leak, it would be more likely that Kennedy was the ‘talker’, not Thomas.

    Like or Dislike: Thumb up 1 Thumb down 1

  16. legion says:

    I said it before and I’ll say it again – Thomas. Not Clarence, but his wife Ginnie. She’s the lead teahadist in that household, and has already demonstrated a none-too-firm grasp on appropriate communications.

    Like or Dislike: Thumb up 13 Thumb down 1

  17. al-Ameda says:

    @jan:

    I doubt you will get your wish, as all this talk (gossip) will probably remain in speculative territory. However, as I implied in my last post, I think it is far more likely that, if indeed there was SCOTUS leak, it would be more likely that Kennedy was the ‘talker’, not Thomas.

    Jan, at first I figured it was one of the clerks, however, career-wise, the clerks have the most to lose, therefore I’ve come to believe that it was one of the justices, and to my thinking a conservative justice. A conservative justice like Scalia or Thomas would have had good reason to vent. Kennedy? I’m not so sure, just from the way the story was told. Legion (here on OTB) says the Virginia Thomas (wife of …) could be the one – that seems very plausible to me.

    No matter, I love the back story.

    Like or Dislike: Thumb up 5 Thumb down 0

  18. jan says:

    @al-Ameda:

    “No matter, I love the back story. “

    I know you do, as do many others. However, I think people will just have to keep on guessing, as I doubt we’ll find out the true background story, unless Roberts himself divulges what happens, in a self defense move after his vacation.

    My personal best-case-scenario would be that Roberts made this decision sans any external input or provocation.

    Like or Dislike: Thumb up 1 Thumb down 0

  19. jan says:

    @al-Ameda:

    As an addendum to my post above, al Ameda:

    As you know I am very much against the ACA decision and what that policy entails for the American public. However, I would hope that our highest court in the land would be above all of us partisan mortals, in being able to neutrally determine what is constitutional and what is not.

    Like or Dislike: Thumb up 1 Thumb down 0

  20. al-Ameda says:

    @jan:

    However, I would hope that our highest court in the land would be above all of us partisan mortals, in being able to neutrally determine what is constitutional and what is not.

    Generally, I agree with you. However, a problem arises when, on landmark cases, you get a 5-4 decision declaring legislation unconstitutional. I do think the justices cannot help but be informed and be affected by the political world in which they operate and deliberate. There was nowhere near a legal consensus among legal scholars and observers that ACA was constitutional or not So, it is my belief that Roberts did not want to overturn ACA on a 5-4 vote and in effect he said, “Voters, Congress, Mr President – this is a political problem ….”

    In the end, there was no decision that could have avoided anger and vitriol – that’s how divided we are today. So, Robert’s decision is probably the best one, because it’s the one that will force the people and their elected representatives to deal with it.

    Like or Dislike: Thumb up 1 Thumb down 0

  21. anjin-san says:

    what that policy entails for the American public

    God forbid people should be able to have health insurance if they have a pre-existing condition. What a disaster. Next thing you know we will all be wearing Mao caps and padded PJs…

    Like or Dislike: Thumb up 6 Thumb down 2

  22. Murray says:

    This whole brouhaha makes me laugh.

    To me the real subject of discussion should be the increasingly unhinged arguments of Justice Scalia whose tone has more to do with Fox News than what one can expect from a judge.

    Like or Dislike: Thumb up 12 Thumb down 1

  23. Just Me says:

    My instinct when there was a leak and still is my instinct is that it was a law clerk.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. Jeremy R says:

    @Jeremy R:

    Looks like he’s now written it up for Salon:

    Roberts wrote both Obamacare opinions

    A Court source tells Salon the chief justice wrote the majority opinion and much of the dissent in the ACA case

    Like or Dislike: Thumb up 1 Thumb down 0

  25. al-Ameda says:

    @Jeremy R:

    A Court source tells Salon the chief justice wrote the majority opinion and much of the dissent in the ACA case

    remember the dialogue from “Chinatown” ?

    Evelyn Mulwray: She’s my daughter. [Gittes slaps Evelyn]
    Jake Gittes: I said I want the truth!
    Evelyn Mulwray: She’s my sister… [slap]
    Evelyn Mulwray: She’s my daughter… [slap]
    Evelyn Mulwray: My sister, my daughter. [More slaps]
    Jake Gittes: I said I want the truth!
    Evelyn Mulwray: She’s my sister AND my daughter!

    Like or Dislike: Thumb up 2 Thumb down 0

  26. bk says:

    their reasons for doing so are clearly more motivated by ideological and the long standing grudge against the Justice among people on the left than any quest for the truth.

    You’re able to read minds? That is awesome!

    Like or Dislike: Thumb up 0 Thumb down 0

  27. Nikki says:

    I’ve read that the CBS reporter and the Thomases are close friends, and, since Ginni Thomas has proven to be one who acts first and thinks about the consequences later, I’m going with the guess that she is the leaker.

    Like or Dislike: Thumb up 1 Thumb down 0

  28. bk says:

    If you consider a “grudge” to be the beliefs that (a) Thomas’s willful failure to disclose his wife’s lobbying income on his financial disclosure forms should be grounds for impeachment; and (b) his wife’s lobbying activities on behalf of anti-Affordable Health Care groups should be a reason why any ethical judge would consider recusal, then yeah – I hold a “grudge” against him. In addition, to me the lack of ethics shown by (a) and (b) = him being the leaker.

    Like or Dislike: Thumb up 0 Thumb down 0

  29. bk says:

    Of course, there is always the possibility that his wife drunk-dialed Crawford.

    Like or Dislike: Thumb up 4 Thumb down 0

  30. al-Ameda says:

    @Nikki:

    I’ve read that the CBS reporter and the Thomases are close friends, and, since Ginni Thomas has proven to be one who acts first and thinks about the consequences later, I’m going with the guess that she is the leaker.

    That’s the most plausible conjecture yet.
    I’ll go with that.

    Like or Dislike: Thumb up 2 Thumb down 0