PLANK JULY 3, 2012
“So much for the theory that the Court doesn’t leak,” a friend emailed me, dissing my TNR essay on Supreme Court secrecy in light of Jan Crawford’s blockbuster revelation about the internal deliberations behind the Obamacare decision less than a week after it was announced. “I am told by two sources with specific knowledge of the court’s deliberations that Roberts initially sided with the conservatives in this case and was prepared to strike down…the individual mandate,” Crawford said, on CBS’ Face the Nation. “But Roberts, I’m told by my sources, changed his views, deciding to instead join with the liberals.”
Crawford’s story is important, but it is not inconsistent with the thrust of my essay. I made clear that what the Court was good at keeping secret was not the deliberations behind an announced decision, but rather the outcome of a decision before it is publicly announced (i.e. what the Court “had decided”). “Because a Supreme Court term begins in October and ends by July,” I wrote, “secrets about the Court’s decisions last at most nine months, and usually (as with the health care case) a much shorter period. Such short-fuse secrets are relatively easy to keep.” I added that the deliberations behind an announced decision sometimes leak out after the decision is announced. “The Court is less successful in keeping its deliberations secret over the long-term,” I wrote. I added that “Clerks occasionally talk years after the fact.” This was a mistake in the sense that it was unduly charitable to the Court’s capacity to keep its deliberations secret after its decisions are announced. Crawford herself published a terrific book in January 2007, Supreme Conflict, that was chocked full of insider deliberations from the Supreme Court Term that had ended just six months earlier (which means that she had knowledge of the deliberations much earlier). I was wrong about the time frame in the past for deliberations behind decisions to leak out—it was much shorter than years.
I am less impressed with the claims that the Court’s decision and deliberations might have leaked before the decision was announced. There is a ton of hindsight bias in such claims. None of these supposed leaks made clear to the public the outcome of the Obamacare decision. The fact that the decision was a surprise to almost everyone belies the claim that there were real or credible leaks about the decision beforehand. I also find it hard to credit the stories suggesting that Chief Justice Roberts switched his vote under political pressure. That might have happened, of course. But there is no way to reach this conclusion from the two known facts that the Court received political pressure after oral argument and that Roberts changed his mind.
The most interesting questions, I think, are who leaked to Crawford, and what the effect will be on the Court going forward. As Orin Kerr has noted, the leak almost certainly came from the Justices or their clerks (or both). I am inclined to think that Crawford’s two sources were two Justices. My reasoning: Crawford is no longer a Supreme Court correspondent (that job for CBS is done by Wyatt Andrews), and during the last year she has mostly been covering the political campaign for CBS. It is doubtful, therefore, that she had relationships with the clerks that she could have used to extract such sensitive secrets in the short time frame between last Thursday and her revelation on Sunday. On the other hand, Crawford knows many of the Justices well from her many years covering the Court and from extensive interviews with many of the Justices. As her CBS page states:
Chief Justice John Roberts granted his first network television interview to Crawford, just one of the rare interviews she was able to obtain with a total of five of the Court's current members, as well as retired Justice Sandra Day O'Connor. Crawford also sat down with then-86-year-old Justice John Paul Stevens in his first television interview, as well as Justices Clarence Thomas, Antonin Scalia and Stephen Breyer.
In this light, I think it most plausible that Crawford was able to learn about the secret deliberations within just three days after the decision was announced through one of these many long-term relationships with the Justices. If I am right, then I worry about the effect of this leak on the Court in the future. This is not the first leak about Court deliberations. And it isn’t the first leak about deliberations from the Justices themselves (some of whom reveal deliberations in their papers after they retire or die). But it is the quickest such leak. It came in a case with the highest possible stakes. And the leak is being construed by many as revealing a politically opportunistic Chief Justice—either one who (according to some on the Right) caved to political pressure from the Left, or one who (according to some on the Left) changed his mind based on principle to preserve the Court’s institutional credibility, but not one who was guided by legal considerations, or by his famous umpire metaphor, in reaching what by all accounts is a contorted and legally unconvincing opinion to uphold Obamacare as a tax. If Chief Justice Roberts’ goal was to make the Court seem less political, he failed spectacularly. And if the goal of the Justices who (I speculate) leaked the story was to somehow punish Chief Justice Roberts for his switch, it is hard to see how this helps them, or the Court, going forward. All in all, an ugly situation—and one that is likely to grow uglier, since, as we know from the much more porous executive branch, opportunistic leaks encourage and beget ever-more opportunistic leaks.