Who’s the Supreme Court Leaker?

by Noam Scheiber | July 2, 2012

If for some reason you haven’t read the remarkable Jan Crawford piece about how John Roberts changed his vote on health care, then you really should. As Jonathan Cohn points out, Crawford is well-sourced and highly credible on matters involving legal conservatives, and she based her account on “two sources with specific knowledge of the deliberations.”

The obvious next question, as Orin Kerr writes, is “who leaked”? Kerr speculates that the leakers were justices, since it’s the kind of transgression that would be a career-ender for a clerk, and a clerk is really the only other person who might know what happened. But, then, which justices? 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. To wit:

Kennedy has long frustrated conservatives, because he occasionally joins with liberals to provide the key swing vote in cases involving social issues. They openly mock his writing style as grandiose and his jurisprudence as squishy - in other words, changeable and too moderate.
That's not entirely fair to Kennedy. In fact, there are underlying and consistent themes in his jurisprudence, much more so than in the jurisprudence of O'Connor. Kennedy has a libertarian streak, and he is skeptical of expansive government power over individuals. In fact, if there's an issue of an individual versus invasive government, Kennedy sides with the individual. ... 
Kennedy also is strong on issues of federalism - and is remarkably consistent. His opinion in a 1999 case, Alden v. Maine, is considered one of the Court's finest in that area. Ruling that states were immune from private lawsuits in state courts, Kennedy wrote: "Sovereign immunity derives not from the Eleventh Amendment but from the federal structure of the original Constitution itself." …
Those structural boundaries, Kennedy believes, help protect the individual from runaway government power, and are key components to protecting liberty.
All of that dovetails with Kennedy's position on the individual mandate in the health care law. Close associates of Kennedy never thought he would waver in the case once he recognized the federal mandate as an encroachment on individual liberty (points Kennedy later would make in his sections of the joint dissent).
In fact, Kennedy was the most forceful and engaged of all the conservatives in trying to persuade Roberts to stand firm to strike down the mandate. Two sources confirm that he didn't give up until the very end.

It would hardly be the first time a journalist repaid a highly-valuable source by casting him or her in a favorable light. (Ahem.) 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’t the source. For Kennedy, the gun isn’t just smoking, it’s downright ablaze. A little subtlety might have gone a long way here. 

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Source URL: http://www.newrepublic.com//article/104586/whos-supreme-court-leaker