Executive summary: two days ago CBS News Chief Political and Legal Correspondent Jan Crawford authored an article that alleged that Supreme Court Chief Justice John Roberts ‘went wobbly’ on Thursday’s Supreme Court decision for reasons unrelated to his determination of the legal merits of the case. Ms. Crawford also alleged that there is ongoing fallout between Roberts and the four Justices that dissented with the 5-4 majority that held that Obamacare was legal as a tax; and she is at least insinuating that Roberts’ decision was based on calculation of how the decision would be received by the American Left and/or the Media (but I repeat myself). As you might imagine, this story has gotten a little play in conservative and Republican news sources, in much the same way that the Amazon river is somewhat damp.
Now, the above is a rather serious allegation about Chief Justice Roberts. And it is in fact an allegation that – if true – is very problematical. But what is also problematical is that the entire story rests on two uncorroborated, anonymous sources. Now, admittedly, Jan Crawford is a very well-respected, very knowledgeable, and very well-connected reporter on the Supreme Court. She is, in fact, more well-respected, more knowledgeable, and more well-connected than I am on this matter. But… her story is still based on two uncorroborated, anonymous sources; and in the forty-eight hours I have not in fact seen anything that would back up the allegations in her story. The closest to it that I have seen is John Fund’s article; John indicates that his anonymous sources are telling him that Roberts had been pretty much equivocal about tossing the entire law all along. Now that, if true, is a significant difference from Crawford’s lede “Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations. ” – and it doesn’t actually address any suggestion that Roberts changed his mind on non-judicial grounds.
Now it could very well be that Crawford is reporting what actually happened (I will confess, I had a much more inflammatory title and take planned on this entire situation, until I was given a salutary private attitude adjustment about it). But I’m not only uncomfortable about the fact that this entire interpretation on Roberts’ decision is based on somebody whispering from the shadows; I’m even more uncomfortable about the fact that 48 hours is easily enough time for more leaks and revelations to follow the first… and to the best of my knowledge they haven’t happened. If Orin Kerr is correct here in saying that Crawford’s sources reveal “the kinds of details that only the Justices and their clerks would likely know,” then we should be seeing people coming forward with more details. Because it’s been my experience doing this that, once the top people start talking, the folks on the lower rungs of the ladder feel freer to talk as well. And when I haven’t seen that in the past, it’s often been because there’s no actual story there in the first place.
Again, it could be that the story is true. But I do not think that it is unreasonable for me to think that allegations of this nature should have something more backing them than the simple say-so of somebody who I have never even met personally; and I say this fully aware of the fact that there are people who I have met (and respect) who disagree with me.
Moe Lane (crosspost)