That Didn’t Take Long: Supreme Court Leaks
Jan Crawford reported yesterday that two Supreme Court insiders “with specific knowledge of the deliberations” behind last week’s monumental healthcare decision have revealed that Chief Justice Roberts originally voted to strike down President Obama’s health care reform law but switched his vote sometime after the initial conference.
Before the health care decision came down, there was some chatter in the blogosphere asking why no one at the Court had leaked the outcome. In light of the recent series of high-profile national security leaks, it seemed unusual that the Supreme Court employees were apparently so discreet about the Court’s inner workings. Jack Goldsmith had a piece in The New Republic asking why there are rarely leaks from the Supreme Court about pending cases and offered some helpful comparisons between Supreme Court employees and national security employees. Ethan Lieb had a shorter post on PrawsBlawg asking the same question.
Well, the ink is hardly dry on the opinion, and leaks about what happened behind the scenes at the Court have already begun. My guess is that some disgruntled law clerks for Justices Kennedy, Thomas, Scalia, or Alito are the source, but I doubt we will never really know. Although the Court is very good at keeping secret the outcome of cases prior to their official announcement, it seems that all bets are off once the opinion comes down. No doubt most if not all of the Justices are disappointed that these leaks had occurred, but it is unlikely that the leakers will be identified or suffer any consequences. Unlike national security employees, clerks who leak do not have to worry about losing their security clearances or the threat of criminal prosecution under the Espionage Act.