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The danger of Supreme Court deep throats

Posted: July 17, 2012 - 12:01am

Why aren’t Republicans in Congress demanding an investigation into the Supreme Court leakers?

After all, folks like Rep. Lamar Smith of San Antonio and Sen. John McCain of Arizona insist that leaking has serious ramifications. They and others have accused the White House of endangering national security by letting classified information seep out _ or, worse, divulging it to polish the president’s leadership creds for the election.

Aren’t the don’t-use-my-name snipes from court insiders about the Affordable Care Act ruling damaging, too?

They aren’t the magnitude of planting spies, using drones abroad, putting terrorists on a kill list or helping develop a computer virus targeting Iran. And, to be fair, some Democrats are complaining, too _ though Senate Intelligence Committee Chairwoman Dianne Feinstein of California has called for legislative action, not the special prosecutor Republicans want.

But the spectacle of blabbermouths inside disgruntled justices’ chambers pushing their preferred narrative of secret proceedings looks monumentally ironic coming from a place that won’t let TV cameras show public arguments for fear that people will get the wrong impression.

In the aftermath of the court’s June 28 decision upholding the health insurance law, most Americans probably have been wondering when the good parts kick in, whether they’ll end up taxed or what the whole business means for them.

Those who care about the court as an institution have been speculating about who’s been leaking and what it will mean for the justices’ ability to work together.

Jan Crawford of CBS News earlier this month reported based on two inside sources that Chief Justice John Roberts initially voted to strike down the Affordable Care Act then changed his mind, leading a 5-4 majority to uphold it. In this rendition, Roberts and dissenting Justice Anthony Kennedy tried mightily to pull each other over to their side, and the four furious “conservative” justices wound up writing a joint dissent.

Law professor Paul Campos from the University of Colorado at Boulder then wrote on salon.com that his source said Roberts wrote much of the dissenters’ opinion before changing his mind and writing the majority opinion.

Switching sides is not so unusual, even in a high-profile case. Harvard law professor Mark Tushnet has written about Kennedy’s change of heart while drafting the 1992 majority opinion in Lee v. Weisman.

Kennedy ultimately wrote that prayers at public high school graduations violate the First Amendment’s Establishment Clause.

What is unusual is that the justices’ discontent with each other has aired in real time, instead of long after their deaths when legal scholars extract juicy bits from their papers.

Historically, there’ve been periods of vitriol and venom beyond anything an angry Antonin Scalia or Clarence Thomas might muster. Harvard law professor Noah Feldman called his 2010 book about four famously feuding justices in the 1940s-50s Scorpions because the court has at times been described as “nine scorpions in a bottle.”

But inability to play nicely together is one thing _ inability to keep confidences quite another.

The court is far too insular. But almost everyone there manages to respect secrets essential to the work. Political import notwithstanding, the health insurance ruling’s contents weren’t leaked before the decision was formally announced according to court protocol.

It can’t be in the national interest for the court to start acting like the rest of the Washington spinorama, with its self-serving whisperers, trial balloon specialists and high-ranking officials who ask not to be named.

Do we really want CNN and Fox News getting things wrong days before a major ruling is released? By the time the actual opinion becomes public, TV talking heads and the Internet will have perpetuated misinformation, regardless of what the court says the law is.

Maybe the loose lips have belonged to clerks, not justices themselves. But I wonder if the leakers have considered this: What would be the point of lifetime appointments to insulate justices from the political winds if they’re going to act like the rest of D.C.’s deep throats?

Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram.

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