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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, July 03, 2012 ::
    Who leaked?

    It's still only speculation, but Time Magazine blogger Adam Sorensen offers here some good reasons to think it was not clerks who leaked details of the Obamacare case (NFIB v. Sebelius) deliberations to reporter Jan Crawford, but could only have been one (perhaps more) of the Justices themselves. And since AMK's role as last-ditch defender of the unconstitutionality of Obamacare, and his efforts to keep the Chief on-side, figure prominently in the leaks, well.... Also it was a (visibly angry, they say) AMK who read the dissent from the bench, despite its being a joint product with many Scalia touches.

    Furthermore, it's hard to imagine any of the other three leaking. Scalia would fob a reporter off with a quip. Alito would act (and be) shy. Thomas, for all I know and as I may well guess, has his staff direct all press calls to a dedicated line with a rude message and a journo joke.

    This is not the occasion to write about Justice Kennedy's previously-evidenced fondness for the media limelight -- because if the facts are as they are turning out, he acted in part because he was facing a mammoth attempt to outdo him in that regard. (And in part, b/c he was just plain right about the Constitution.)

    As Time writer Sorensen notes: "We tried to talk him out of it, but President Obama and the liberal New York Times were just too powerful is not a narrative I imagine Roberts would endorse." Surely not, but that, and not "wise judicial statesman Roberts rises above partisanship," is going to be the narrative he gets. Say this much for AMK -- he shouldn't play the media, but at least when he does, he plays 'em right.

    :: David M. Wagner 8:43 PM [+] ::
    :: Monday, July 02, 2012 ::
    Good news, of a sort: I'm not right all the time. What a burden to set down. On May 23 I wrote that the campaign to make Roberts switch his vote by scaring him with threats of damage to his "historical reputation" and what-not -- this campaign was blisteringly obvious at the time -- wouldn't work.

    Silly me.  And, once again, apologies to Justice Kennedy! 

    Thanks to illegal and immoral leaks from judicial clerks (who else could the sources possibly be?), ace Supreme Court reporter Jan Crawford, the thinking man's Linda Greenhouse, has revealed that CJ Roberts changed his mind not at the last minute (as I erroneously speculated, tho' not without foundation), but earlier in the process; likely in early May, while working on what would have been a 5-4 opinion for the Court striking down Obamacare.

    (In partial defense of my damaged claims to infallibility, I did write in my June 29 post, which was before Ms. Crawford's reporting: "In short, the Court got zilch, or worse - it got, as a fact on the ground, the principle that a campaign of threats against its 'legitimacy' (whatever that means) in the elite press can actually change outcomes.")

    Now we turn to Sen. Patrick Leahy, D-Vt., Chairman of the Judiciary Committee and indefatigable liberal activist. Sen. Leahy gave a speech on May 14 entirely targeted at the Chief. Not at Justice Kennedy, whom everyone thought would be the waverer if there were one, but exclusively at Roberts.

    What did Leahy know, and when did he know it?

    :: David M. Wagner 10:01 AM [+] ::
    The Wall Street Journal agrees with me -- and explains, better than I did or probably could, exactly why the taxing power discovered in the Obamacare opinion is novel and dangerous. Tag: I Hate Being Right All The Time

    :: David M. Wagner 9:42 AM [+] ::

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