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The “narrative” of judicial intrigue

NOTE TO READERS:  Ordinarily, this blog does not deal in “scoop” journalism, although we have been known to be first on some things.  We focus more on what the Court does than on whether the Justices have good manners or like each other, or on what they do in their free time.  Now and then, though, someone else’s “scoop” comes along, and seems to come from inside the Court — giving it apparent credibility — and appears to have the potential to affect the way the Justices actually work together.  This post is about such a story.



The Supreme Court Justices are scattering from Washington this week, perhaps in pursuit of a respite not only from a heat wave, but also from the rigors of a very difficult Term.   The atmosphere that set in after they closed the Term on Thursday instantly became rather rancorous.  And a contributing factor was a single news story.  As the Court’s summer recess unfolds, it may become clear whether this news story has staying power, or whether it will be forgotten by October.   If it is not forgotten, it may make life more difficult within the Court, perhaps for some time to come.   It might even bring a crisis of leadership for Chief Justice John G. Roberts, Jr.

The story appeared on CBS-TV, and on its website, last Sunday.   Reported by on-air correspondent Jan Crawford, the story was carried on the network’s web address under this headline: “Roberts switched views to uphold health care law.”  The story said it was based upon “two sources with specific knowledge of the deliberations” that led up to the health care decision.  It also referred to those sources as “knowledgeable.”   No doubt to disguise the identity of its actual sources, it said that word of Roberts’s “switch” was “known among law clerks, chambers’ aides and secretaries.”  But teasingly, it implied at one point that it had a quote from “one justice,” and talked about Roberts having “stirred the ire of the conservative justices.”   Someone inside the Court, the story appeared to be saying, had been talking.

It may have been the result of the enterprise of the reporter, the initiative of one or both of those “two sources,” or perhaps a combination.   (Reporters often follow a two-source rule, not wanting to go with only one, but the reader and listener can never be sure just how close to actual involvement a claimed source was.)  Someone “with specific knowledge of the deliberations” sounds quite authoritative but, without more, the story has to be taken partly on faith, even if one assumes the reporter had no personal agenda in the project.

The story (lengthy for TV, but not for a blog) had two themes: the first, of course, was about Roberts first having favored striking down the new law’s individual insurance mandate and then changing his mind.   Such switches are hardly unprecedented in Court deliberations, and that part of the story — although lacking in significant detail — tended to match what many journalists had been speculating about how the Court ruling would come out.  The uniqueness here, the story indicated, was that the speculation had been confirmed from inside sources.

The second theme was about that “ire” of the “conservative justices” and how they pressed Roberts to come back into their fold, and then shunned him when he did not do so.   The detail in the story was done almost completely from the perspective of those Justices (all of whom, assuming who they were, dissented), and not from Roberts’s vantage.  The Court’s more liberal members figure almost not at all in the story.

This was the more provocative, and controversial, theme of the Crawford story.  And it is the one that played into what might be called the “narrative” that had quickly developed after the decision was handed down Thursday morning.  That “narrative” is that Roberts was not faithful to his conservative principles, that he was scared off by liberal criticism of the Court as partisan, and that he ultimately folded, leaving the unpopular Affordable Care Act largely intact and handing President Obama an undeserved election-year bonus.  It is a “narrative” that paints Roberts in distinctively negative terms; one conservative member of Congress even spoke out about impeachment of the Chief Justice.

This is a political “narrative,” and it does differ — in tone, especially — from the scholarly “narrative” that arose after the ruling.  Georgetown law professor Randy Barnett, the academic guru of the law’s critics, phrased it in The Washington Post as if the conservatives had lost the battle but had won the constitutional war because of the way the Roberts opinion cut back on Congress’s power to pass legislation affecting the nation’s commercial life.   The scholarly response is respectful.  The political “narrative” has not been.

Washington (and, perhaps, much of the country) seems to operate almost predictably these days according to political “narratives.”  What they are, usually, consists of conventional wisdom that those in power and in the media who cover officials have concluded is likely to happen on an issue or a topic.   Often, it seems, such “narratives” become self-fulfilling.  In 2010, for example, the political writers almost to a person began early on to talk of a Republican sweep in that year’s elections, and the voters made it happen.  A continuing “narrative” about President Obama (aside from the one about his birthplace) is that he is an ineffective leader who is determined to take the country down the path toward socialism.

One “narrative” about the health care law began building up in Washington, and perhaps beyond, right after the Supreme Court held its hearings in late March.  The mandate, it was said, was going to be struck down, the government’s lawyer had blown it, and the President was going to be deeply wounded politically over the loss of his treasured domestic initiative.   It linked up with another currently prevailing “narrative”: that most of the country is stubbornly committed to the Tea Party wish to limit the power of the federal government, and will go to great lengths to shrink Washington.

Another part of the same “narrative” was that the Chief Justice and the President basically could not co-exist in the same capital, they were so completely at odds.  So Roberts was widely expected to be a vote against the health care mandate, and maybe against the entire Affordable Care Act.   When the ACA decision came out, according to the “narrative,” Roberts would be where he belonged: against it.

That may have contributed to the erroneous initial stories in some media, when the decision did emerge last week.   The first part of the summary of the decision, in fact, had Roberts voting to nullify the mandate under the Commerce Clause.  It was only when one read on that Roberts turned out to have voted to salvage the mandate under the Constitution’s Tax Clause — and turned out to have given Obama a significant victory.

How does the CBS story deal with that part of the switch?  It refers, without quoting anyone, to the tax argument as “strained” and as a “much more difficult legal proposition.”

As the story moves beyond that, it appears to be delving deeply — and with considerable detail — into the process by which the conservatives tried to persuade Roberts not to switch, how he tried in turn to persuade them, and then how, ultimately, the conservatives told the Chief Justice (in essence) that “You’re on your own.”

And then there is the discussion of the composition of the dissent.  Although that document contains many passages that make it seem that it had been drafted as the majority opinion (and, therefore, might have been written in part by Roberts, since almost all observers have always believed that  he would write the majority, either way), the story says that the Chief Justice had no part in that document.  It was the joint collaboration of the four Justices who ultimately dissented, according to the account.

The story also implies that the writing of that opinion came after Roberts’s purported switch.  But there is one telltale contradiction of that possibility.  On page 25, the dissenters say that, if the ruling in favor of the mandate were based upon the Tax Clause, that “would force us to confront a difficult constitutional question,” but it then added that “we have no need to address the point.”   The point is whether the tax was, in constitutional terms, a “Direct Tax.”  But, unaccountably from the language in the dissent, Roberts’s opinion does directly confront that difficult question, and decides that the penalty associated with the mandate is not a Direct Tax, but is a tax nonetheless.  That conflict makes the supposed sequencing of the dissent and the Roberts opinion somewhat doubtful.

There is a further difficulty on this point.  Again on page 25, the dissenters say that the Direct Tax issue is one that “deserves more thoughtful consideration” than it was given in the briefs by the government and its supporters.  It does not mention that Roberts dealt with it, but at the close of the dissent, a few paragraphs that seem to have been added late in the process do dispute Roberts on the Direct Tax issue, suggesting that it was decided “with inadequate deliberation.”

The CBS story, in two places, early and late,  introduces another development that amounts to further unpleasantness between Roberts and his dissenting colleagues.  The story near the top says: the dissenters “deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.”  Near the end, this development is described in almost the same terms.  This is the sentence: “The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.”

The story does not mention that, if what turned out to be the dissenting opinion was at some point the majority opinion, there would have been no occasion to comment on a Roberts-for-himself-alone opinion.   Nor does the story mention that, even if the dissenting opinion was crafted by the dissenters to serve only as a dissent, it is written in a straightforward, judge-like tone with very few of the typically harsh thrusts that Justice Antonin Scalia frequently puts into his dissents.  If the dissenting opinion was intended to ignore Roberts, it also seemed not to have been intended to convey “ire” towards him.

Whatever the facts about the drafting of the opinions, their sequencing, and their legal points, the fact that all of this internal deliberation has been shared with a news reporter by someone “with specific knowledge” is a departure from the Court’s norm of keeping such things to itself, and that alone can leave a trail of bitterness and recrimination.  When the famous book The Brethren came out in 1979, filled with revelations about internal deliberations, the Court’s internal dealings were affected for months, and the Justices even closed off some of their hallways and denied media access to them.  There also were long-running recriminations over who had been the source or sources.

But the prospect of lingering impact of the CBS story is not due only to the fact of the leaks.   The content itself is a public rebuke of Roberts, from inside the Court, and amounts to a direct challenge to his ability to lead the Court and to take steps — if that was what his position on the health care law was intended to do — to insulate the Court from the partisan polarization that so dominates the rest of Washington.

When the health care case was granted November 14, it set off unending speculation about how the coming decision — likely to emerge, it was said, in the midst of the presidential campaign — would affect the Court and its public reputation as an institution functioning apart from political Washington.   That speculation only intensified when newspaper columnists from left and right engaged in a sharp debate about whether the Court would itself give in to political pressure and itself becomes as polarized as is the rest of the capital city.

CBS’s story — undoubtedly a journalistic coup with its tell-all account of judicial dyspepsia — suggests that, as the Court moved toward a ruling on health care, it was far more than philosophically divided, and for at least a time was willing to nurse grudges.   Whether that will affect its behavior from here on is, so far, unknown, though likely.

Recommended Citation: Lyle Denniston, The “narrative” of judicial intrigue, SCOTUSblog (Jul. 3, 2012, 2:53 PM),