SCOTUS Conservatives in Anonymous Disarray

I expressed skepticism about the part of Jan Crawford’s story confirming John Roberts flipped his vote on ObamaCare that claimed Roberts had no role in writing the dissent.

Finally, there is Crawford’s not entirely convincing explanation for the relics in the dissent that seem to suggest Roberts had a hand in crafting the dissent, too.

The two sources say suggestions that parts of the dissent were originally Roberts’ actual majority decision for the Court are inaccurate, and that the dissent was a true joint effort.

The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

If true, those relics, which violate normal protocol for referring to other opinions, reflect a very big affront to Roberts’ governing opinion.

Salon now has a single anonymous source disputing Crawford’s two anonymous sources on this point.

Crawford’s sources insist on the claim that the joint dissent was authored specifically in response to Roberts’ majority opinion, without any participation from him at any point in the drafting process that created it. It would, after all, be fairly preposterous for the four dissenters to jointly “author” an opinion that was in large part written originally by the author of the majority opinion to which the joint dissenters were now so flamboyantly objecting.

Yet that, I am told by a source within the court with direct knowledge of the drafting process, is exactly what happened. My source insists that “most of the material in the first three quarters of the joint dissent was drafted in Chief Justice Roberts’ chambers in April and May.” Only the last portion of what eventually became the joint dissent was drafted without any participation by the chief justice.

[snip]

Roberts’ chamber did much of the drafting of the [first 46 pages of the dissent, which don’t mention Roberts’ opinion], and none of the [last 19 pages, which do mention it]. In short, it appears Chief Justice Roberts ended up in large part authoring both the majority opinion and the dissent in National Federation of Independent Business v. Sebelius.

Set aside the fact we’ve got a anonymous leak war going on, with neither side inherently garnering credibility. Set aside what Salon’s report, if correct, would suggest about Roberts.

I want to focus on what it means that comity in the court has broken down in this way. If Crawford’s report comes, as many suspected, from the conservative justices themselves, it would suggest they leaked a transparently illogical cover story (in that it didn’t explain the relics that made everyone suspicious about the dissent in the first place). They not only broke SCOTUS protocol about leaks, but did so and, reportedly, lied in doing so.

Then you’ve got a quick response from someone–could this be a Roberts clerk? one of the other conservatives?–calling out that purported lie.

To what end? To shift the emphasis on Roberts’ fickleness? To try to tone down the confrontational claims at the heart of the Crawford piece? And if another of the conservatives is behind the Salon report, then how do the original leakers feel about the story? What are the political objectives of each side of this anonymous leak war?

And all this is just what we can see through the screen of anonymity. The rancor this expresses must be worse in person.

Even if it’s all anonymous, I gotta say, I’m glad this leak fest has revealed the conservative justices in all their bitchy glory.

Update: Lyle Denniston hits some of these same issues, though based solely on the Crawford article before the Salon one came out. In addition to pointing out some more reasons to doubt the story in Crawford about who wrote the dissent when, has this to say about the impact of this leak war.

Whatever the facts about the drafting of the opinions, their sequencing, and their legal points, the fact that all of this internal deliberation has been shared with a news reporter by someone “with specific knowledge” is a departure from the Court’s norm of keeping such things to itself, and that alone can leave a trail of bitternesss and recrimination.  When the famous book The Brethren came out in 1979, filled with revelations about internal deliberations, the Court’s internal dealings were affected for months, and the Justices even closed off some of their hallways and denied media access to them.  There also were long-running recriminations over who had been the source or sources.

But the prospect of lingering impact of the CBS story is not due only to the fact of the leaks.   The content itself is a public rebuke of Roberts, from inside the Court, and amounts to a direct challenge to his ability to lead the Court and to take steps — if that was what his position on the health care law was intended to do — to insulate the Court from the partisan polarization that so dominates the rest of Washington

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

18 replies
  1. BSbafflesbrains says:

    Scotus is irrelevant, incompetent, and immaterial in legal and laymans terms.

  2. Phil Perspective says:

    I am beginning to believe that Thomas or Fat Tony leaked, but I don’t think it went down like the supposed leakers said. Roberts isn’t a Teahadist like Sammy, Clarence or Fat Tony. He’s a Chamber of Commerce/Big Business Conservative. He had to know, or was soon somehow notified, that big business wanted more of that big gubmint cash.

  3. allan says:

    It’s ironic that the Originalists on the Court would form a circular firing squad of flying attack monkeys,
    when Article III says nothing about that whatsoever.

  4. MaryCh says:

    Denniston’s second paragraph in your update sounds like the Republican party in a petri dish.

    Popcorn doesn’t seem fitting, though, so please pass the beer and pretzels.

  5. Scarecrow says:

    I think we should all be relieved to learn that instead of being sloppy and lazy writers, as the first read if the “dissent” showed — in addition to being lazy jurists unwilling to read the statute to discern that measures to identify worthwhile health care in Medicare have nothing to do with forcing younger people to buy private insurance — the conservative jurists are now deliberately leaking to the reporter Thomas likes that they’re only petty, mean and immature.

    It must be like a kindergarten there during conference.

  6. Scarecrow says:

    I can think of two excuses for what’s going on. First, the 5th man thought this was going to be his great moment to protect individual freedom from government. Robert’s “a penalty is a tax” and that doesn’t violate your stupid liberty argument crushed that.

    The second is that Alito/Scalia/Thomas — and even Roberts — have been waiting for the change to definitely reverse the whole jurisprudence of the expansive Commerce Clause and spending clause, crush the New Deal legal framework in one swift blow, and do it ina way that takes down the Kenyan Socialist. It was a perfect set up, and Robert’s blew it.

    They got greedy, and now can’t forgive Roberts for postponing the radical reversal they wanted, even though all the principles to allow it are now in Robert’s “majority” opinion. It’s the most pregnant decision I’ve ever seen, but what is that thing slouching towards Bethlehem to be born?

  7. JTM says:

    If she hasn’t already, this is going to get really fun when Virginia Thomas gets going.

  8. emptywheel says:

    @JTM: You missed my tweets musing on what kind of drunken voice mails she’s leaving Roberts while he’s in Malta.

  9. GulfCoastPirate says:

    Do the friends of Roberts at the Chamber really want the Commerce Clause struck down in the same way as the three who want to undo the New Deal? With big government came big government revenues to the chamber members. Maybe a whole lot of people other than Roberts began having some second thoughts about going down the Thomas-Alito-Scalia road.

  10. phred says:

    @JohnT: Hahahahahaha, ah JohnT, you made my day. That entire exchange was a hoot : ) I’m going to quietly chuckle myself to sleep : ) Thanks : )

    I once had a KGB spy ask me for a copy of my poster, does that make me special? ; ) Heeheehee, chortle, snort. Sigh. Priceless.

  11. DeadLast says:

    I think Roberts panicked when he saw that the conservative Supreme Court was really about tyrannical overthrow of democracy disguised as “founding father-ism”. The court is responsible to make sure that laws are legitimate and do not unnecessarily overrun the rights of individuals or subsets of the population.

    For a democracy to function, you can’t replace “demo” with “theo”. I think Roberts finally had his come to Jesus moment …
    …and he backed up two steps.

  12. MadDog says:

    In answer to EW’s tweet about “David Ruffley sucker punching the wily and evasive Diamond”, I’m watching it live on TV on Comcast channel 187 for the BBC.

    It is also live on the BBC’s website here.

  13. GulfCoastPirate says:

    Do all these CEO’s have to learn the Sgt. Schultz ‘I know nothing’ defense strategy before or after they accept their jobs?

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