Seven Theories About Who the Supreme Court Leaker Was

The Supreme Court is usually very good about keeping its deliberations secret, but it hasn't worked out that way for its ruling on Obamacare.

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The Supreme Court is usually very good about keeping its deliberations secret, but it hasn't worked out that way for its ruling on Obamacare. Over the weekend, CBS News' Jan Crawford revealed that "according to two sources with specific knowledge of the deliberations," Chief Justice switched his vote from one to strike down the law to one to uphold it. So who are the two rats? Politico's Dylan Byers explains that the speculation is all over the map. The plot only thickened when Salon's Paul Campos reported Roberts wrote both the opinion and the dissent, according to "a source within the court with direct knowledge of the drafting process." Who could that be? Here's a guide to the many theories.

Suspected Leaker: Justice Clarence Thomas

Theorists: George Washington University professor Orin Kerr, New York Magazine and GQ's Jason Zengerle, The New Republic's Noam Scheiber, The New York Times' Adam Liptak (the last, more of a mild suggester than a theorist, though).

Theory of the Leak: Kerr says Crawford's story has details about how the justices thought about the case, stuff that only someone super-close to the process would know. "On one hand, Crawford appears to have particularly good relations with several of the Justices, especially among its more conservative members," Kerr writes, pointing to a Crawford interview with Thomas. On Twitter, Zengerle notes that Thomas is the "hero" of Supreme Conflict, Crawford's 2007 book about the Supreme Court. Schieber points out that Thomas also gave Crawford "several high-profile interviews." And then Liptak writes, "In a 2009 interview on C-Span, Justice Thomas singled her out as a favorite reporter. 'There are wonderful people out here who do a good job — do a fantastic job — like Jan Greenburg,' Justice Thomas said, referring to Ms. Crawford by her married name at the time."

Suspected Leaker: Justice Antonin Scalia

Theorist: Kerr

Theory of the Leak: Again, Crawford is close to Court conservatives. Here’s her interview with Scalia.

Suspected Leaker: Justice Anthony Kennedy

Theorist: Kerr, Schieber

Theory of the Leak: "Crawford’s piece really goes out of its way to cast [Kennedy] as principled and intellectually formidable, something that, suffice it to say, is a bit at odds with the conventional wisdom," Scheiber writes. "As for Kennedy’s motives, one gets the sense reading Crawford’s piece—which was clearly shaped by Kennedy’s “close associates,” if not Kennedy himself—that he smelled an opportunity to redeem himself with conservatives and relinquish the turncoat title to John Roberts."

Suspected Leaker: Not the Supreme Court Clerks

Theorist: Kerr

Theory of the Leak: "If clerks did this, it was just crazy: A clerk who leaked this and is identified has likely made a career-ending move… If the Court still works as it did ten years ago, all of the clerks are still working at the Court: The clerks don’t start to rotate out for at least another week. Even assuming a clerk or two was so extraordinarily dismissive of the confidentiality rules to leak this, it would be nuts to leak over the weekend when you have to show up at the Court for work tomorrow."

Suspected Leaker: Okay Maybe the Clerks?

Theorist: The Wall Street Journal's Christopher Shea

Theory of the Leak: Clerks leaked details about Bush v. Gore four years after the decision. "If the stakes of the Sebelius decision were as high as rhetoric on both sides made them out to be, then leaking about how things turned out as they did could easily be viewed as a patriotic, if difficult, decision," Shea writes.

Suspected Leaker: John Roberts' Own Clerk!

Theorist: @nycsouthpaw

Theory of the Leak: Salon's Paul Campos reported Tuesday afternoon that "a source within the court with direct knowledge of the drafting process" says Roberts wrote both the opinion and the dissent. That's why the first two-thirds of the dissent make no reference to Roberts' opinion, and the last third does. Who could possibly have told Salon that? "Starting to think a Roberts clerk has gone rogue," @nycsouthpaw tweets, admitting it's just a theory. "Campos isn't terrifically subtle, so he missed his source's meaning. A Roberts clerk--not Roberts--wrote the dissent," he says. More juicy theorizing: "Scenario: Roberts knew all along he'd make a late decision, and directed two of his clerks to prepare alternative drafts... both drafts end up getting circulated, and when the decision was made the dissenters incorporated the losing draft out of spite."

Suspected Leaker: Liberal Justices

Theorist: BuzzFeed's Ben Smith

Theory of the Leak: Crawford's source said the dissent didn't mention Roberts' opinion in order to "signal the conservatives no longer wished to engage in debate with him." Salon's source says that's "pure propagandistic spin" and that it's because Roberts' chamber wrote both. Smith suggests this is a liberal justice pushing back against Thomas.

This article is from the archive of our partner The Wire.