There was some pretty spectacular misreporting last week by the likes of CNN and Fox News on the Supreme Court’s decision to uphold President Obama’s Affordable Care Act, and now there’s an even bigger controversy—CBS reporter Jan Crawford reported on Sunday that the Court had sprung a leak.
“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,” Crawford, the network’s chief legal and political correspondent, wrote in a story Sunday on the CBS news website. She cited “two sources with specific knowledge of the deliberations.”
Crawford did not respond to questions from CJR about how she snagged the scoop, the media response has been strangely muted, save for a brief mention of the leak far down in a piece by Adam Liptak of The New York Times and an opinion piece by the Washington Post’s Charles Lane.
According to Vanity Fair contributing editor David Margolick, a lack of acknowledgement of Crawford’s scoop from her colleagues is a sign of embarrassment.
“If other reporters ignore or bury the story, they hide the fact that they didn’t do the work themselves,” said Margolick, who uncovered his own Supreme Court scoop in 2004 in the Bush v. Gore case. “It’s honorable that Adam Liptak even mentions the leak, because historically that wouldn’t have happened.”
Thorough coverage of the leak and its implications can be found on legal blogs, which have been keenly speculating about the identity of Crawford’s sources. Slate senior editor Dahlia Lithwick, who has long covered the Court, told CJR that she too sees the story as surprising, coming from an institution that is “paranoid, vigilant, and crazed about leaks.”
“The four conservative justices must have been frustrated that they couldn’t get Roberts on board, so someone authorized a leak,” Lithwick said, adding they likely did so to “deflect and discredit” Roberts’s decision.
Other bloggers are speculating about the identities of the sources. Orin Kerr, a professor of law at George Washington University, picked out details about “arm-twisting” and motives from Crawford’s story that he thinks could only come from the justices themselves or close-at-hand clerks.
Ann Althouse, a law professor at the University of Wisconsin, believes one of the sources is Justice Anthony Kennedy, the judge thought most likely to vote to keep Obama’s healthcare plan, who in Crawford’s story pressures Roberts to do the exact opposite. Althouse takes issue with Crawford’s tone, drawing out moments where the article “reads like PR for Kennedy” and even going as far as to say that Crawford is “fawning” over him.
The Supreme Court pathologically avoids any window on their inner workings; The New Republic noted before the decision that, with fewer employees in the know than in most other government agencies, a shorter time span between issue and decision, and clerks whose future employment depends on getting stellar references from their bosses, the Court’s silence is rarely breached.
It’s worth noting that Crawford, who has covered the high court for almost 20 years, makes a point in her story of Roberts’s preoccupation with media coverage, which she believes amounted to “external pressure” on him to uphold the ruling:
Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.
Lithwick, of Slate, also noted the changing dialogue to one about “evil liberal commentators putting pressure on on judges” as the courts continued to debate the bill.
Partisan media coverage aside, the true story here is that the leak looks suspiciously like backlash from the right-wing faction of a disgruntled Supreme Court—and that’s a scoop Jan Crawford shouldn’t be reporting on alone.
Amen - if the last great institution falls to Limbaugh and his ilk. Will anyone notice?
#1 Posted by Ann Burns, CJR on Tue 3 Jul 2012 at 05:57 PM
A blogger/television reporter in Hawaii alluded to this last week, and it didn't take a "leak" to figure it out. Actually reading the opinions (I have not read them) is sufficient to deduce that CJ Roberts switched sides...
http://blogs.hawaiinewsnow.com/howard/2012/06/the-majority-ruling-that-became-a-dissent.html
#2 Posted by Doug, CJR on Tue 3 Jul 2012 at 11:54 PM
'Backlash' . . . 'right-wing faction' . . . 'disgruntled' . . . It looks like Sheffield is in full command of the liberal-blab vocabulary. For those of you who are not familiar with the duckspeak of urban journalism, only 'conservatives' are 'disgruntled', never 'liberals'. (People on the Left are sometimes unhappy or outraged, but not tagged as 'disgruntled', which is an unpleasant-sounding term due to that 'grunt' in the middle, and is therefore assigned to 'conservative' attitudes, though liberals by the textbook definition are a disgruntled lot almost as a chronic condition of dealing with events that don't always follow a 'progressive' narrative.) Also, in the media duckspeak, there aren't that many 'liberals' or 'left-wing' factions on the Court or anywhere else - US politics is divided between the 'right-wingers' and everyone else, all of us non-ideological, pragmatic folks.
'Backlash' is also a reverse-halo term, reserved for those 'right-wing' types. Leftist reaction to, say, the 'Citizens United' ruling is never called 'backlash', which has acquired a connotation of irrationality. In the real world, it seems to me that the Left is still fighting 'Citizens United' - none of those MSM polls and think-pieces indicating that the country wants to 'move on' instead of re-fighting old battles. (Watch for a lot of stories with this 'hook' from the NY Times and therefore the rest of the MSM as the election approaches, with respect to the Obamacare ruling.) I guess it just depends.
And heaven forbid that the occasional 'conservative' victory at the Court should ever be referred to as 'historic' or 'landmark' or 'a milestone'. Narrow progressive ideology holds that victories by 'right-wingers' are transitory and will be wiped out be the March of History toward the progressive utopia, which seems to look like . . . I don't know . . . Sweden, but without the all-whiteness.
#3 Posted by Mark Richard, CJR on Thu 5 Jul 2012 at 12:45 PM
I don't know marky, seems to me much of the OWS and the anti-war movement were labeled 'disgruntled' or worse.
Anyways, not really looking to play "who's got the bigger victimhood" today.
This may become a problem.
http://digbysblog.blogspot.ca/2012/07/profits-equals-liberty-in-our-corporate.html
http://arstechnica.com/tech-policy/2012/07/verizon-net-neutrality-violates-our-free-speech-rights/
"That's not all. Verizon also believes the FCC's rules violate the Fifth Amendment's protections for private property rights. Verizon argues that the rules amount to "government compulsion to turn over [network owners'] private property for use by others without compensation."
If the courts rule that the FCC has exceeded its authority under telecommunications laws, Congress could respond by changing the law to explicitly authorize network neutrality regulations. But if the courts accept Verizon's constitutional arguments, then imposing network neutrality rules on the nation's broadband carriers could require a constitutional amendment."
I don't know. The courts has claimed in the past that the use of private power (ownership) to marginalize groups of people as being less than equal is unjust. (People who use the service of a restaurant as intended cannot be barred from service based on a charecteristic.)
One has to define the internet as a service it is in use today. That service has expectations of its providers by its clients. That service, within the boundaries if legal transaction, provides data to requesters regardless of source.
The internet is a railway of information, not a distributor. Internet providers should not try to form trusts, as the railways did, with our information. They can enforce bandwidth caps and data caps on consumers if they want to manage their traffic, but their ownership of the network does not give them domain over the the network's content, the makers of which have already paid for their conduits onto the Internet. If verizon makes this argument which assumes control over how the information they are charged with transporting is allowed and prioritized, we people who depend on a free net could have a real big problem on our hands.
And this "citizens united" court has proved itself nothing but sympathetic to these kinds of arguments.
#4 Posted by Thimbles, CJR on Thu 5 Jul 2012 at 07:58 PM
This was not a scoop. You state that Jan Crawford "has covered the covered the high court for almost 20 years". Rather Crawford covered the court for almost 20 years, but was not covering the court at the time of the decision. She was covering the Presidential campaign. Thus it is virtually certain that Crawford's contact with the leakers was initiated by the leakers themselves, presumably in hopes of finding a credulous reporter who would convey the desired spin on the court's decision through a major media outlet.
#5 Posted by SBayer, CJR on Sat 7 Jul 2012 at 04:59 AM
Ahhh Clarence Thomas. It's a pity that you and your tea party wife's ethical difficulties got forgotten in the wake of the Weiner fiasco.
But think progress hasn't forgotten:
http://thinkprogress.org/justice/2012/07/03/510247/thomas-crawford-leaks/
#6 Posted by Thimbles, CJR on Sun 8 Jul 2012 at 06:51 PM
God bless Justice Roberts for hearing a higher voice than "Partisanship."
#7 Posted by Vince Gamma, CJR on Wed 18 Jul 2012 at 09:40 PM