ThinkProgress Thinks Justice Thomas Might Be a Bit Leaky

Ian Millhiser at ThinkProgress is willing to ask what The New York Times might have maybe been hinting at: Was Justice Clarence Thomas one of the unnamed sources who told CBS reporter Jan Crawford that Chief Justice John Roberts switched his vote on the Affordable Care Act's individual mandate?

As evidence, Millhiser points to two paragraphs buried deep in a Times story by Adam Liptak:

But the possibility that conservatives had victory within reach only to lose it seemed to infuriate some of them. The CBS News report, attributed to two sources with "specific knowledge of the deliberations," appeared to give voice to the frustrations of people associated with the court's conservative wing. It was written by Jan Crawford, whose 2007 book, "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court," was warmly received by conservatives.

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.

Millhiser's post looks at Crawford's history of defending Thomas, but admits it's the evidence is a bit circumstantial:

None of this, of course, proves conclusively that Thomas is one of Crawford's two sources. But it does demonstrate that the two of them have a strong working relationship based on mutual admiration for each other. If Thomas were looking to leak confidential information to a member of the Supreme Court press, it is likely that he would choose the one reporter he has publicly revealed to be his favorite. The fact that that reporter is a well-regarded conservative journalist who also works for a high profile outlet is gravy.

It is a bit intriguing that Liptak included that praise from Thomas in a story that focuses on Roberts' decision and otherwise has very little to do with Thomas. It stands out as odd and a bit suggestive.

More Reason on Justice Thomas here.

Comments

[Pro Libertate]

It's a clerk. Even if it's really Thomas.

[John]

I am glad it got leaked out. It would be bad enough if Roberts actually believed the shit he wrote. You could at least respect his right to an opinion even if you didn't agree with it. But his changing his vote because of liberal bullying is just pathetic. He deserved to be publicly shamed and to be held in complete disrepute by both sides.

[Drake]

Yep - calling out the coward.

[Mo]

You never explained how he got bullied. The media already wrote mean things about him and the Dems already made mean speeches about him. He can't be fired and Obama can't pack the court to weaken him. A bully can only bully people through a position of power (whether physical or positional). How can you bully a guy that has nothing to lose? If the bullies at my school only used NY Times op-eds and speeches that amount to nothing as their weapons, there would have been a lot of nerds rejoicing.

[Almanian's Evil Twin]

They teased him on Facebook.

LEAVE JOHN ROBERTS ALOOOONE!!!!!

[Mo]

Give us your lunch money or Paul Krugman and Maureen Dowd will write a cutting op-ed about you in the NY Times.

[SugarFree]

Give us your lunch money or Paul Krugman will order his beard-clams to murder you.

[Brutus]

They fucking hate Thomas, even more than Scalia, and my orders of magnitude. He's truly the only Justice that Gets It, and they know it. That he's black makes them doubly bitter, as he's supposed to be a reliably Leftist vote on the Court, yet there he is, a veritable reincarnation of Madison.

They'll do all they can to smear him. The best part: Thomas could give a shit.

[Suthenboy]

Exactly why he is my favorite of the Nazgul. If I were to purge the court and replace them with my picks, Thomas would actually be one of my picks.

[Almanian's Evil Twin]

Second

[Juice]

And then he would get cops to strip search you.

[Sudden]

Justice Thomas said, referring to Ms. Crawford by her married name at the time.

TEH INTRINZIK PATERNALIZM!!1!1!!1!!

[Almanian's Evil Twin]

"Is that a pubic hair on your Coke can, or are you just happy to see me?"

[R C Dean]

I very seriously doubt it was Thomas.

One of his clerks, maybe, as they would be familiar with the reporter's book and Thomas's regard for her.

I could even see Thomas doing a "Will no one rid me of this troublesome priest" bit and more or less putting his clerks up to it, but no more than that.

[John]

So you are saying he expected his clerks to kill Roberts in the court's cambers? Wow.

Remember too that Thomas never hires Ivy league clerks. He hates the entire Ivy league. So it is just possible, his clerks have some balls and integrity.

[Suthenboy]

"So you are saying he expected his clerks to kill Roberts in the court's cambers? Wow."

Sure...split his skull with a sword after he is down so as to leave a chink in the floor...so all who come after for a thousand years will be reminded.

[R C Dean]

Well, yeah. If I had clerks, you're damn right I'd expect them to do the wet work.

[Almanian's Evil Twin]

What are minions for, if not the dirty work? Duh!

[Pro Libertate]

Maybe it was Anita Hill?

[Pip]

I too am doubting Thomas.

[ConHugeCo]

win

[wareagle]

Millhisers is trying to glom onto someone else's enterprising by floating a theory. So, Thomas sees Crawford as a credible reporter. And?

Regardless, it's palace intrigue meant to distract from the central story - what the hell was Roberts thinking in changing?

[R C Dean]

what the hell was Roberts thinking in changing?

Here's what I think:

Roberts has long been a big fan of extreme judicial deference - judicial pacifism is an excellent term for it. It was a big part of his pitch to the Senate during confirmation.

Roberts has convinced himself that SCOTUS legitimacy depends on it being seen as apolitical, even noncontroversial on major issues.

He had to agree with the dissent's Commerce Clause, but came to believe that decision would be damaging to the Court because it would be seen as political (another 5-4 decision that goes against the Democrats) on a highly controversial issue.

So he racked his brains for a way out, and came up with the idea that he could be Solomonic, a John Marshall of a new Marbury v Madison, by ruling that the mandate both is and is not Constitutional.

[generic Brand]

I understand that, but then couldn't he have just ruled it unconstitutional but said "Had they done this as a tax and not tried to fit it under the commerce clause, it would be okay." Same result as what he did, except Obamacare is gone.

He fought to be apolitical by becoming hyper-political.

[R C Dean]

I'm guessing he concluded that all anybody would care about was the fact that another 5-4 had gone against the Dems. This wasn't about jurisprudence, to him, as much as it was about protecting the Court.

Of course, he pretty well botched that, too. When it comes to legitimacy, there's no substitute for doing the right thing.

[Iamtheeviltwin]

Robert's belief in Judicial Restraint is high though. He said in his own opinion why he ruled the way he did:

...it is only because we have a duty to construe a statute to save it, if fairly possible, that ?5000A can be interpreted as a tax.

Part of the philosophy of Judicial Restraint is that unless there is absolutely no other path but to rule a law unconstitutional the court should defer to elected officials and through whatever twisted reasoning make sure the law is upheld.

Roberts defense of the law is not a real surprise for anyone who has followed his Supreme career from the beginning.

[Pro Libertate]

We'd be much better off with a doctrine of judicial defiance, where legislation is presumed unconstitutional. Not twisted and folded and jammed into some perverted idea of constitutionality through judicial deference.

[Kant feel Pietzsche]

Now there are people talking about how Roberts' medical history may have affected his vote.

I'm still not sure, and may never be sure if I understand his decision. I think he faced just as much pressure from the left on the United Citizens decision as he did this decision, and he followed the constitution that time.

I'm still (somewhat) holding out the hope that Roberts was true to his word in his confirmation hearings, that he intended to act strictly as an umpire and never as a player.

He did side with the majority of justices inre the concept that the bill did not meet muster under the commerce clause. He did side with the majority inre the concept that the states could resist implementation without suffering a penalty. Both proper decisions, based on the constitution, which is supposed to be the only rule book in the room.

Roberts might have seen a way out of the usual trap of ideology that 7 of the other 8 obviously fell into, Kennedy being the lone exception.

[Kant feel Pietzsche]

(continued)

He might be saying to Congress, "If you want this bill, you must sell its continued existence as a tax, because you are in fact raising taxes to pay for it. You now have no choice in the matter. It's a tax bill, or no bill. You can't have your cake, and eat it too. You can't hide behind warm intentions.

If you can do that and survive re-election challenges, then power to you. If you cannot, then you got what you had coming to you for conceiving of this law. Either way, the people will have spoken on the matter, which is as it should be."

Or, I could just be nuts. Time, and subsequent decisions will tell the tale.

[R C Dean]

So why he couldn't he say to Congress: "You want this bill, pass it again, and get it right this time: as a tax." That is a perfectly valid judicial result.

Utterly disregarding the plain language and voluminous public record on legislative intent, however, was not his only option.

It's a tax bill, or no bill. You can't have your cake, and eat it too. You can't hide behind warm intentions.

But that's exactly what he facilitated: he let Congress have its cake and eat it too, by passing a bill while loudly declaring it was not a tax (to avoid political accountability), and then deeming it to be a tax bill.

On the one hand, he says that, ultimately, political accountability is the cure for this thing, while on the other hand rewarding them for avoiding political accountability.

[Kant feel Pietzsche]

They can claim it's not a tax bill, but the record now says otherwise.

If the electorate is stupid enough to buy the old "who you gonna believe? Me or your lying eyes?" routine, they deserve what they get.

[Kant feel Pietzsche]

Personally, I think it's going to get very interesting early this fall, with challenges to the mandate from the individual states (for which his ruling opened the door wide)

[Apogee]

while on the other hand rewarding them for avoiding political accountability.

Perhaps. But it's also true that Obamacare is unpopular as well as bad law, which means that those who passed it don't have the luxury of claiming to have 'tried' to 'solve the problem', only to have been foiled by the nasty GOP.

Accountability for eventual results sometimes bites harder than for intentions.

[Tman]

Keep in mind the fact that Jan Crawford has nothing but circumstantial evidence.

I spoke with my friend who Clerks for Roberts on Sunday, and we discussed the secrecy aspect and how well they keep things from the press. His reason why it really isn't that hard is because there are very few people who actually are privy to the conversations amongst the Clerks and the Justices. There are about four clerks for each Justice, and those are the only people with access to information such as this. It would be EXTREMELY difficult to leak any info under these circumstances and not get caught doing so.

I don't believe there was a leak, and still believe this whole story is completely circumstantial without an inkling of evidence to back it up.

[Almanian's Evil Twin]

Colonel Mustard, in the library, with a pipe wrench

[Mo]

Could it have been Thomas' wife? She's pretty politically involved, and could be privy to info like this. It would also throw everyone off the right trail.

Though theoretically, it could be and justice's spouse with an ax to grind.

[Almanian's Evil Twin]

Oh, sure, the black woman did it.

RACIST

[Mo]

Uh, are you sure about that?

http://wonkette.com/wp-content.....thomas.jpg

[Pro Libertate]

What, you're suggesting that Thomas doesn't know that his wife is white?

RACIST!

[ChrisO]

So, we have one leftist agitprop media outlet reporting on what another leftist media outlet reported about how yet a third leftist agitprop media outlet got a story about something that may or may not have actually happened.

Do I have all that straight?

[Almanian's Evil Twin]

TOP. Men.

[Pro Libertate]

Maybe they just bugged the chambers long ago.

[Fluffy]

What's the basis for calling this confidential information?

As far as I'm aware, Thomas can say any damn thing he wants about the inner workings of the court and no one can say fucking shit about it.

Even using the term "leak" is prejudicial here. This isn't an item related to national security. No one's legal confidentiality was breached.

http://www.npr.org/templates/s.....Id=1537409

There's Nina Totenberg doing a special on the deliberation process for Brown v. Board of Education. Is this all "leaked" material?

[Auric Demonocles]

That was before anti bullying statutes.

[John Thacker]

You can make just as good of an argument reading that article that it was Justice Kennedy. The article fawns over Kennedy at some length, one piece of evidence that he could be a source.

Of course, there could be two sources.

[Kant feel Pietzsche]

Originally reported as two sources.

[GettiYetti]

Really? Are you serious? Wow man thats like way too cool!

http://www.Planet-Privacy.tk