John Roberts, Conservative Outcast, and the Supreme Court’s Unprecedented Leak

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Stephan Savoia / AP

Chief Justice John Roberts, in Providence, R.I.

So much for weeks of chatter about how the Supreme Court is the last hermetic institution in Washington. CBS News has its hands on a once-in-a-lifetime scoop: someone with intimate knowledge of the court’s health care deliberations has provided an account of the decision of Chief Justice John Roberts to reverse course in May and the intense but ultimately ineffective campaign by conservative Justices to change his mind. Supreme Court leaks — especially one originating so close to the bench and coming just a few days after a ruling of such gravity — are virtually unheard of, even if all the circumstances the story describes are not.

Though conservatives seem to be taking Roberts’ flip as evidence of the Chief Justice’s squishiness — and are generally working themselves into a lather over the Bush appointee’s betrayal — switching positions late in the game is not a new phenomenon on the court. Justice Anthony Kennedy famously swapped sides in 1992’s Planned Parenthood v. Casey to uphold abortion rights, and toggles between positions more readily than most. Massimo Calabresi and David Von Drehle relayed a relevant anecdote in their recent profile of the Justice:

In one famous incident, Scalia went for a walk with Kennedy before the Casey abortion case was decided and came away from their heart-to-heart discussion confident that they would vote together. The next day, Kennedy went the other way.

This time, according to CBS News, it was Kennedy who did the lobbying. The story describes him as “relentless” until the very end, and “the most forceful and engaged of all the conservatives in trying to persuade Roberts.” That quote is telling.

I claim no inside knowledge whatsoever of the court or this story, but all leaks happen for the same reason. In a recent piece about why national-security officials give reporters classified information, Steven Aftergood wrote, “They do so not to subvert policy but to explain it, to defend it and to execute it.” In this case, it looks as if conservative members of the court felt the need to explain publicly why the decision went against them, defend their efforts to prevent the outcome and vent a little spleen.

It’s not necessarily an angry clerk gone rogue either. Former Kennedy clerk Orrin Kerr writes:

If clerks did this, it was just crazy: A clerk who leaked this and is identified has likely made a career-ending move. It’s true that a group of OT2000 clerks leaked the details of the deliberations in Bush v. Gore, and as far as I know they did not face consequences. But that was in the fall of 2004, almost four years after the decision, and my sense is that at least some of the leaking clerks were already comfy in academic jobs and no longer practicing.

CBS’s story claims knowledge of the thoughts of conservative Justices and seems to transmit their version of why Roberts flipped:

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But 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.

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.

We tried to talk him out of it, but President Obama and the liberal New York Times were just too powerful is not a narrative I imagine Roberts would endorse. Politics and public perception undoubtedly weighed on the Chief Justice (as it surely did on the rest of the court), but so did the precedent he was setting. Conservatives considered the structure of his opinion — which applied a heretofore-obscure argument that the individual mandate is a tax — ridiculous. “To say the individual mandate merely imposes a tax is not to interpret the statute, but to rewrite it,” the minority wrote. Roberts’ reply was that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” His vote, in theory, was for restraint of both congressional and judicial power.

That’s a lonely position, though. Conservatives are furious. Roberts’ fellow conservative jurists didn’t mention him by name in their dissent because “they no longer wished to engage in debate with him.” One Justice, according to CBS, said the right wing of the court effectively told Roberts, “You’re on your own.” They washed their hands of the ruling. Clearly, that’s something they want the world to know.

120 comments
Gin Heedneeds
Gin Heedneeds

G-ESTEEM-PEOPLE WHO EDUCATED THEMSELVES amp; EVOLVED INTO THE MOST HAPPY AMERICANS USUALLY RED NECKS amp; PRO-BLACKS(STAY BOW-LEGGED amp; THICK).

 

"If god is with me than who can be against me? I can do anything.G-ESTEEM

 

Teach me it's more to being a man than feeling up your thigh.For Breast Cancer.G-ESTEEM (w/ pic of President Obama amp; Wife).

 

STAY BOW-LEGGED amp; THICK.G-ESTEEM(Presidential Election Nov 6, 2012) 44-Life

Duncan Tweedy
Duncan Tweedy

Clarence Thomas has gone six years without asking a single question during oral arguments of cases before the Supreme Court.  In 40 years, there is no record of any other justice remaining mute for even one term, never mind 6 consecutive ones.  During his first 15 years on the court, he asked a grand total of only 11 questions.

Thomas has defended his silence by attributing it to "Southern manners".  He evidently feels that it is somehow rude to interrupt lawyers with penetrating questions.  Others have concluded that Thomas is insecure and out of his depth in the rapid fire intellectual jousting that oral arguments entail. 

Whichever is the case, and I tend to think it is the latter reason more than Thomas' own excuse, when a comprehensive analysis of Thomas the Justice and Thomas the man is concluded, the most convincing explanation for Thomas' mutism is simply that his mind is already made up.  In other words, his mind is closed to any new arguments that might cause him to reconsider. 

This, and other traits, make Thomas perhaps the least competent Supreme Court Justice in at least 80 years.  The man would be a joke if he weren't such an incredibly destructive force in our country.  Hundreds of disastrous decisions have been tipped by his vote, including possibly the worst SCOTUS decision ever, Bush V Gore, in which Thomas failed to recuse himself despite the fact that his wife was employed by GWB to hire staff for his new administration--an administration that wouldn't have existed w/out Thomas' vote!  (Many would claim with much justification that the Dredd Scott case was a worse SCOTUS moment; however, the full extent of the destruction wrought by GWB is still unfolding and thus the scale of the disaster can't yet fully be appreciated).

A miserable justice like Thomas would be hard enough for our nation to bear.  But we also must endure Scalia at the same time.  Scalia has gone on record declaring that "The Constitution does not protect women from discrimination."  This is only the smallest example of the logic which prevails in Scalia Land, a truly terrifying place which he tries to make our country more similar to with every misbegotten ruling.

So we are burdened with not one, but two of the worst Supreme Court justices in history at the same momentous time.  Only luck saved us from a Chief Justice Harriet Myers, whose legal gravitas would have made Thomas seem brilliant in comparison.  We got Roberts instead.  After the democracy crushing Citizens United, we thought that was no rescue at all.  However, the ACA ruling has at last proven that at least somewhere inside Roberts there exists a serious legal mind respectful of the power and precedents we have invested in our third branch of government.  Let's all hope we see more of this independence from Republican dogma in our Chief Justice.  For he's a young man still, and we are likely to have many more years of Thomas and Scalia to go.

Eric Honeyman
Eric Honeyman

Come on, the leak is from clarence thomas's wife. That is not hard to figure out.

Transorbital
Transorbital

"Conservatives are furious," says the article. Conservatives are always furious. That's part of being conservative, as far as I can tell. Self-righteous anger pretty much comes with the turf.

"200 years of precedent wherein the Supreme Court does not leak its deliberation process? Screw that! I'm furious!" I'd say that such a mentality is shocking, except it is not. It is just being a conservative.

KatMan
KatMan

I have been as vocal as anyone about Roberts right wing leanings and my disgust with the court for some time. Roberts went against those radical republicans because the damage done by Citizens United is now so evident even the dead can see it changed America from a democratic republic to a Marxist state leaving the rest of the world to laugh at how easy we were enslaved by the greedy.

Melissa Mello E Souza
Melissa Mello E Souza

What is going on is simply egregious.  It just shows the lack of quality--and I'm talking personal now--of these radical Justices. There is no honor here, nor decency.  These bloodthirsty radicals went all out for Armageddon--they wanted to destroy the Law completely--and they can't accept that their colleague has an inkling of rationality left-and inkling that they, as extremists, can not even fathom.  Thomas' wife is a representative of the health insurance industry. She's been actively campaigning as a Tea Party activist against the Law for years.  If this man had any dignity, of which he knows nothing, he should have recused himself.  Scalia goes duck hunting with Dick Cheney just before very sensitive rulings involving executive power over fundamental issues.  These men are increasingly becoming a disgrace to the institution they serve.

MACV
MACV

I applaud Scalia, Kennedy, Thomas and Alito; they have done what no one else could do.  They have turned Chief Justice Roberts into Earl Warren!

The Republic is saved ... on another thought, did you know that 49% of Republicans don't know what GOP stands for? (Vanity Fair ~ 2011)

It figures ....

bluesdoc70
bluesdoc70

Speaking of washing your hands..Roberts washed his hands like Pilate washed his after betraying justice...Because he listened to the mob just like Pilate.  He deserves the same contempt.

oldprofessor
oldprofessor

There are situations that call for a punt.  Roberts found himself....and the country.... in a situation that called for a punt.   Roberts  kicked  a good one.  The game goes on.

thylawyer
thylawyer

@paulejb Dicta, schmicta.  If you think the House majority will not use CJ Roberts words when they find them useful, I have a bridge to sell you, and, of course, lawyers are carefully taught how to argue for or against a proposition, including what words in an opinion are "mere dicta." Whatever happens in November, the decision will stand. If Democrats win back the House and keep the White House, the dicta will be used to turn the SCOTUS into a dictator barring any new social legislation and the undoing of "entitlements"

Gin Heedneeds
Gin Heedneeds

G-ESTEEM-PEOPLE WHO EDUCATED THEMSELVES amp; EVOLVED INTO THE MOST HAPPY AMERICANS USUALLY RED NECKS amp; PRO-BLACKS(STAY BOW-LEGGED amp; THICK).

 

"If god is with me than who can be against me? I can do anything.G-ESTEEM

 

Teach me it's more to being a man than feeling up your thigh.For Breast Cancer.G-ESTEEM (w/ pic of President Obama amp; Wife)

 

STAY BOW-LEGGED amp; THICK.G-ESTEEM(Presidential Election Nov 6, 2012) 44-Life

Gin Heedneeds
Gin Heedneeds

G-ESTEEM-PEOPLE WHO EDUCATED THEMSELVES amp; EVOLVED INTO THE MOST HAPPY AMERICANS USUALLY RED NECKS amp; PRO-BLACKS(STAY BOW-LEGGED amp; THICK).

 

"If god is with me than who can be against me? I can do anything.G-ESTEEM

 

Teach me it's more to being a man than feeling up your thigh.For Breast Cancer.G-ESTEEM (w/ pic of President Obama amp; Wife)

 

STAY BOW-LEGGED amp; THICK.G-ESTEEM(Presidential Election Nov 6, 2012) 44-Life

Haskell Nixon
Haskell Nixon

NO, But you can blame it on the republicans that have voted NO on every bill that has come up that would benifit the unemployed or the economy.

paulejb
paulejb

Haskell Nixon,

Are you referring to the 20 something jobs bills that passed the Republican House and died in the do-nothing Democrat Senate.

Your party hasn't even bothered to pass a budget in 3 years. Those bums are the biggest free-riders on the planet. We should dock their pay.

Haskell Nixon
Haskell Nixon

The whole problem with the republicans is two words PARTY FIRST. and that even goes over to the supreme court. it seems that roberts wants to play with the rules. which are follow the law. the other republicans on the bench all want to play the party first line and the law be dammed. as for thomas he never does anything but sit there until scalia pulls his strings. he is just a puppet. if romney is elected you can bet there will be two or three more thomases or scalias on the bench.  

paulejb
paulejb

Haskell Nixon,

And the four liberal lock step voters on the Court are all just potted plants, eh, Nixon?

paulejb
paulejb

While we have been distracted by high court shenanigans the economy is showing signs of collapse.

"Manufacturing in the U.S. unexpectedly shrank in June for the first time since the economy emerged from the recession three years ago, indicating a mainstay of the expansion may be faltering."

http://mobile.bloomberg.com/ne... 

Can't blame this one on Mitt, people.

oldprofessor
oldprofessor

Let's blame it on the Republican Party of NO and their focus on defeating Obama and ..their attitude of "to hell with the country...we want ours".

paulejb
paulejb

It's Tuesday, July 3, 2012 and John Roberts decision is still inexplicable. Maybe he was just mad at us for some perceived slight? Maybe he believes we deserve what we get for electing thieves and mountebanks to high office. Or maybe Barack Obama promised him a ride on AIR FARCE ONE. Your guess is as good as mine.

oldprofessor
oldprofessor

Maybe he decided common sense was on the liberal side.

Haskell Nixon
Haskell Nixon

Lets see. you are another fox news far right wing nut bigot rush limbaugh loving evangelical dunce, right.

bluesdoc70
bluesdoc70

 Fox news...Let me guess you watch Al Sharpton. LOL

paulejb
paulejb

Haskell Nixon,

How original! Another lib who believes that his rant hasn't been heard a gazillion times before. 

Have they been keeping you in mothballs, Nixon?

Steve0T
Steve0T

"Your guess is as good as mine"

 No sport, you need to have a very malicious, hypocritical and bigoted mindset to even begin to know what's on your mind. Most can't reach that standard.

paulejb
paulejb

Steve0T,

Odd that the biggest bigots on the planet are always accusing others of bigotry? Why do you suppose that is, Stevie?

Dorothy Banks
Dorothy Banks

Once again the media and pundits have been sucked in by someone with a pen and paper, who said she got an inside scoop, but cant reveal her sources. They "media" experts are repeating the "sourced" story on all the cable talk shows disguised as news.

This morning a blogger with the Daily Beast said he had a tape of President Obama "begging" donors for money because he is going to be outspent by the Romney camp. Asked about the call made on Air Force One, the grinning blogger said he could not reveal his source, but someone who works closely with the President varied the tape is authentic. I saw one White House reporter on Friday refuse to go with the Daily Beast hear-say.

If this were someone on Air Force One who leaked this call to this blogger, it was be simple to discover who he or she is, just like the Supreme Court leaker. I don't trust news stories in which "reliable sources" are quoted, because too many legitimate reporters have  gotten in trouble for making up quotes and facts, attributing them to "reliable sources" that don't exist.

jpo321
jpo321

Unfortunately, we're stuck with this betrayer.

vstillwell
vstillwell

Republicans are useless. They are he!! bent on taking this country back to the 1800s. I keep expecting some conservative group to claim that barbed wire fences are unconstitutional. 

Dr Sam
Dr Sam

FOOL-PROOF CLUES ON HOW TO SPOT A RIGHT WING EXTREMIST REPUBLICAN/TEA PARTY TYPE ON TV WITH YOUR EYES CLOSED.

He talks, and acts rudely, in all manner and way. Thus, he uses words

that make you suspect he wants to cause the most harm or cruelty.

Therefore, he endlessly puts venom into his verbiage and learned

expletives. He obviously wants to make you look small or irrelevant.

He, with finality and in superlative even apocalyptic terms, predicts

what would happen to you. He predicts a future he does not know or

understand, claiming as well expert knowledge even though he may be an

air head. (Would you hire Sarah Palin as your expert on constitutional

law?).

He is almost always angry and looking unapproachable. And

when he loses or you disagree with him, his anger turns to rage and

rave. He feels able to simultaneously dwell on insults while still proclaiming his Christian credentials and ideals.

He is wont, in political disagreements, to call for the most extreme

measures against his perceived “enemy.” Thus, he would glibly shout,

call for or threaten treason, un-American, impeachment, contempt,

secession, repeal, nullification or other destructive terms.

He interrupts others repeatedly even though no one interrupts him when he speaks.

He is very belligerent and threatening in all matters: on foreign

policy and nationalism (remember the word jingoism). This makes a

mockery of his avowed belief as a “Christian”—because Christ is the

“Prince of Peace.”.

He is almost always the aggressor. Win (think

2010) or lose (think 2008 and 2012), he wants to fight you, humiliate

you, threaten you. (You can never satisfy these people). He covers up

everything with shouts and claims of freedom while denying it to others.

He doesn’t think it matters to be specific and instead dwells on

generalities, bite sounds and unsupported assertions. He thinks that

most voters are stupid and can easily be manipulated with emotive words

of hates and division. (Remember “divide and conquer”). Thus, many of

the voters they manipulate end up working against their own interests—so

long as they find somebody else to blame for their own failures and

inadequacies.

He dearly believes in one man one dollar as the

cornerstone of democracy instead of one man one vote. He sincerely

believes that most voters are not fit to vote especially minorities,

young people and liberals.

He is very self-righteous on religious

matters, wants to impose his personal beliefs on the whole society even

while decrying government “overreach” in our personal lives. And he

spouts in frightening speed all kinds of conspiracy theories. (The

brains are different).

He projects his myths, conjectures and

conspiracy theories as “facts” and treats objective facts as irrelevant

and dangerous. He treats his routine lies, prevarications and

misrepresentations as a “business plan.”.

He shouts honor and

country and wants America to easily go to war against other nations even

though he usually finds a way to avoid military service. He feels he

is more “patriotic” than any one else while in fact he is a paper tiger.

He doesn’t really believe in democracy, human rights, civil rights and

human dignity (except for the unborn). So you will hear him describing

women’s rights, gay rights and civil rights as a threat to the economy

and the nation. He, like the Taliban, wants particularly to lord it

over women in any way he can, including using public policy to interfere

in the bedrooms of the nation.

He doesn’t believe in helping the

poor, the elderly and the weak in our society, even though Christ said

doing these things gives you a right to heaven. So he is wont to accuse

any one who dares as a socialist. He even denounces Canadian and

European-style capitalism as “socialism.” (Do these people read and use

their brain at all)?

He believes in winning by cunning,

intimidation and other unfair means, even if it means disenfranchising

thousands of legitimate voters. (Remember Florida 2000 and now 2012).

(Their big daddies in the Supreme Political Court will surely help out

as needed).

He doesn’t think that the court should be activist

except for the causes they believe in or in courts they control. When

they are in control, they want to take every matter of state to the

court expecting for decision in their favor. Note the flood of

Republican-pioneered cases to the John Robert’s Supreme Political Court.

Roberts and Co. have usually obliged, seriously tarnishing the

reputation of the Court. However, Roberts disappointed them in the ACA

challenge (I suspect, to save the sullied reputation of the Court). So

they are threatening, huffing and puffing—as usual! Paper Tigers

barking!

Dr. Sam