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Monday, July 09, 2012

What's the Deal With All the Leaks?

Both Orin and Jonathan Adler have put up a number of valuable posts in the wake of the ACA decision. (Others on the VC blog have also posted a lot on that case recently.) Alas, Orin's new post is about more Leakapalooza, picking up on a new Jan Crawford story. Orin's post is good, although I regret that continued posts are being made possible by apparent continued leaks.

As I wrote in an earlier post, I trust Crawford's work, which (unlike some others) seems professionally done. Notwithstanding two of the VC posters, it is not safe to assume that Crawford's stories tell us what Roberts was actually thinking or why he acted as he did; Crawford is always quite careful to make clear that she is conveying what her sources told her, not what Roberts himself said. (A couple of commenters at that site appear to take the view that a journalist would not print such statements unless she agreed with the truth-claims made by those sources. That is incorrect, of course.) And notwithstanding at least one of the VC posters, it is not correct to say on the basis of these stories that "The fact that this decision was apparently political, rather than legal, completely undermines its legitimacy as a precedent." Strictly speaking, the stories are better windows into the views of the leakers, whoever they may be, than of Roberts himself, so such a statement, even if prefaced by words like "if true," would be presumptuous. In any event, it would take a wholly unrealistic worldview to draw a firm distinction between "political" and "legal" decisions by the Supreme Court, to assume that this decision is unique in that regard, or to construct some new rule of precedential effect that takes news stories into account. 

But we should still be disturbed by the leaks, obviously. Much of the outrage has been about what these leaks do to the Court as an institution. I am beginning to be just as concerned that these leaks, from whatever source, are aimed at the November elections. Granted that most people quite sensibly are not that interested in Supreme Court inside baseball, and will barely remember July's stories in November. But leakers may dream--and what these leakers may be dreaming of is that these stories will help reinforce the views of the base, if not the general electorate, that a new President is needed to straighten out a "wobbly" and/or illegimitate Court. It's bad enough when lawyers (if these leakers are lawyers) think they know much about politics; certainly an apparent privileged position on the Court should not be a base from which to engage clumsily in politics, institutional or electoral. (Granted that this has not stopped members of the Court, including liberal Justices, before. And, of course, non-insiders are free to make such arguments about the election and the Court.)  

One addendum. A number of commenters on the VC site have insisted, based on speculation (has there been any other kind of basis for all this discussion?), that Randy Barnett may or must have known of a leak before the Court's decision and have been pressing him to say something about this. I think this is unhelpful. Repeating this allegation many times, and then taking his silence as indicative of something, simply sets up a poor dynamic in which one's charges seem to grow in credibility because the target refuses to address them, even though no underlying facts have changed. They attempt to set up a presumption of bad faith on the part of the accused. I prefer to assume Randy is operating in good faith on this matter. For one thing, he is a member of the Supreme Court bar and would likely have an ethical duty to report the link and its source(s) if he had one. For another, as I say, the underlying charge, no matter how often it is repeated, is based on conjecture.

What I would welcome from Randy, on the other hand, is a clarification. During the litigation, he seemed fairly adamant to me in pressing the point that it was irresponsible to assume that his arguments were aimed at anything other than this law and the immediate relevant precedents, which in any event he argued required overturning the law. But now that the main decision has been handed down, I would love to see an itemized list from Randy discussing (1) the major federal laws he thinks are unconstitutional and (2) the major Supreme Court precedents he thinks are "illegitimate" or that ought to be struck down. Legal academics are not always so shy on this point. I know Randy has written a book or two on this subject and one could start there, but I would really appreciate an updated list, so that I (and the Court) can be sure of his long game the next time he is litigating a case, and to avoid any unfair accusations about the implications of some argument he is making the next time he pursues a case to the Supreme Court.    


Posted by Paul Horwitz on July 9, 2012 at 08:13 AM in Paul Horwitz | Permalink

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The comments you reference at times explain why they hypothesize & more than one say it is only a theory & ask for clarification.

One reason why it doesn't seem unfair is that Prof. Barnett went out of his way, in multiple posts, pre-decision to imply that certain people on the left were trying to coerce Roberts and in (to them) an alligator tears sort of way feared this would weaken the legitimacy of upholding the law. The whole enterprise was to me a bit distasteful. Conjecture ("conjecture"?) for the goose, conjecture for the gander?

I do not have as strong opinions as some (though I respect one or more of the people who strongly ask) but yes, the allegations of "bad faith" are not without merit while it might be weaker in another context. As to him being a member of the bar, with respect, Prof. Barnett seems to have a good ability to convince himself of the legitimacy of a position that comes off as weak. This is so even if we fully give him the benefit of the doubt as to good faith.

Also, the leaker or leakers also had an obligation & they broke it.

Posted by: Joe | Jul 9, 2012 10:31:07 AM

I find it hard to believe that anyone who wasn't already committed to voting against Obama is going to vote against Obama because these (alleged?) leaks made them believe that "a new President is needed to straighten out a 'wobbly' and/or illegimitate Court." I'm not even convinced that the actual outcome of the case is going to shift any significant number of votes, much less the intriguing-to-us but still very insider-baseball sort of issue of Supreme Court "leaks."

Posted by: Joseph Slater | Jul 9, 2012 1:57:12 PM

One thing lost in the discussion of the potential disloyalty of leaking clerks is the question of who clerks owe their loyalty to. Chief Justices Burger and Rehnquist emphasized to the clerks that they worked for the Court and not for an individual
Justice. While this is true in a legal (and probably ethical) sense, it does not feel that way, particularly while one is still clerking. If the leakers are conservative clerks, they may be doing so at the behest of their Justices, with the permission of their justices, or in the belief that they are serving their Justices. If any of that is true, they may feel like their leaking is an act of loyalty, not disloyalty.

Posted by: Former Clerk | Jul 9, 2012 2:47:18 PM

I'm sure Randy Barnett will provide you with the explanation that you're unquestionably owed.

Posted by: Former AE | Jul 9, 2012 3:27:51 PM

Former Clerk, I take the point. In my view, personal loyalty is a questionable virtue. Clerks owe duties of confidentiality to their judge and court, to be sure, and gratitude too, but I think too many former clerks are too loyal to their judges for too long. But that's just my view. My model is still Posner's HLR obit for Brennan.

Posted by: Paul Horwitz | Jul 9, 2012 3:33:19 PM

"I would love to see an itemized list from Randy discussing (1) the major federal laws he thinks are unconstitutional and (2) the major Supreme Court precedents he thinks are "illegitimate" or that ought to be struck down." Do you think ACLU lawyers should provide such a list every time that argue a major Supreme Court case? Lawyers for, e.g., Guantanomo prisoners? Left-wing lawyers representing death penalty appellants? This is an extremely distasteful suggestion, reminiscent, as I blogged last June, of those who when faced with civil rights lawsuits before 1964 insisted that we must investigate the ideology of the attorneys (often leftists and sometimes honest-to-goodness Communists) rather than the merits of the lawsuits in question.

Posted by: David Bernstein | Jul 9, 2012 5:44:52 PM

Oops, it was back in May, and here's the link: http://www.volokh.com/2012/05/23/60301/

Posted by: David Bernstein | Jul 9, 2012 5:49:07 PM

Prof. Bernstein might want to actually address the context of the query, that is, in response to Barnett insisting in effect he didn't have a long game. The ACLU doesn't deny it promotes a certain overall cause. But, yes, it is so vary shameful. Barnett can talk about how the "screws" were put to Roberts all he wants, but the shame of it all when Prof. Horwitz raises such a question in this context.

Posted by: Joe | Jul 9, 2012 6:02:30 PM

Barnett never claimed not to have a long game. Rather, he claimed that the validity of the commerce clause challenge was independent of the long game, and indeed didn't require the Supreme Court to reconsider any of its precedents. And, near as I can tell, five Justices agreed with the Commerce Clause challenge, and none of them found it necessary to reconsider precedent in the two relevant opinions to do so.

Posted by: David Bernstein | Jul 9, 2012 8:42:20 PM

The OP said:

"During the litigation, he seemed fairly adamant to me in pressing the point that it was irresponsible to assume that his arguments were aimed at anything other than this law and the immediate relevant precedents, which in any event he argued required overturning the law. But now that the main decision has been handed down, I would love to see an itemized list from Randy discussing ... "

Is the OP wrong? Did Prof. Barnett not say it "was irresponsible to assume that his arguments were aimed at anything other than this law"? If he never claimed not to have a long game, I'm unsure why you found is so distasteful for the OP to in effect ask for details.

The part about not needing to overturn precedents is a non sequitur to the context of the question, which again your "extremely distasteful" reply seems to skip over.

Posted by: Joe | Jul 9, 2012 9:42:35 PM

Did you absorb my previous comment: "Barnett never claimed not to have a long game. Rather, he claimed that the validity of the commerce clause challenge was independent of the long game, and indeed didn't require the Supreme Court to reconsider any of its precedents."

Litigants litigate to win the case before them. If they are "cause" litigants, they also hope they or others win other cases that will go beyond what they are asking for in the particular case. I'm sure many gay rights advocates hoped that Lawrence v. Texas would make it easier to later win a right to gay marriage. That has nothing to do with whether their arguments were meritorious or not, and I can't imagine Paul insisting that Evan Wolfson enumerate after Lawrence all of the federal, state, and local laws he thinks are unconstitutional to somehow "avoid unfair accusations about the implications of some argument he is making the next time he pursues a case to the Supreme Court." I think Paul typically makes interesting and insightful comments, but this isn't one of them.

Posted by: David Bernstein | Jul 9, 2012 10:15:03 PM

The next book is "Rehabilitating Barnett"? But then there's Raich in the weeds.

Posted by: Shag from Brookline | Jul 9, 2012 11:13:53 PM

"(1) the major federal laws he thinks are unconstitutional and (2) the major Supreme Court precedents he thinks are "illegitimate" or that ought to be struck down."

He definitely doesn't like Wickard, and he's not all that happy about Raich using a dictionary definition from 1966 for "commerce."

Source: his Con Law 1 class where he repeatedly beat us over the head with both of those things

Posted by: Doctor Chim Richalds | Jul 10, 2012 12:11:04 AM

I appreciate David's comment and the link to his earlier post. Having read it, I will add that his underlying argument is wholly inapplicable to my post, that his analogy is also inapplicable and somewhat overwrought, and that I do not find my request distasteful, let alone "extremely distasteful."

Posted by: Paul Horwitz | Jul 10, 2012 8:34:43 AM

I "absorbed" what you wrote though I don't know if you "absorbed" what Prof. Horwitz wrote and second his 8:34 comment, minus perhaps the first sentence.

Posted by: Joe | Jul 10, 2012 8:40:21 AM

Paul, I don't get the purpose of your request for an itemized list. It seems to just be making busy-work for Randy. What difference does it make either in the ACA case or the next case that comes along whether he has a "long game" or not?

Posted by: Bruce Boyden | Jul 10, 2012 11:20:01 AM

Paul, I'd still like to see an explanation why Randy, as opposed to every other litigant who has ever been involved in Supreme Court lawyering, including "cause" or "ideological" lawyers, should be expected to enumerate what other laws he thinks should be struck down, and what precedents he thinks are wrong. Or if it's not just Randy, I'd like to know what criteria you use for deciding should be expected to do these things.

Posted by: David Bernstein | Jul 10, 2012 2:41:15 PM

David: Again, thanks for the comment. In answer to your question, I'm not sure "I would welcome a clarification" is much of a statement of expectation, for him or any other cause lawyers. Of course, many cause lawyers and their organizations are quite explicit about their views and aims, so when I want to satisfy my curiosity about them it's no great stretch. Of course, they may not issue press releases in the middle of litigation saying, "Here's what we're hoping to achieve by building on this case," but then, as I said in my post, I'm asking now, not last month. And Randy is or was, of course, first and foremost a legal scholar; I don't find it extraordinary to be curious about his larger view, especially given his dual role. I might add again that even if I am somehow "wrong," or whatever the word ought to be here, to be curious about it and to think that the broader context of his constitutional vision is relevant to understanding better the nature and scope of his claims in particular instances, this still strikes me as a far cry from "extremely distasteful."

Posted by: Paul Horwitz | Jul 10, 2012 3:28:37 PM

David: Again, thanks for the comment. In answer to your question, I'm not sure "I would welcome a clarification" is much of a statement of expectation, for him or any other cause lawyers. Of course, many cause lawyers and their organizations are quite explicit about their views and aims, so when I want to satisfy my curiosity about them it's no great stretch. Of course, they may not issue press releases in the middle of litigation saying, "Here's what we're hoping to achieve by building on this case," but then, as I said in my post, I'm asking now, not last month. And Randy is or was, of course, first and foremost a legal scholar; I don't find it extraordinary to be curious about his larger view, especially given his dual role. I might add again that even if I am somehow "wrong," or whatever the word ought to be here, to be curious about it and to think that the broader context of his constitutional vision is relevant to understanding better the nature and scope of his claims in particular instances, this still strikes me as a far cry from "extremely distasteful."

Posted by: Paul Horwitz | Jul 10, 2012 3:29:04 PM

Pardon the double post. That said, I should add one thing. Although I said "and the Court," I should not have; the Court has its own means in individual cases of asking about the implications and limiting principle of arguments pressed in particular cases that should not depend on the advocate.

Posted by: Paul Horwitz | Jul 10, 2012 3:37:05 PM

Paul, that makes sense, and if you had written, "I'm genuinely curious from an academic perspective as to what Randy would have the Supreme Court do if he had his druthers," I wouldn't be complaining. Instead, you wrote that you'd like to know "so that I (and the Court) can be sure of his long game the next time he is litigating a case, and to avoid any unfair accusations about the implications of some argument he is making the next time he pursues a case to the Supreme Court," as if we should judge litigants argument's in a given case by the ideology of those pressing the arguments. And I don't think Randy has been coy about any of this, arguing that his argument in NFIB didn't require the Supreme Court to overturn any of its precedents, while acknowledging that he thinks that many of those precedents are incorrect. Let's say the Supreme Court was aware that Randy would like to see Wickard v. Filburn and U.S. v. Darby overturned. Why would that have any effect, e.g., on the outcome of NFIB, Raich, or some future case in which no one is arguing that Wickard and Darby should be overturned?

Posted by: David Bernstein | Jul 10, 2012 4:21:45 PM

Following CJ Roberts' ACA opinion delivered on the last day of a contentious Court term and especially a contentious final week, he had the good sense to leave for some "R & R," while the rest of us have to suffer through a variety of "R & R," especially with Barnett's "Restoring" and Bernstein's "Rehabilitating." It is time for a third "R": Jack Balkin's "Constitutional 'Redemption'" - let's have a little "Faith" in the future.

Posted by: Shag from Brookline | Jul 11, 2012 4:40:32 PM

I suppose I am one of the "VC commentators" that Professor Horwitz has referred to as insisting that Professor Barnett answer simple questions about the leaks-- in short, did he receive any on or about May 23, 2012, when he, and several conservative columnists suspiciously all posted columns/blog posts warning that the Chief Justice was going "wobbly".

Given that Professor Barnett has almost daily questioned the good faith, integrity, and reputation of the Chief Justice on VC, expecting Barnett to clear the air about his own "good faith"-- by answering these very basic questions-- doesn't seem to be all that much.

In fact, look how simple it is! Lind Greenhouse, in the NYTimes Blog, in a simple line clears up any question about her own writing around that time: "But I’m amazed by the leaks (to be clear, I had none) and by the invective that continues to be heaped on the chief justice."

Source: http://opinionator.blogs.nytimes.com/2012/07/11/the-mystery-of-john-roberts/

Posted by: c0unterfactual | Jul 12, 2012 2:25:03 PM

Gee, counterfactual, you don't think it could have had anything to do with an editorial published in the Wall St. Journal on May 21? http://online.wsj.com/article/SB10001424052702303610504577416710604278438.html?mod=WSJ_Opinion_LEADTop

Posted by: David Bernstein | Jul 12, 2012 7:05:40 PM

Professor Bernstein: Oh, you mean the now ironic May 21st WSJ editorial admonishing "the left" for politicizing and de-legitimizing the Chief Justice's forthcoming decision, the very thing conservatives (including the WSJ) have done since he upheld it? Yes, I know that one.

Impossible, because Professor Barnett was already accusing "progressives" of "rearguard... tactics" attempting to "intimidate" Roberts on VC, as of May 20th (http://www.volokh.com/2012/05/20/judicial-minimalism-and-the-individual-mandate/).

Let's speak plainly: it's now quite obvious that one or more conservatives received one or more leak(s) on or about the week of May 21st. The notion that the Chief Justice was going "wobbly" (that term in particular) was used by Ramesh Ponnuru in a talk in early June (https://twitter.com/bartongellman/status/208939148332122112).

"Wobbly" also appeared in other op-eds/stories at the time (http://articles.latimes.com/2012/may/23/news/la-ol-roberts-supreme-health-20120523) and it ultimately showed up in Jane Crawford's post-decision leak story, which quoted an anonymous Justice as describing how Roberts had gone "wobbly" after the conference vote. That same week, there was an unusual number of conservative op-eds and blog posts all specifically targeting the Chief Justice- Kathleen Parker, George Will, Mike Rappaport, WSJ Editorial Board, Ed Whalen, Randy Barnett, Jennifer Rubin, the WaPo Editorial Board, etc.

So, who among these, other than Ramesh Ponnuru, received leaks? The whole thing stinks to high heaven, as my mother used to say.

Personally, I respect Professor Barnett and don't believe he knowingly engaged in anything untoward (though I am shocked at his, in use your words "extremely distasteful" willingness to attack the Chief Justice's integrity willy nilly). That said, he may have knowledge, indirect or direct, that others had received leaks, and were engaged in a coordinated effort to pressure the Chief Justice.

Posted by: c0unterfactual | Jul 13, 2012 8:57:46 AM

One clarification: Ponnuru cited "sources" at the "Supreme Court" in using the term "wobbly" to describe the Chief Justice on June 2.

Posted by: c0unterfactual | Jul 13, 2012 9:17:41 AM

Advantage: counterfactual (who obviously does not need rehabilitating), in his "acing" of DB.

Posted by: Shag from Brookline | Jul 13, 2012 9:55:10 AM

c0unterfactual does a good job here, but with respect, Professor Barnett's actions here do not warrant it. A lot of patting him on the back for moving the constitutional conversation in Balkin-esque ways which is okay. I get that though I wonder if we are supposed to be consistent about patting on the back reasoning that some of the people doing the patting on the back repeatedly showed to be flawed. I digress. But, when he goes and on about how unprincipled Roberts is being etc., saying patently untrue and/or unsubstantiated things, respect is lost.

Posted by: Joe | Jul 13, 2012 10:50:29 AM

"don't believe he knowingly engaged in anything untoward"

This can be true but the implications from the questions raised are that it is quite possible he did, though that's different from he himself realizing it. His treatment of Roberts at any rate IS "untoward" and not a tasteful way a respectful advocate (who after all won something here) should act. Watch out for bad luck.

Posted by: Joe | Jul 13, 2012 10:53:07 AM

You're moving the ball. You originally wrote: "in short, did he receive any on or about May 23, 2012, when he, and several conservative columnists suspiciously all posted columns/blog posts warning that the Chief Justice was going 'wobbly'."

As noted, there was a WSJ editorial on the subject two days earlier.

Posted by: David Bernstein | Jul 14, 2012 5:07:27 PM

That should read "moving the goalposts."

Posted by: David Bernstein | Jul 14, 2012 7:34:55 PM

I'm not moving the goalposts; rather, you're ignoring the game.

Let's set aside little word games. The central point, is what I outlined: the obvious evidence of leaks to conservatives, and the question as to who, among that wide range of commentators, received them. What did Barnett and the rest know, and when did they know it?

Posted by: c0unterfactual | Jul 17, 2012 10:08:46 AM

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