Who Leaked At SCOTUS?

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.

FILED UNDER: Law and the Courts, Supreme Court, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held 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 contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. PJ says:

    Associate Justice Scalia, in the Library, with some Broccoli.

  2. Ron Beasley says:

    @PJ: I agree, it’s Scalia. He’s a bitter old sociopath and who took this very hard.

  3. legion says:

    I disagree. I don’t see Scalia responding quite like this… It feels too indirect – the only crowd this kind of info really makes Roberts look _bad_ to is the hard-right loonies who consider this a literal descent into tyranny and a betrayal worthy of violent retribution.

    You know who runs with that crowd? Clarence Thomas’ wife. That’s my completely irresponsible speculation, anyway.

  4. Ron Beasley says:


    I don’t see Scalia responding quite like this…

    A year or even a few months ago I would have agreed with you but Scalia has become increasingly unstable lately. Clarence Thomas’ wife is certainly a good choice as well and one that had not occurred to me.

  5. Gustopher says:

    Ruth Bader Ginsburg, trying to turn the conservative justices against each other. A lot of the details that she didn’t know, she just made up.

    This leaves the conservatives to wonder who leaked, and why they leaked lies.

    Just one more reason why Ruth Bader Ginsburg is awesome.

  6. Just Me says:

    I figure a conservative leaning clerk or maybe a liberal leaning one who figured they could get conservatives to turn against Roberts.

  7. al-Ameda says:

    I suspect that the clerks share a lot of information over drinks in and around Georgetown, and it would not surprise me at all if one of them gave Crawford the outline of how it came to pass, how Kennedy was the justice who was designated to convince Roberts to come back to the fold.

    I think it’s really a long shot that Scalia (or any other justice) talked to Crawford.

    It would be the best story of all time if Clarence Thomas leaked the story – I mean he has not participated in oral arguments since, what 2000?

    That said, I love the back stories about the justices.

  8. Jeremy R says:


    Yeah, what if the narrative that SCOTUS leaking is so rare is actually BS and instead what if a couple of partisans on the court make a habit of leaking the outcomes of politically useful/important rulings to fellow partisans? Then Jan Crawford Greenburg wouldn’t have needed to have sources on the court, but instead pissed off partisans, in the know, anywhere along the knowledge chain.

  9. Dazedandconfused says:

    Somebody who really admires Kennedy, by the look of the third page. One of his clerks? Does it matter?

    The one nice thing about lifetime appointments is that it makes them less prone to fear or panic over public perceptions of them. Are there any seriously disturbing allegations here?

  10. Herbster says:

    Slap a lie detector machine on the great unwashed one – Kagan – and you’d have your leaker, for sure. The current occupant of the White House was kept up to date throughout the Court’s debate by this unqualified creature. What depths our judiciary has sunk to. First, the totally unqualified Sotomayor, then the unqualified Kagan. Guaranteed she keeps the current administration updated.

  11. Jeremy R says:


    … great unwashed one … unqualified creature …

    Sheesh, would you please grow up? Thanks.

  12. michael reynolds says:

    Obviously it’s a washed-out law student now reduced to working as a janitor at the Supreme Court.

    His name is Tony.

    Shhh! I’ve already said too much!

  13. al-Ameda says:


    First, the totally unqualified Sotomayor, then the unqualified Kagan. Guaranteed she keeps the current administration updated.

    Unqualified? Did someone say Clarence Thomas?

  14. HarvardLaw92 says:

    Most likely a clerk, and a clerk who needs to be uncovered & terminated. This was completely unacceptable.

  15. HarvardLaw92 says:


    First, the totally unqualified Sotomayor, then the unqualified Kagan. Guaranteed she keeps the current administration updated.

    Interesting. Sotomayor was summa at Princeton and and editor at YLJ.

    Kagan was summa at Princeton, graduated (with honors) with a masters from Oxford, and magna from HLS, where she was supervisory editor of HLR.

    Frankly, they’re both eminently qualified to sit on the court. What I’d be interested in hearing is the basis on which you feel yourself qualified to judge THEIR qualifications. So enlighten us all as to your own, if you please.

  16. Jeremy R says:

    National Review’s Ramesh Ponnuru spoke on a Princeton Panel on 6/1 and implied he had an inside source who told him about the Roberts vote switch. He used the same word Jan Crawford used from her source — “wobbly”.


    Barton Gellman

    Ponnuru: inside sources at Supreme Court (really?) tell me the initial vote was 5-4 against Obamacare, but Roberts since turned wobbly.

    8:12 AM – 2 Jun 12 via UberSocial for BlackBerry · Embed this Tweet


    Barton Gellman

    @Karoli @professorkck @RameshPonnuru Ramesh spoke on a Princeton panel on 6/1. Implied he had an inside source on the Roberts vote switch.

    1:52 PM – 1 Jul 12 via UberSocial for BlackBerry · Embed this Tweet

  17. OzarkHillbilly says:

    @Jeremy R:

    Sheesh, would you please grow up? Thanks.

    Hey Jeremy,

    You might want to wait for the Herbster to actually grow up before you thank him.

  18. Jpalm says:

    I think is was bull dyke!

  19. J-Dub says:

    “Who leaked at SCOTUS?”

    Sorry, that might have been me. Too many pints at The Dubliner. I had to go somewhere.

  20. legion says:

    Wow. For a post that specifically includes the words

    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.

    a lot of people are harshing on things we all explicitly admit are speculation. If you don’t have an opinion for/against some possible culprit (or at least a decent joke, like J-Dub), stay on the sidelines, ok?

  21. Littleberry says:

    “…bull dyke…”
    Oh… you must be referring to MRS Thomas. She is the ideal foil to be wielded by the totally inept MR Thomas.