Monday, July 2, 2012

Obamacare and the Court: Who Leaked?

As already seemed clear from the unsigned dissent, John Roberts changed his vote on the Constitutionality of Obamacare's insurance mandate. But the most interesting part of this story isn't the story itself. 

The most interesting part is this: who leaked?

It isn't likely to have been a clerk: the Court keeps a tight ship, and your average reserved, status-seeking Supreme Court law clerk would be unwilling to throw away the rest of his career to talk to CBS. It isn't likely to have been a liberal justice, as the entire tone of the article seems to have been set by conservative complains about Roberts' consistency. It isn't likely to have been non-legal staff, as the source apparently has personal knowledge of the first round's result. Taking that in mind, it seems likely that at least one of the conservative justices is so incensed at Roberts' decision that he's gone to the media to complain.

While I'm generally in favor of greater transparency in the Supreme Court, it's extraordinarily unusual for it to have externalized its disagreements in this way.. A leak of this scope seems like the very tip of a very large, very unpleasant iceberg. Roberts may have permanently (or semi-permanently) alienated himself from his most natural allies on the Court.

If that's the case, this is only the first of several 5-4 decisions and deeply-split concurrences -- though perhaps not the ones which conservative activists would have hoped for.


Neil Sinhababu said...

The article is unusually dismissive of Roberts' view that the mandate can be done as a tax. I think this supports the view that someone on the conservative side -- either a justice or a clerk with approval to do so -- was the leaker.

andrew long said...

I don't know, I think we were going to have to get something like this sooner or later. the textual anomalies were so egregious that they require an explanatory narrative. so they figured better to get it over and done with now, to put it to rest. It seems to me to be a more practical and face-saving exercise than a partisan and/or angry one.