“Supreme Conflict”: Was Justice Clarence Thomas Behind The Obamacare Leaks?
The biggest revelation in CBS News reporter Jan Crawford’s piece on the Supreme Court’s health care deliberations isn’t that Chief Justice John Roberts originally voted to strike down the Affordable Care Act and then changed his mind — Crawford merely confirmed what many people already expected based on evidence in the opinions themselves. Rather, the biggest revelation is that fact that, in order for her piece to exist at all, someone inside the Court must have leaked confidential informationto her.
Yesterday, the New York Times‘ Adam Liptak strongly implied that the leak could be Justice Clarence Thomas:
[T]he possibility that conservatives had victory within reach only to lose it seemed to infuriate some of them. 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.
Thomas’ affection for Crawford is mutual, and Crawford has spent years defending Thomas against his critics. At times, these defenses have been thoughtful and compelling, such as when she shot down the ridiculous idea that Thomas is merely a lapdog for his less conservative colleague Justice Antonin Scalia, or when she defended Thomas’ wife’s Ginni’s right to have her own career regardless of what her husband does for a living. At other times, they have been much less thoughtful, such as when Crawford accused Senate Majority Leader Harry Reid (D-NV) of racism for criticizing Thomas. Crawford has also conducted high-profile interviews of Thomas in the past.
None of this, of course, proves conclusively that Thomas is one of Crawford’s two sources. But it does demonstrate that the two of them have a strong working relationship based on mutual admiration for each other. If Thomas were looking to leak confidential information to a member of the Supreme Court press, it is likely that he would choose the one reporter he has publicly revealed to be his favorite. The fact that that reporter is a well-regarded conservative journalist who also works for a high profile outlet is gravy.
If Thomas is the leak, that would be a shocking escalation from the justices normal tactics — and one which could have lasting consequences for the future. Appellate courts function because of the assumption that their members can openly discuss their thoughts and misgivings about individual cases without fear that those discussions will later be used to embarrass them. If that assumption no longer prevails in Supreme Court conferences, the Court will morph into a far less deliberative, more factional institution.
Yet Thomas has shown no indication in the past that he cares about the sanctity of institutions or the consequences of his actions. Thomas continually finds himself embroiled in ethics scandals, including a high-profile gifting scandal similar to the one that forced Justice Abe Fortas to resign from the bench in 1969. Thomas’ jurisprudence is equally reckless, as he would declare everything from national child labor laws to the federal ban on whites-only lunch counters unconstitutional.
If Thomas did leak the Court’s deliberations, that still leaves open who the second leaker is (Noam Scheiber makes a strong case that the second leak could be Justice Kennedy). At the moment, however, we know that Thomas is the justice who is most likely to cast long-established practices aside due to a personal crusade. And we know that he already has a good relationship with the reporter who received the Supreme leak.
BY: Ian Millhiser, Think Progress, July 3, 2012
“Escalation Of Tactics”: Supreme Court Leaks To Conservative Pundits May Have Started More Than A Month Ago
CBS News’ Jan Crawford confirms widespread rumors that Chief Justice John Roberts initially voted to strike down the Affordable Care Act’s individual mandate, but decided midway through the opinion drafting process that he could not support this constitutionally unjustifiable result. In what may be the biggest revelation of her piece, Crawford also reports that pseudo-moderateJustice Anthony Kennedy led the internal lobbying effort to bring Roberts back into the right-wing fold:
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. 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.”
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.
Crawford cites two unnamed sources, and there are a very limited universe of people who could have revealed this information to her. Only the justices and their personal staff would have access to this knowledge, and it is highly unlikely that a clerk or secretary would be willing to risk their entire career by revealing the Court’s confidential deliberations to the press. Crawford, moreover, is a very well connected conservative reporter who has, at times, worked closely with the Federalist Society to drive conservative legal narratives. Nothing is certain, but it is likely that one or both of Crawford’s sources is a conservative justice.
Moreover, as Linda Greenhouse points out, it is possible that the Court started springing leaks more than a month before Roberts handed down his opinion:
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.
To be clear, at this point only two facts are confirmed: 1) According to Crawford, Roberts flipped his vote midstream; and 2) someone within the Court must have leaked her this information. It is perfectly appropriate for Justice Kennedy, or any other justice, for that matter, to internally lobby Roberts to try to obtain his vote in an important case. If a member of the Court has turned to conservative columnists like Will or reporters like Crawford in order to pressure and then embarrass Roberts, however, that would be a significant and unusual escalation from the justices’ regular tactics.
By: Ian Millhiser, Think Progress, July 1, 2012
“A Blatant Political Actor”: Justice Scalia Must Resign
Justice Antonin Scalia needs to resign from the Supreme Court.
He’d have a lot of things to do. He’s a fine public speaker and teacher. He’d be a heck of a columnist and blogger. But he really seems to aspire to being a politician — and that’s the problem.
So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase. But what he did this week, when the court announced its decision on the Arizona immigration law, should be the end of the line.
Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning President Obama’s decision to allow some immigrants who were brought to the United States illegally as children to stay. Obama’s move had nothing to do with the case in question. Scalia just wanted you to know where he stood.
“After this case was argued and while it was under consideration, the secretary of homeland security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants,” Scalia said. “The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.”
What boggles the mind is that Scalia thought it proper to jump into this political argument. And when he went on to a broader denunciation of federal policies, he sounded just like an Arizona Senate candidate.
“Arizona bears the brunt of the country’s illegal immigration problem,” the politician-justice proclaimed. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are simply unwilling to do so.
“Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it.” Cue the tea party rally applause.
As it happens, Obama has stepped up immigration enforcement. But if the 76-year-old justice wants to dispute this, he is perfectly free as a citizen to join the political fray and take on the president. But he cannot be a blatantly political actor and a justice at the same time.
Unaccountable power can lead to arrogance. That’s why justices typically feel bound by rules and conventions that Scalia seems to take joy in ignoring. Recall a 2004 incident. Three weeks after the Supreme Court announced it would hear a case over whether the White House needed to turn over documents from an energy task force that Dick Cheney had headed, Scalia went off on Air Force Two for a duck-hunting trip with the vice president.
Scalia scoffed at the idea that he should recuse himself. “My recusal is required if . . . my ‘impartiality might reasonably be questioned,’ ” he wrote in a 21-page memo. Well, yes. But there was no cause for worry, Scalia explained, since he never hunted with Cheney “in the same blind or had other opportunity for private conversation.”
Don’t you feel better? And can you just imagine what the right wing would have said if Vice President Biden had a case before the court and went duck hunting with Justice Elena Kagan?
Then there was the speech Scalia gave at Switzerland’s University of Fribourg a few weeks before the court was to hear a case involving the rights of Guantanamo detainees.
“I am astounded at the world reaction to Guantanamo,” he declared in response to a question. “We are in a war. We are capturing these people on the battlefield. We never gave a trial in civil courts to people captured in a war. War is war and it has never been the case that when you capture a combatant, you have to give them a jury trial in your civil courts. It’s a crazy idea to me.”
It was a fine speech for a campaign gathering, the appropriate venue for a man so eager to brand the things he disagrees with as crazy or mind-boggling. Scalia should free himself to pursue his true vocation. We can then use his resignation as an occasion for a searching debate over just how political this Supreme Court has become.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, June 27, 2012
“Keeping The Faith”: Why The Supreme Court Will Uphold The Constitutionality Of Obamacare
Predictions are always hazardous when it comes to the economy, the weather, and the Supreme Court. I won’t get near the first two right now, but I’ll hazard a guess on what the Court is likely to decide tomorrow: It will uphold the constitutionality of the Affordable Care Act (Obamacare) by a vote of 6 to 3.
Three reasons for my confidence:
First, Chief Justice John Roberts is — or should be — concerned about the steadily-declining standing of the Court in the public’s mind, along with the growing perception that the justices decide according to partisan politics rather than according to legal principle. The 5-4 decision in Citizen’s United, for example, looked to all the world like a political rather than a legal outcome, with all five Republican appointees finding that restrictions on independent corporate expenditures violate the First Amendment, and all four Democratic appointees finding that such restrictions are reasonably necessary to avoid corruption or the appearance of corruption. Or consider the Court’s notorious decision in Bush v. Gore.
The Supreme Court can’t afford to lose public trust. It has no ability to impose its will on the other two branches of government: As Alexander Hamilton once noted, the Court has neither the purse (it can’t threaten to withhold funding from the other branches) or the sword (it can’t threaten police or military action). It has only the public’s trust in the Court’s own integrity and the logic of its decisions — both of which the public is now doubting, according to polls. As Chief Justice, Roberts has a particular responsibility to regain the public’s trust. Another 5-4 decision overturning a piece of legislation as important as Obamacare would further erode that trust.
It doesn’t matter that a significant portion of the public may not like Obamacare. The issue here is the role and institutional integrity of the Supreme Court, not the popularity of a particular piece of legislation. Indeed, what better way to show the Court’s impartiality than to affirm the constitutionality of legislation that may be unpopular but is within the authority of the other two branches to enact?
Second, Roberts can draw on a decision by a Republican-appointed and highly-respected conservative jurist, Judge Laurence Silberman, who found Obamacare to be constitutional when the issue came to the U.S. Court of Appeals for the D.C. Circuit. The judge’s logic was lucid and impeccable — so much so that Roberts will try to lure Justice Anthony Kennedy with it, to join Roberts and the four liberal justices, so that rather than another 5-4 split (this time on the side of the Democrats), the vote will be 6 to 3.
Third and finally, Roberts (and Kennedy) can find adequate Supreme Court precedent for the view that the Commerce Clause of the Constitution gives Congress and the President the power to regulate health care — given that heath-care coverage (or lack of coverage) in one state so obviously affects other states; that the market for health insurance is already national in many respects; and that other national laws governing insurance (Social Security and Medicare, for example) require virtually everyone to pay (in these cases, through mandatory contributions to the Social Security and Medicare trust funds).
Okay, so I’ve stuck my neck out. We’ll find out tomorrow how far.
By: Robert Reich, Robert Reich Blog, June 27, 2012
“Elected By Nobody”: Our Supreme Court Has Lost Its Honor
Once upon a time, in a place called America, there was a government with three equal branches. That America no longer exists.
One branch now rules American life.
It is the Supreme Court, and it consists of nine people elected by nobody. They rule for life. Their power is absolute.
To overrule them requires an amendment to the Constitution, a process so politically difficult, it is nigh on impossible. (The most recent amendment, the 27th, which deals with congressional salaries, took 203 years to ratify.)
Technically, the justices can be removed from office for high crimes and misdemeanors, but none ever has been.
There is no aspect of American life — from civil rights to sports, to guns, to religion, to sex — over which the justices have not exerted control.
There are no qualifications to serve on the Supreme Court.
Though the Constitution lists qualifications to become a president, a senator or a representative, none are listed for the high court. The justices need not be of a certain age or have been born in the United States or even be a citizen.
They do not have to be lawyers, though all have been. (Some, however, never went to law school.)
You could be a justice of the Supreme Court. I could. Justin Bieber, age 18 and a Canadian citizen, also could be, though Senate approval would not be likely.
The greatest power the justices have is carved into the marble of the Supreme Court Building and gilded in gold: “It is emphatically the province and duty of the Judicial Department to say what the law is.”
These are the words of John Marshall, the fourth U.S. chief justice, written in 1803. His decision established forever that the Supreme Court had the right to uphold or strike down laws passed by Congress.
Nowhere in the Constitution is the Supreme Court given this power. The Supreme Court took it in a 4-0 decision. (There were only six members on the court at the time and two were sick.)
The Supreme Court would, over its history, come up with some terrible decisions countenancing slavery, locking up Japanese-American citizens in camps, supporting “separate but equal” segregation and approving the forced sterilization of the mentally ill.
But these were anomalies. Overall, the court would help create a vibrant and free society where citizens could live under the rule of law, where nobody was above the law and where equal rights were promised to all.
For much of modern times, the court has been seen as being above politics. This was very important as a balance to its vast power. Even though justices were appointed by political presidents and approved by political senators, their own politics was to be suppressed.
We realized they were human beings with political opinions, but we expected them to put those opinions aside.
And then came 2000 and the court’s 5-4 decision that made George W. Bush the president of the United States. The decision was nakedly political. “The case didn’t just scar the Court’s record,” Jeffrey Toobin wrote in The New Yorker, “it damaged the Court’s honor.”
Its honor has never fully recovered. Our current court is led by Chief Justice John Roberts, who was appointed by Bush in 2005 after having worked on Bush’s behalf in Florida in 2000.
The signature of the Roberts Court, Toobin wrote, has been its eagerness to overturn the work of legislatures. This is hardly conservative doctrine but today, politics trumps even ideology. In Citizens United v. Federal Election Commission, the court “gutted the McCain-Feingold campaign-finance law” which amounted to “a boon for Republicans.”
“When the Obama health-care plan reaches the high court for review,” Toobin predicted 18 months ago, “one can expect a similar lack of humility from the purported conservatives.”
At this writing, I do not know how a majority of the justices will rule on Obama’s health care plan, which was passed into law by Congress. Two branches of government have spoken, but their speech is but a whisper compared with the shout of our high court.
The die was cast in 2000. And it would take the most dewy-eyed of optimists to expect the court’s decision to be anything other than political.
Justice John Paul Stevens, now retired, wrote in his dissent in Bush v. Gore in 2000: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
That is a lot to lose. But we have lost it. And getting it back may be a long time in coming.
By: Roger Simon, Politico, June 27, 2012
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