U.S. Supreme Court

Speculation Abounds on Supreme Court Leakers; Three Justices Mentioned

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The intrigue builds as Supreme Court watchers speculate on the identity of the two inside sources who told CBS News that Chief Justice John G. Roberts Jr. switched sides in the health care case.

Speculation focuses on Supreme Court clerks and three conservative justices, the Atlantic Wire reports. Justices whose names are surfacing in the speculation are Clarence Thomas, Anthony M. Kennedy and Antonin Scalia.

Roberts upheld the law’s insurance mandate based on Congress’ taxing power, although he concluded lawmakers did not have the power to enact the law under the commerce clause. Four dissenters who would have struck down the mandate agreed with Roberts’ conclusion on the commerce clause, but they did not join that section of his opinion. The dissenters did so, according to Jan Crawford of CBS, because they were no longer willing to engage with Roberts in debate after he changed his mind.

University of Colorado law professor Paul Campos then weighed in at Salon with a story based on his own inside source who says Crawford is wrong about the dissent. Campos says most of the first three-quarters of the dissent was written mostly by Roberts’ chambers before he switched sides.

The Atlantic Wire breaks down and sources the speculation on these justices:

• Justice Clarence Thomas. Crawford has interviewed Thomas and he figured prominently in her book, Supreme Conflict, according to a tweet by Jason Zengerle of New York Magazine and GQ. Another journalist, contributing New York Times Magazine writer Andrew Rice, responds in a tweet with a reference to Thomas’ wife, Virginia. “It’s not like one [of] the justices has a wife with a political stake and a history of making ill-considered late night phone calls,” Rice says. “Could both sources ‘with specific knowledge’ be named Thomas?” he says in another tweet.

• Justice Anthony M. Kennedy. Crawford’s story cast Kennedy “as principled and intellectually formidable,” possibly a payback to a valuable source, according to The New Republic. “As for Kennedy’s motives, one gets the sense reading Crawford’s piece—which was clearly shaped by Kennedy’s ‘close associates,’ if not Kennedy himself—that he smelled an opportunity to redeem himself with conservatives and relinquish the turncoat title to John Roberts,” the story says.

• Justice Antonin Scalia. He has also given Crawford an interview.

Writing at the Volokh Conspiracy here and here, George Washington University law professor Orin Kerr believes the most likely culprits are clerks for the conservative justices. He also notes, however, that Crawford has good relationships with the conservative justices, including Thomas and Scalia. “If a justice was directly involved, it could be something that has significant negative consequences for the justices’ collegiality and working relationships going forward,” he writes.

Additional coverage:

Wall Street Journal Law Blog: SCOTUS Springs a Leak (or Several)

SCOTUSblog: “The ‘Narrative’ of Judicial Intrigue”

The Hill’s Healthwatch Blog: “Supreme Court healthcare ruling leaks have D.C. buzzing: Who is the culprit?”

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