Evaluating the Supreme Court Leak

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In an article published on July 1, CBS described the process of how John Roberts flipped from his expected position to supporting the individual mandate and the Supreme Court campaign to bring him back into the conservative camp. The Court is notoriously tight-lipped. Even in their deliberations, clerks and secretaries are kept waiting outside while the nine justices argue the outcome of each case.

What is described in the article is a setting where John Roberts was going to vote to strike down the individual mandate with the rest of the conservative Justices on the Court while the public expected Justice Kennedy to be the deciding vote. Following his decision to uphold the mandate, the remaining four Justices, led by Justice Kennedy tried desperately to change his mind during a month-long campaign to bring him back to his original position.

What is more interesting about the article is the Supreme Court leak. What is said behind closed doors within the Supreme Court is very closely guarded. The press and the public is left to speculate as to the discussions that lead to decisions made by the Court and how internal politics operate on a regular basis. Having an inside source describing the process in which the Chief Justice is courted by other members of the bench is extremely rare.

This is rare is because of the consequences. A current clerk or secretary that is discussing internal operations with the press is making career-ending statements. This would be especially true when the source is still working for the Court. Former clerks have made statements about decisions several years down the road. But, fresh law school grads dropping information into the media stream is almost unheard of and foolish for any employee of the Court.

The proximity to the decision and the anonymity of the source sheds some doubt on the story and its accuracy. The first question of any Supreme Court leak should be: How would they know?

The question of why Roberts switched is still up in the air and we may never know why he flipped sides or what compelled him to do so. This is the answer that I’d be most curious about, but I don’t have any expectation of hearing that any time soon.