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.