hen reporters were impatiently awaiting the Supreme Court's big decision on ObamaCare, former Solicitor General Paul Clement — who had argued the anti-ObamaCare side — smugly chided the political press: "The thing I've found most amusing is their complete inability to believe there will not be leaks," he told The Washington Post. "They are so used to covering the other two branches of government that they just assume leaks are absolutely inevitable." It turns out Clement was wrong. Just a few days after Chief Justice John Roberts shocked everyone by being the deciding vote to uphold almost all of President Obama's health care overhaul, the Supreme Court started leaking like a sieve. Here are three bits of news, or at least well-sourced gossip, to emerge from this rare look inside the secretive high court:
1. Roberts switched his vote midway through deliberations
Speculation as to why Roberts voted to save ObamaCare sprung up immediately, and the theory that he'd switched his vote followed soon after. But confirmation that the conservative chief justice actually had changed sides didn't come for three more days, in a detailed, insider account of backstage court deliberations from CBS News legal analyst Jan Crawford. Roberts abandoned his four fellow conservative justices in May, and then "withstood a month-long, desperate campaign to bring him back to his original position," Crawford reports, citing "two sources with specific knowledge of the deliberations."
2. And he reportedly wrote most of the dissent
Crawford says that Roberts' conservative colleagues were so angry at him for switching sides, they "refused to join any aspect of his opinion" and instead wrote their own unsigned group dissent, with the message: "You're on your own." If that were accurate, the rare unsigned opinion "would represent a powerful symbolic gesture" against Roberts, says Paul Campos at Salon. But according to "a source within the court with direct knowledge of the drafting process," that part of Crawford's account is "flatly untrue" and "pure propagandistic spin" from the conservative side. In fact, giving "a whole new meaning to the term 'swing justice,'" Roberts first drafted most of the dissent before switching sides and authoring his whole majority opinion. Who wrote the dissent is of minor interest, says Ian Millhiser at Think Progress, but it's big news "that the Supreme Court now appears to have sprung a second leak."
3. Conservative justices are believed to be the leakers
"The obvious next question," says Noam Scheiber in The New Republic, is "who leaked?" As The Volokh Conspiracy's Orin Kerr points out, this is only the type of knowledge justices and their top clerks would have, and "a clerk who leaked this and is identified has likely made a career-ending move." That points to a justice, probably Clarence Thomas, who has a particularly good relationship with Crawford, has a motive for making Roberts look bad, and is the justice "most likely to cast long-established practices aside due to a personal crusade," says Think Progress' Millhiser. For Crawford's second source, says Scheiber, "my money is on Anthony Kennedy." Surely he'd like to "redeem himself with conservatives and relinquish the turncoat title to John Roberts," and the "smoking gun" is that "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." I don't see why clerks are being ruled out, says Christopher Shea in The Wall Street Journal. Yes, they would be violating their secrecy oath, but given the stakes, "leaking about how things turned out as they did could easily be viewed as a patriotic, if difficult, decision."
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