July 5, 2012 · 4 Comments
Above: Chief Justice John Roberts with President Obama
By Marie Burns:
Perhaps you haven’t heard. The Supreme Court is leaking like an old wooden dinghy. Before I drown, allow me to unburden myself of some of the most fascinating news you won’t read in the New York Times – at least until it’s old news. After being treated these past few months to “insider” reports like this one from Jack Goldsmith, explaining in The New Republic “why the Supreme Court leaks less than the CIA,” it was delightful to learn that denizens of the Court have been spreading more gossip and dishing more dirt than the mean girls in my junior high school class.
To be fair to the New York Times, Adam Liptak of the Times is one of a very few major media writers to even mention the Supreme Court leaks at all. In a story published online Monday and in the print edition Tuesday, Liptak wrote of Chief Justice John Roberts decision in the Affordable Care Act case,
A report from CBS News on Sunday that he had changed his mind added to the anger…. The CBS News report, attributed to two sources with ‘specific knowledge of the deliberations,’ appeared to give voice to the frustrations of people associated with the court’s conservative wing. It was written by Jan Crawford, whose 2007 book, ‘Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court,’ was warmly received by conservatives. In a 2009 interview on C-Span, Justice Thomas singled her out as a favorite reporter. ‘There are wonderful people out here who do a good job – do a fantastic job – like Jan Greenburg,’ Justice Thomas said, referring to Ms. Crawford by her married name at the time.
Hazel Sheffield of the Columbia Journalism Review writes that “the media response [to Crawford's story] has been strangely muted, save for a brief mention of the leak far down in a piece by Adam Liptak of The New York Times and an opinion piece by the Washington Post’s Charles Lane.” I think Sheffield was too hard on Liptak. Liptak linked Crawford’s blockbuster story in the online version of his piece, and he used it to develop a major component of his own story: speculation – and evidence – that Chief Justice Roberts had switched sides, voting first with conservatives, then siding with the liberal justices to an extent that made him the swing vote in upholding most of the Affordable Care Act. Besides, I think the citation above counts for more than “a brief mention.”
That said, I do think the Times reporting falls short. In his story, Liptak glides over the Court intrigue that Crawford and others have brought to the fore. To develop this aspect of the story, we’ll have to examine the timeline of what we know – so far – about what happened when. This for me is the fun bit anyway.
March 26-28, Monday-Wednesday: in an extraordinary series of hearings, the Supreme Court heard arguments challenging the constitutionality of the 2010 Affordable Care Act. The crux of the suits against the ACA – in a theory developed by libertarian law professor Randy Barnett – was that the law’s individual mandate regulated “inactivity,” and this was not a Congressional prerogative inherent in the Constitution’s Commerce Clause. Barnett’s legal argument devolved into right-wing cries that the mandate was “destroying our freedoms” and served as a precursor to laws that would force us to eat broccoli, claims essentially and specifically embraced by Justice Antonin Scalia during oral arguments. But in a prescient post, Brian Beutler of Talking Points Memo reported on March 26,
In a little-noticed exchange Monday, conservative Supreme Court Chief Justice John Roberts may have tipped his hand that he’s entertaining the possibility that the health care law’s individual mandate can be upheld on a constitutional basis that’s different from the one supporters and opponents have made central to their arguments. For over a year now, observers and experts have assumed that the court’s final decision will hinge on the extent of Congress’ power to regulate interstate commerce. But the justices could also upend that conventional wisdom, and in a worrying sign for the plaintiffs on Monday, Roberts unexpectedly highlighted one way they could do that.
Beutler quoted Roberts’ remark to plaintiff’s counsel:
The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense. It’s a command. A mandate is a command. If there is nothing behind the command, it’s sort of, well what happens if you don’t file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime.… Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.
The constitutionality of the law under the taxing authority was the government’s second fall-back position, and Solicitor General Don Virilli did briefly argue it. Akhil Amar and Todd Brewster made the same argument in this Philadelphia Inquirer op-ed dated March 19; that is, before the Court heard oral arguments. It is essentially the same argument proffered in this amicus brief (which cites some of Amar’s scholarly work) on one of the ACA cases. Evidently, the argument impressed the Chief Justice.
March 27: The conventional wisdom was that the Affordable Care Act was in big trouble. Court-watcher Jeffrey Toobin, looking stunned, came out of the courtroom on Tuesday, and – appearing on CNN – described the morning hearing as “a train wreck for Barack Obama.” In a New Yorker podcast recorded two days later, Toobin elaborated on the train wreck: “The Solicitor General Don Verilli was met by this absolute torrent of hostile questions from the conservatives on the Court…, clearly indicating the direction the court was going.… Even the liberals on the Court were sort of frozen into silence….”
March 30, Friday: the Justices met in private conference to discuss the cases and take an initial vote. This is the customary practice. At the conference, according to Jan Crawford,
Roberts and the four conservatives were poised to strike down at least the individual mandate. There were other issues being argued – severability and the Medicaid extension – but the mandate was the ballgame…. Roberts was less clear on whether that also meant the rest of the law must fall…. The other four conservatives believed that the mandate could not be lopped off from the rest of the law and that, since one key part was unconstitutional, the entire law must be struck down. Because Roberts was the most senior justice in the majority to strike down the mandate, he got to choose which justice would write the court’s historic decision. He kept it for himself. Over the next six weeks…, Roberts began to craft the decision striking down the mandate.
Conservative John Fund wrote in a National Review blogpost Monday that he had learned from his own sources in the Court that
… after voting to invalidate the mandate, the chief did express some skepticism about joining the four conservatives in throwing out the whole law. At the justices’ conference, there was discussion about accepting the Obama administration’s argument, which was that, if the individual mandate was removed, the provisions governing community rating and guaranteed issue of insurance would have to go too but that the rest of the law might stand. The chief justice was equivocal, though, in his views on that point.
Fund implies that his sources might be different from Crawford’s, but in any event, his sources and Crawford’s are all likely conservatives.
April – Mid-May: This is the crucial period during which Roberts changed his vote. Crawford claims that during the period Roberts was crafting the Court’s opinion, “external pressure began to grow…. Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.” Roberts himself made a remark the day after handing down the decision that disputes Crawford’s assertion. Speaking to judges attending a judicial conference, Roberts said, “The last thing you want to do when you get home at the end of the day or wake up in the morning is read about your work. So, you just, I’m sure my colleagues do things differently, you try to avoid reading about it.”
Crawford writes that “There were countless news articles in May warning of damage to the court – and to Roberts’ reputation – if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld.” One “leading politician” who warned of damage to the court was Senate Judiciary Chairman Pat Leahy (D-Vermont). Warren Richey of the Christian Science Monitor backs up Crawford here, “President Obama and Senate Judiciary Committee Chairman Patrick Leahy (D) of Vermont, among others, made statements after oral arguments in the case suggesting that any decision overturning the health-care law would be the illegitimate work of conservative judicial activists on the Supreme Court.”
Yesterday Mark Tushnet wrote on Balkinization that
The evidence that the initial conference vote was 5-4 to strike down the ACA is pretty strong. Not only is there the internal stylistic evidence, but there were rumors before the decision to that effect. Within a couple of weeks of the arguments, I heard a rumor, sourced to a law clerk, that the Court had voted to strike the ACA down…. Several weeks later I heard that a Washington law firm – I forget which – was saying that the Medicaid expansion was going to [be] invalidated.”
May 14: Patrick Leahy delivered a speech on the floor of the Senate appealing to Justice Roberts to uphold the Affordable Care Act. Stewart Baker wrote a post at the Volokh Conspiracy on July 1 questioning Leahy’s timing and motives:
Why, I wondered at the time, would the chair of the Judiciary Committee risk the appearance of trying to harshly strongarm the Court when his remarks wouldn’t make the slightest difference? Equally weird was the senator’s focus on the Chief Justice at a time when most Court-watchers still expected Justice Kennedy to play his traditional swing-vote role. But Senator Leahy’s remarks don’t even mention Justice Kennedy. Instead, he zeroes in on the Chief, offering only the thinnest of justifications … The Leahy speech reads like it was written for an audience of one. It offers flattery and it offers threats, all of them personalized to appeal to Chief Justice Roberts alone. Now, though, CBS News tells us that the Chief Justice was the defenders’ only hope for a fifth vote – and one that started looking ‘gettable’ right around the time of Senator Leahy’s remarks. Suddenly, the Senator’s remarks look a lot less foolhardy. In fact, they look like a miraculously prescient and well-timed gamble. So well-timed and prescient a gamble that I can’t help wondering whether it was a gamble at all.
That is, Baker thinks Leahy knew the Chief Justice was wavering, and he knew it because somebody at the Court leaked to him. If Baker is correct, then Leahy almost certain had a different source inside the Court than do Crawford and Fund. (Tushnet heard second-hand accounts, so no telling what political leanings those leakers might have had.) The conservative-leaning justices or clerks who spoke to Crawford and Fund would have no incentive to clue in Leahy.
According to Crawford,
… it was around this time that it also became clear to the conservative justices that Roberts was, as one put it, ‘wobbly.’ … Regardless of his thinking, it was clear to the conservatives that Roberts wanted the court out of the red-hot dispute…. Roberts … withstood a month-long, desperate campaign to bring him back to his original position…. Ironically, Justice Anthony Kennedy — believed by many conservatives to be the justice most likely to defect and vote for the law — led the effort to try to bring Roberts back to the fold. ‘He was relentless,’ one source said of Kennedy’s efforts. ‘He was very engaged in this.’ … Two sources confirm that he didn’t give up until the very end.
Roberts then engaged in his own lobbying effort – trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as ‘arm-twisting.’ Even in Roberts’ opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy’s vote…. But Roberts didn’t focus entirely on Kennedy, the sources said. He tried to persuade the conservatives to join at least the parts of his opinion with which they agreed, such as his Commerce Clause analysis.
Prof. Paul Campos, in a Salon post published Tuesday, disputes Crawford’s version of how and by whom the opinions were drafted. He says that in fact Chief Justice Roberts wrote the bulk of both the majority opinion and the dissent. Roberts wrote what became the dissenting opinion first, but as he and his staff were writing it, Roberts began to have doubts. Then when he swtiched sides, he wrote the majority opinion. Campos writes,
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. This source insists that the claim that the joint dissent was drafted from scratch in June is flatly untrue.
In other words, we now have dueling leakers: the ultra-conservative clique v. the pro-Roberts leaker(s).
May 25: Conservative Washington Post columnist George Will wrote that he found Leahy’s speech outrageous. Will wrote,
Leahy intimated that overturning Obamacare would be as momentous, as divisive of the nation and as damaging to the court as was Bush v. Gore, which he asserts ‘shook the confidence of the American people in the Supreme Court.’ … Leahy unsubtly intimated that to avoid ‘another 5-4 decision’ Roberts should emulate ‘the leadership that Chief Justice Warren provided in the unanimous decision in Brown v. Board of Education.’
Here, the New York Times can take a shallow bow. Last week, before Crawford’s leak story broke, Linda Greenhouse – long a Supreme Court reporter for the Times – wrote in her regular Times “Opinionator” piece:
Around Memorial Day, a number of conservative columnists and bloggers suddenly began accusing the ‘liberal media’ of putting ‘the squeeze to Justice Roberts,’ as George Will expressed the thought in his Washington Post column. ‘They are waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional,’ Mr. Will wrote. Although the court has been famously leakproof, Mr. Will and some of the others are well connected at the court, and I wondered at the time whether they had picked up signals that the chief justice, thought reliable after the oral argument two months earlier, was now wavering, and whether their message was really intended for him.
So there you have Greenhouse speculating that Will and other conservative pundits were the recipients of conservative leaks.
June 1: According to Jan Crawford, the Chief Justice’s proposed opinion is scheduled to be circulated.
June 2: Tuesday Orin Kerr of the Volokh Conspiracy published remarks made by the National Review‘s Ramesh Ponnuru – speaking at a Princeton alumni event – on June 2, the week after Will wrote his column about Leahy and weeks before the Court released its opinion:
My own sort of educated guess, based on people I talk to at the Supreme Court, is that – Well, as I’m sure people know, there’s an initial vote the same week, on the Friday of the oral arguments. And my understanding is that there was a 5-4 vote to strike down the mandate and maybe some related provisions but not the entire act. Since then, interestingly, there seem to have been some second thoughts. Not on the part of Justice Kennedy, but on the part of Chief Justice Roberts, who seems to be going a little bit wobbly. So right now, I would say, [the outcome of the case] is a little bit up in the air….
So in early June Ponnuru revealed in a public forum, in response to a question, that he “talked to people at the Supreme Court” and those “people” led him to an “understanding” that proved to be exactly accurate. Since the ruling came as a stunning surprise to observers outside the leak loop, Ponnuru obviously had good sources. There was a whole lotta leakin’ goin’ on. And those leaks were going to people of influence; they weren’t just pillow-talk. Notice, too, that Ponnuru is speaking just the day after Roberts’ opinion was presumably circulated to the other justices.
June 15: the dissenters’ response is due to be circulated. According to Crawford, “they divided up parts of the opinion, with Kennedy and Scalia doing the bulk of the writing. 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.” According to Campos, that’s not the way it happened; the dissent was a kind of sloppy rewrite of Roberts’ original opinion, with an add-on written by one or more of the conservative justices.
June 28: the Court released the ruling on the Affordable Care Act. Reporters received hard copies of the ruling at the same Chief Justice Roberts himself began reading his ruling from the bench. The first part of his opinion covered his rejection of the argument that the Commerce Clause gave Congress the power to impose the individual mandate. CNN and Fox “News” assumed this was the whole case and, without reading the opinion, announced that the Supreme Court had struck down the individual mandate. It is later in his opinion, in a new section in which Roberts concurs with the liberals on the Court, that he – and therefore a majority – uphold the individual mandate as a function of Congress’s taxing authority.
The networks’ slip-ups bring to mind one last leak. John Fund writes, “The week before the Supreme Court announced its decision, the White House was clearly hinting to many in the media and on Capitol Hill that they expected a 5–4 opinion that would hinge on the taxing-power issue. Did someone leak?” Normally, I would pay little attention to John Fund’s observations about Democrats, but I think the answer to his question is “yes.” Michael Scherer of Time magazine reported on how the President got the news of the Court’s decision:
Barack Obama got to watch his own legacy crumble on live television, standing just outside the Oval Office where a flat screen broadcasts the feeds of four different cable news stations. ‘Supreme Ct. Kills Individual Mandate,’ one quarter of the screen read, and then another network followed with the same grim news…. The President did not speak. He just gazed at the monitor, looking anxious and puzzled, one aide said. Then White House Counsel Kathryn Ruemmler bounded in all smiles, her two thumbs raised in the air. One of her lawyers was at the Court, with a live audio feed from the hearing room. The networks had it wrong. ‘The Affordable Care Act has been upheld by the court,’ she told the President…. He gave her a hug. [Emphasis added.]
Scherer’s report is consistent with a report by Mark Landler of the New York Times, who wrote, “Mr. Obama, one official said, was absorbing the news with a quizzical expression.” Of course the aide or aides who characterized the President’s expression as “puzzled” and “quizzical” might have misread him or misled reporters. But I’m guessing they got it right. The President didn’t look “dismayed” or “distraught” or “angry” or “stoic” or however you might expect him to react to learning that the Court had stricken his signature legislative achievement. No, he looked “puzzled” or “quizzical” because the television news reports were inconsistent with what he already knew: that the Court had upheld most of the law. Obama must have trusted his source more than the TV reports.
As to why Chief Justice Roberts switched his vote, I don’t find the sane explanations much more convincing than the insane ones: that he was over-medicated or that President Obama had threatened the safety of his family. It is pretty hard to believe, for instance, that Roberts really cares when Democratic politicians harangue him. I think he changed his vote because the conservatives on the Court refused to be reasonable while, by contrast, the liberals engaged him. The one part of the law that the Court struck down was a provision that allowed the federal government to penalize states which did not expand their Medicaid program in compliance with the ACA. All four of the other conservative justices agreed on that part of Robert’s ruling. So did Justices Stephen Breyer and Elena Kagan, two moderates often described as liberals.
I have thought since shortly after President Obama nominated Kagan that she had the interpersonal skills to sway Roberts. She demonstrated them when she was dean of the Harvard Law School and had to work with Bush administration personnel, and she was charming to Republicans on the Senate Judiciary Committee during her confirmation hearings. Breyer has a reputation for getting along well with the Court’s conservatives: David Margolick and others in a Vanity Fair story on Bush v. Gore, wrote some years back, “An affable and engaging man, Breyer has long been the moderates’ most effective emissary to the Court’s right wing.”
Of course I don’t think it was only Breyer’s and Kagan’s personalities or their flexibility that changed Roberts’ mind; I think their arguments and their presentations nudged him toward accepting the taxing authority argument. The Congress’s taxing power was a “good enough” argument and one the Chief Justice found persuasive from the beginning. Meanwhile, the conservatives on the Court refused to even consider salvaging the bulk of the Affordable Care Act, even though there is overwhelming precedent for maintaining the remainder of a law when the Court deems one or more sections unconstitutional. (Roberts did have other options, of course. He could have voted with the conservatives on the mandate and with the liberals on the other provisions of the law. This would have preserved much of the law, while striking the mandate and possibly other provisions that depended on the mandate. But there I think the upside for him – striking down the mandate – was not as compelling as the multiple downsides were troublesome.) I do think Antonin Scalia’s bullying and perhaps Clarence Thomas’s sullen indifference helped push the Chief Justice over to the other side. If it’s true, as a number of pundits suggest, that Anthony Kennedy was the leaker-in-chief, it is reasonable to accept Jan Crawford’s report that he pulled out all the stops. Some of those stops might have been rather unpleasant and off-putting. I don’t suggest this was an easy call for Roberts (even though liberal commentators say it should have been), but the conservatives’ stonewalling – contrasted with Breyer’s and Kagan’s “reasoned persuasion” – probably helped tip the scale.
Let’s end with Hazel Sheffield’s criticism of the major media for not picking up on the leak stories. Sheffield concludes, “Partisan media coverage aside, the true story here is that the leak looks suspiciously like backlash from the right-wing faction of a disgruntled Supreme Court – and that’s a scoop Jan Crawford shouldn’t be reporting on alone.”
I do think this speaks to a larger issue in the traditional media’s style of reporting on the Supreme Court. You might call that style “stenographic.” The Court speaks and the reporters write it down. In an April 2008 blogpost in Slate, Jack Shafer expressed his delight that Linda Greenhouse was leaving the New York Times. (She got a buyout, so she’s double-dipping now!) Shafer wrote,
While I hold the 61-year-old Greenhouse in great esteem and will miss her coverage, it’s worth noting that she had covered the Supremes for nearly 30 years. Disco was still big when she took the assignment. Starsky and Hutch was on television. In passing the baton from Greenhouse to 47-year-old whippersnapper Adam Liptak, the Times has a chance to reconceptualize its court coverage…. In the Web era, is the best use of the Times‘ column inches the traditional day-after-oral-arguments story and the day-after-decisions dispatches?
Shafer did not offer Liptak many suggestions. He did not, for instance, suggest Liptak break down and do some actual investigative reporting. I suppose the unpleasantness of developing the sorts of relationships with justices and Court personnel that might lead to interesting tips is a bit too tawdry for the high-toned reporters employed by the prissy Gray Lady. But in view of the plethora of leaks that apparently accompanied the ObamaCare deliberations, both before and after the Court released its decision, it seems to me the New York Times should reconsider it’s stenographic approach. As it stands, the best Times readers can hope for is reports on other people’s scoops. Daniel Stone, writing in the Daily Beast, sees the Supreme Court leaks as a sign of the Court’s “awkward shift to transparency and modernity.” Stone thinks
It’s likely Roberts and an internal investigator will get to the bottom of who spoke out of school. But one can hope that in doing so, Roberts might realize how tough it’ll be to keep holding the court back, cloaked in a system that denies TV exists, prohibits any informal public disclosures, and owes nothing to the people who gave its justices their jobs. The 19th century, after all, is only getting further away.
Stone might have written the same thing about the New York Times‘ reporting on the Court. At least for the moment, the Supreme Court is extremely partisan, and lately that partisanship has made it more transparent. On June 26, hours before the Court handed down its decision, Jeff Toobin wrote in the New Yorker, “The Court remains one of the few leak-proof institutions in Washington.” Later that day, after the Court released its decision, law professor Stephen Carter wrote a piece in Bloomberg News fairly gushing about the Court’s opacity:
The most fascinating aspect of the Supreme Court’s anticlimactic decision to uphold the Affordable Care Act isn’t the outcome. It’s that until the ruling was handed down, nobody outside the court knew what the outcome was going to be…. Smack in the middle of a city where leaks are a way of life, here was a pending action that pundits were proclaiming would determine President Barack Obama’s legacy, and the capital’s legion of political reporters was unable to ferret out the smallest advance hint of the court’s intentions — even though the initial vote probably came three months ago. The justices themselves, their law clerks and all the personnel of the court cooperate in maintaining the veil. In an era when we have become accustomed to a government that can’t keep its secrets, an institution whose members know how to keep their mouths shut is refreshing.
Maybe “reporters were unable to ferret out the smallest advance hint of the court’s intentions” but we know now it wasn’t because “members know how to keep their mouths shut.” It was more likely because reporters didn’t even bother to ask. Numerous Court insiders were opening up to anyone they thought might help their side. If Mark Tushnet is being truthful, any number of court-watchers around Washington were sharing stories about the Court’s deliberations, stories that derived from what would seem to be an unprecedented stream of leaks. Yet nobody in the major media picked up on any of the rumors (or if they did, they did not translate them into stories).
The character of the Court has changed, and the major media — including the New York Times — have ignored that change. The Times has not bothered to exploit this new dynamic of Court intrigue nor even to adapt to it. As a result, the news is coming from alternate sources – television, to be sure, but also from connected bloggers. Because of the Times‘ persistent tradition of fastidious transcription, readers have an incentive to go elsewhere in search of more up-to-date news. After all, it is fairly irritating to find out that some old fogies attending a forum at Princeton learned of the Supreme Court’s landmark decision almost four weeks before New York Times readers did.
Marie Burns blogs at RealityChex.com