ONE OF THE MOST UNUSUAL ASPECTS of the U.S. Supreme Court’s
decision upholding Obamacare was the speed with which journalists
punctured the court’s secrecy. Three days after the ruling in
National Federation of Independent Business v. Sebelius,
CBS’s Jan Crawford, citing “two sources with specific knowledge” of
the court’s deliberations, re ported that Chief Justice John
Roberts had initially voted to hold the individual mandate
unconstitutional, then changed his mind. Two days after that, lefty
law prof Paul Campos reported at Salon.com that “a source within
the court with direct knowledge of the drafting process” had
confirmed the Roberts flip but also claimed, contrary to Crawford’s
account, that the chief justice had drafted much of what ended up
being the dissenting opinion of four associate justices.
Whatever the truth of the details in dispute, and apart from the
legal merits of the case, the leaks reflect poorly on Roberts’
management. The Court looked like a dysfunctional executive agency
or political campaign, with aggrieved players pleading their cases
anonymously to the press.
Leaks from the Supreme Court are not unprecedented. “The court
has a long and colorful history of leaks that dates back to the
mid- 19th century,” wrote Jonathan Peters, a media lawyer and
fellow at the Missouri School of Journalism, at Slate.com in early
July.
That history turns out to be more fragmentary than long. It
starts in the 1850s, when the New York Tribune got wind of
the justices’ decisions in two different cases called
Pennsylvania v. Wheeling & Belmont Bridge Co. The
Tribune also “published a running account of the court’s
deliberations in Dred Scott,” the infamous 1857 case,
Peters writes. “Historians have speculated that the leaks came from
Justice John McLean, who authored the first bridge opinion before
dissenting in the second one, as well as Dred Scott.”
Peters’ history jumps ahead more than a century, to 1968, when
the New York Times reported on “Justice Abe Fortas’
extrajudicial activities”—advising then-President Lyndon B.
Johnson—“to support the Vietnam War.” But we don’t get any further
examples of leaks involving judicial business until 1972.
The Burger Court seems to have leaked like a sieve. Justice
William O. Douglas, an FDR appointee who remained on the court well
into his dotage, “wrote a memo to his colleagues about Roe v.
Wade,” a then-pending case, which was obtained by the
Washington Post. Douglas “was assumed to be the leaker,”
but in a letter to Chief Justice Warren Burger, he proclaimed
himself “upset and appalled” and insisted he had “never breathed a
word” about the case to outsiders.
Later, Time “published a story about the Roe v.
Wade decision before the court announced it, reporting the
outcome and the 7-2 vote.” The chief justice “demanded a meeting
with Time’s editors, chastising them for scooping the
court.” This time, he believed the leak had come from a clerk, so
he issued a dictum that clerks were never to speak to
reporters.
Perhaps that would have been more effective if he’d used the
taxing power. In 1977, NPR’s Nina Totenberg “penetrated the
justices’ conference by reporting that they had voted 5–3 not to
review the convictions of three defendants in the Watergate
cover-up cases.” This was a politically charged vote: According to
Totenberg’s report, Burger, an appointee of President Nixon, had
delayed the case in hope of finding the fourth vote needed to grant
review. But all five non-Nixon appointees voted “no,” and Justice
William Rehnquist, who had served in the Nixon Justice Department,
disqualified himself.
Between 1979 and 1986, ABC’s Tim O’Brien scooped the court three
times by reporting decisions before they were publicly announced.
Burger retired after the 1985–86 term, and Rehnquist took over as
chief justice. At that point, to hear Peters tell it, the leaks
more or less stopped. His next example is a 2004 leak by former
clerks about deliberations in Bush v. Gore. But that case
was decided in 2000, so the leak was far from contemporaneous.
Yet there was at least one major leak during the Rehnquist
Court. As in the Obamacare case, it involved a decisive switch in a
politically charged case: Planned Parenthood v. Casey. In
September 1992, columnists Rowland Evans and Robert Novak reported
that Justice Anthony Kennedy had initially joined Rehnquist to
reverse Roe but flipped and joined four other justices to
uphold the 1973 decision’s “core holding.” “What happened to
[Kennedy] is obscured by judicial secrecy, a curtain of silence
broken only by whispers of law clerks and a small paper trail,” the
duo wrote. Terry Eastland, then this magazine’s Presswatch
columnist, later wrote that “my own sources” had confirmed
Kennedy’s flip (see “The Tempting of Justice Kennedy,”
TAS, February 1993).
THE EVANS AND NOVAK REPORT came nine and a half weeks after the
case was decided. In the Obamacare case, by contrast, the leaks
appear to have begun while deliberations were still under way. In
early June, National Review’s Ramesh Ponnuru, speaking on
a Princeton University panel, offered an “educated guess, based on
people I talk to at the Supreme Court,” that the vote had initially
gone 5–4 to strike down the individual mandate, but added that
“there seem to have been some second thoughts” from Roberts. I
heard a rumor to the same effect at roughly the same time, although
my source was not somebody inside the court.
In an op-ed for TheDaily.com, Cato Institute scholar Walter
Olson speculated about the possibility of leaks from the liberal
side:
It’s now clear that deliberations at the court leaked before all
the justices had made up their minds—which, in a disastrous portent
for the court’s political independence, led to outside campaigns
aimed at the wavering Roberts. In a May 14 speech, to quote one
report at the time, Sen. Patrick Leahy, D-Vt., “directly addressed
Chief Justice John Roberts, urging him in a sharply partisan tone”
not to overturn the law.
Washington lawyer Stewart Baker has pointed out how strange that
timing was: Since conference had been held six weeks earlier,
anyone not in possession of confidential information would have
assumed it far too late to persuade Roberts of anything. What did
Leahy—and other Washington actors who jumped into the same debate
in May—know, and when did they know it?
Those “Washington actors” included liberal members of the press
like the Times’ Linda Greenhouse and Slate’s
Dahlia Lithwick. But the pressure campaign actually started more
than a month before Leahy’s statements.
On April 2, five days after oral arguments concluded, President
Obama himself delivered a lecture to the justices: “Ultimately I’m
confident that the Supreme Court will not take what would be an
unprecedented, extraordinary step of overturning a law that was
passed by a strong majority of a democratically elected
Congress.”
Many of the president’s critics interpreted his words as an
attempt to intimidate the justices into ruling his way—which the
chief justice ultimately did, regardless of motivation. Several
readers wrote to me at the time that perhaps Obama had received an
ex parte communication—a far more serious ethical breach than a
leak to the press—that the initial vote had gone 5–4 against
Obamacare. I thought such speculation absurd, because the high
court’s deliberations are strictly confidential. That premise, at
least, now seems to have been erroneous.
