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Supreme Court Code of Silence: Who Leaked that Roberts Flipped?

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By Andrew Lu on July 12, 2012 6:04 AM

A few weeks ago, Supreme Court Chief Justice John Roberts made a stunning turn and joined the four liberal members of the Court in upholding Obamacare.

Now CBS reporter Jan Crawford is reporting that Roberts made a last second turnaround. According to a source for Salon's Paul Campos, not only was Roberts prepared to vote with his conservative colleagues, but that he in fact penned both the majority opinion and the dissent.

What makes these leaks about Roberts' indecision so interesting is that Supreme Court leaks are usually rare. Typically, no one but the justices themselves and their clerks have any idea what goes on before the decision. And they tend to be very close-lipped about the mechanizations.

So how did the John Roberts' indecision leak?

Neither Crawford nor Campos are talking about who their sources are, but there the theories abound.

First, many suspect that the Supreme Court leak came from one of the conservative justices. Perhaps feeling abandoned by their chief, Justice Clarence Thomas or Justice Antonin Scalia may have publicized Roberts' waffling. This rumor is only fueled by Crawford's close relationship with the conservative justices, reports The Atlantic.

More nefariously, Justice Anthony Kennedy may have felt this to be the ripe opportunity to rid himself of the turncoat label -- by casting John Roberts as the traitor -- reports The Atlantic.

However, as these justices have to work with each other on many more critical decisions, it seems unlikely that they would leak the information. Perhaps more likely is that one of the clerks was the leak. On the one hand, clerks are young, and young people make stupid decisions. On the other hand, these clerks are extremely smart and would be committing career suicide if it was revealed they were the leak.

So who was the Supreme Court leak? Who knows, but it's sure fun to speculate.

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