It's interesting that some Justice (at least) is singing, so soon after the event. Both the ruling and the makeup of the majority in Sebelius was surprising, the latter far more so than the former since conservative Chief Justice Roberts looked for and found a way to uphold the Affordable Care Act.
I don't think it's unprecedented, though I may be confusing retired Justices who've been source material for books about the Court. Either way, I'm struggling to figure out the motive since I take the reporting of CBS's Jan Crawford as accurate.
Salmon was as harsh on the Court as he was effusive about Crawford:
Instead, it seems, the Supreme Court has become infected by exactly the same partisanship which has corroded civic life everywhere else in DC. Maybe that was inevitable. But this story is still a signal journalistic accomplishment — and it was written at law-geeky length by a TV reporter. Crawford deserves all credit for getting this scoop — and for showing that there is life yet in broadcast journalism.Leaks at the other two branches is designed either to take someone down or burnish your own view. What the three patently conservative judges — Scalia, Thomas and Alito — and Justice Kennedy believe is a matter of public record. Nobody in its constituency is assailing the Court's conservative wing. They need not promote the idea that they struggled to convert Roberts which, in such matters, goes without saying.
So if Roberts' three natural allies wouldn't speak out of school, who else might be motivated to weaken the Chief Justice or burnish his image?
The only outlier in dissent was Justice Kennedy. But what would his motive be? Could it be that
being on the "wrong" side of a 5-4 decision is a worse PR problem for him than for Roberts? Would he have been less vulnerable to criticism among his constituency if the ironic contrast with Roberts' decision wasn't the story?
The leaker could be Roberts himself, though the picture Crawford paints of the Chief Justice would seem to do nothing to temper the anger of some conservatives (one of whom actually posits that Roberts has literally lost his mind).
I'm not sure I mind knowing more about the inner workings of the court, though the prospect of overtly politicized Justices would be disastrous.
It's also ironic that this exposé comes from a TV journalist, since the Court's lack of transparency — a positive if it shields them from influence — could be improved by televising oral arguments.
They may be leaking like cheap pols, but I can't imagine any of them changing one little thing about how they comport themselves for the camera.
+John C Abell