Trust Marcy Wheeler, Here — “emptywheel.net”


This — barring some shockingly different development — will likely be my last post on the topic of the behind-the-scenes “how, and why” the Supremes came to the truly landmark ACA holding they announced just last Thursday, now.

I really don’t care (very much) whether anyone “switched” their vote — afterall, that is what ought to happen (albeit in absolute internal secrecy), as various Justices read the draft opinions of their colleagues, and become more — or less — convinced of the correctness of their own (or the colleagues’) analyses of the presented questions.

What would be damaging (in perhaps a very long-lasting way) to the Court as an institution — and far beyond the pale of ordinary good manners, comity and decorum (to say nothing of the canons of judicial ethics) — would be if these are conservative Justices, themselves purportedly leaking information about a decision they do not agree with — even after the fact. Clerks with loose lips are one thing — but Justices, another entirely. So — for the future of our republic, I genuinely hope that is not what is going on here.

Having said all of that, I commend this piece — written by Marcy Wheeler — to all here assembled. I’ve followed her for years. She is among the very best of sleuths — in these sorts of matters — I’ve ever encountered. I trust what she writes — without checking — because she always does her “weedy-details” homework, before writing anything.

So do go read hers, here — but enjoy just this bit. Her headline is “Conservatives In Anonymous Disarray” — that much is certainly true. I do worry that the first Monday in October will be extremely chilly, inside chambers, this fall. Here’s the bit:

. . . .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. . . .

Last — but certainly not least — Lyle Denniston (who has covered the Supremes for almost 56 years, now!) has a great — and worrying — perspective on it all, over at SCOTUSblog.com. Do go read his, as well — but his chilling takeaway is that “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. . . .”

Sadly, I couldn’t agree more.

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