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.