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Tuesday, July 03, 2012

Addendum: A Note on Sourcing

I really didn't want to add more on Leakapalooza. But, from a journalistic perspective, I did want to note one distinction between Jan Crawford's story and the others that have appeared so far. Crawford specified in her story that she had two sources, although, at least in the initial report, I don't recall her specifying that the sources were independent. Paul Campos's story today is limited to one source -- although, to his credit, he is quite clear about that and readers thus have some basis to read his story cautiously or not as they please. Neither of the National Review leak stories are very specific. They both use plural language (e.g., "my sources"), but not very specific language; indeed, so casual that, while I am inclined to take them at their word, I would be equally comfortable with the possibility that each of them had only one source.

I am not, of course, accusing anyone of dishonesty. Maybe flowerpots have been moved on and off of balconies all over DC since oral argument. But having a source only means that someone was willing to tell you something; it's no guarantee that the disclosure is true, or (more to the point) that it's the whole truth. As Dr. House used to say, "Everybody spins." That's why best practices in journalism for a long time have emphasized, especially where the story is controversial and the source is anonymous, the importance of finding multiple sources or other means of corroboration, and/or of cabining one's claims carefully. Which, to her credit, is what Crawford appears to have done, or tried to do, and why hers appears to me to be the most reliable and/or useful of the "leak" stories. (Again, although I think Campos's story falls short of best practices in that sense, he is creditably clear about its limitations, and it's still a damn good "get.") It is no surprise that Crawford is the only one of the bunch who is a serious full-time reporter.

Posted by Paul Horwitz on July 3, 2012 at 10:27 PM in Paul Horwitz | Permalink


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I think kudos are due all around; people are sleuthing this out responsibly and piecing together what it might mean. I don't think it means a whole lot, except that Roberts' decision was very very close and probably hinged on concerns about social or institutional consequences of various kinds. --We may yet learn, however, that the conservatives drove him into the opposite camp by being stubborn on severability, while Kagan and Breyer were willing to wheel and deal on spending doctrine. That would be interesting, albeit not for reasons relating to legal scholarship or, to be frank, law.

The dissenters' breaches of decorum in allowing the Crawford leak are rather shocking, and the counter-leak is not pretty either, but of course the story was going to come out within a few years anyway.

To your point:
It is not, I think, adequately appreciated here or elsewhere that Campos's story, though it is more thinly sourced, is supported by pretty compelling textual evidence from the opinions themselves.


Brad DeLong immediately saw how significant this was, and I follow DeLong in many things.

As you see, the dissenters quote from the Ginsberg opinion and explicitly treat its reply to Roberts as if it were addressed to them. This is either a truly bizarre Easter egg the dissenters left, or a revealing vestige of a moment in mid-May when drafts were circulating between a majority, then including Roberts, and Ginsburg, writing for the then-dissenters. Ginsberg fixed her reference but the dissenters (who also, pointedly, didn't soften their constant references to Ginsburg as a 'dissenter') never tidied up.

Campos deserves credit for (it seems) finding and seeing the significance of this textual crux, and my new pet theory is that his source of yesterday reached out to him because he would be receptive, having been the first one to notice it.

Allow me to reiterate that this Kremlinology isn't in itself important. What matters is that Roberts re-found the judicial restraint judges are always nattering on about, and that now we can have an election in which we decide whether to keep Obamacare or not. Because this is a democracy.


Posted by: Jim von der Heydt | Jul 3, 2012 11:22:00 PM

I have long thought it would be a good idea for reporters subject to obvious story shopping to, from time to time, leak the name of the leaker. Keep 'em honest.

Posted by: Brad | Jul 3, 2012 11:34:55 PM

The Crawford and Campos stories are entirely compatible with each other, assuming the initial vote was 5-4 to overturn at least something about the ACA. Most observers predicted CJ Roberts would write the opinion and he did, twice. Once before he switched sides and once after. While his switch seems likely, its timing is not clear.

It is hard to think the failure of the dissenters to join any part of Robert's opinion is unintentional. Why they did not follow normal practice, which would have resulted in a split decision that many commentators erroneously think happened with their prattle about the limitation on the commerce and spending clauses (for which there was only one vote -- Roberts), is not known. It is cutting off your nose to spite your face.

The helter skelter dissent suggests a number of possibilities from deciding to let the Chief Justice hang out to dry, to the noble decision to avoid a split decision, to lack of time to craft one that fit the case, to a lack of care or competence to craft a truly responsive dissent. There are other possible explanations. So take your pick or come up with your own.

Posted by: Mike Zimmer | Jul 4, 2012 12:28:48 AM

This part of Crawford's story is not consistent with Campos's:

"The two sources say suggestions that parts of the dissent were originally Roberts' actual majority decision for the court are inaccurate, and that the dissent was a true joint effort."

Posted by: Jim von der Heydt | Jul 4, 2012 5:04:54 AM

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