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.