Why did "sources familiar with the private Supreme Court deliberations" talk to CNN about the Census Case?

What do we make of the Department of Commerce leak? And did Justice Sotomayor lose the majority opinion in Gundy?

|The Volokh Conspiracy |

Shortly after NFIB v. Sebelius was decided, Jan Crawford dropped a bombshell report: Chief Justice Roberts switched his vote. Over the ensuing weeks, months, and years, more information was released from the Court about how, why, and when he changed his vote. Why was this information leaked? Generally, private information is revealed for self-serving purposes. Perhaps the conservatives were frustrated with the Chief's vote. Perhaps the liberals were trying to rehabilitate the Chief. We may never know for sure.

Today, Joan Biskupic of CNN dropped another bombshell report:

Chief Justice John Roberts cast the deciding vote against President Donald Trump's attempt to add a citizenship question to the 2020 census, but only after changing his position behind the scenes, sources familiar with the private Supreme Court deliberations tell CNN. . . .

After the justices heard arguments in late April, Roberts was ready to rule for Ross and the administration. But sometime in the weeks that followed, sources said, Roberts began to waver. He began to believe that Ross' rationale for the citizenship question had been invented, and that, despite the deference he would normally give an executive branch official, Ross' claim had to matter in the court's final judgment, which Roberts announced on June 27.

I pose the same question for Department of Commerce as I did with NFIB.  Why was this information leaked? What is the potentially self-serving purpose for revealing this information? And why was it leaked now, nearly three months after the case was decided?

This leak reaffirms a principle we are all too-familiar with: the Chief Justice can be swayed after a case is submitted for argument. In 2012, perhaps he was moved by certain political currents concerning the ACA. (I wrote about the aftermath of oral arguments in Part VII of Unprecedented.) And in 2019, perhaps Chief Justice Roberts was affected by the release of the Hofeller files. Biskupic cannot say for sure:

It is not known how Roberts might have been influenced in the census dispute by information that emerged on May 30 in news reports and court filings that appeared to reinforce the possibility that Ross had not been truthful.

This leak provides further encouragement to those who try to work the courts after a case is submitted. Though, to be frank, no one needed this reassurance. At this point, all court watchers know Roberts's modus operandi by now.

Why was this information leaked? Was it a move from the right to embarrass the Chief, or put pressure on him ahead of this significant term? If so, why wait so long? It would not have made much sense to release this information in the immediate aftermath of Department of Commerce, because there was still a chance that the Trump Administration would try to issue a new policy. Though, soon enough that plan was abandoned.

Finally, a note on sourcing. Who are "sources familiar with the private Supreme Court deliberations"? There are at least two source (plural). They could be a mix of (1) Justice(s), (2) clerk(s), (3) non-Court personnel in contact with a Justice, or (4) non-Court personnel in contact with a clerk. I am skeptical Biskupic would run a story of this magnitude based solely on information from people in category 3 or 4. There is likely someone in category 1 or 2.

Towards the end of her report, Biskupic also drops a bombshell about Gundy v. United States, a case of far greater significance than the one-off Department of Commerce:

But the decision-writing process is fluid. As they draft and share opinions, justices sometimes change positions, subtly in ways that affect parts of the legal reasoning undergirding an opinion, or more dramatically in ways that affect the entire outcome.
Sources familiar with deliberations say that two such noteworthy changes occurred last session, in the census controversy and in a dispute over the validity of a federal sex offender registration act.
In that latter case, the justices upheld the act by a 5-3 vote. (Justice Brett Kavanaugh did not participate in that case heard on the second day of the new session because he was not yet confirmed for the bench.)
Earlier in those negotiations that began in October and stretched until June, a different five-justice majority was headed in the opposite direction, toward invalidating the law and potentially limiting the authority of Congress to delegate power to another branch of government. (The 2006 Sex Offender Registration and Notification Act gave the attorney general authority to determine how the law applies to some convicts; Roberts, who dissented from the final decision preserving Congress' delegation power, did not switch his vote in this case, Gundy v. United States.)

This passage is far more perplexing than the discussion about Department of Commerce. In Gundy, the short-handed Court upheld the SORNA provision by a 5-3 vote. Justice Gorsuch dissented, joined by the Chief Justice, and Justice Thomas. Biskupic tells us that Roberts did not change his vote. And I am doubtful Gorsuch or Thomas would have changed their vote. Even if Justice Alito originally joined the conservative trio, there still would not have been a five-member majority. Therefore, if Biskupic's reporting is correct, one member of the liberal wing–the Ginsburg Four!–would have originally gone along with the conservatives to declare unconstitutional the SORNA provision.

My theory: Justice Sotomayor was given the original assignment. She was the only Justice who did not write an opinion from the October sitting. Perhaps she tried to craft a narrow, pro-defendant opinion that would have killed the SORNA regulation, without opening up a new front against the administrative state. At that point, Justice Kagan wrote a dissenting opinion for herself, and Justices Ginsburg and Breyer. However, something changed. Perhaps Justice Gorsuch circulated a concurring opinion (which would become his dissent). At that point, the conservatives may have refused to join the Sotomayor opinion, because it was too narrow, and perhaps foreclosed future expansions of the nondelegation doctrine. Or, it is even conceivable that Justice Sotomayor did not want to give credence to the Gorsuch position, abandoned her own majority opinion, and decamped to Kagan's bloc! At that point, the Court would have fractured 4-4. To avoid that outcome,  Justice Alito bit the bullet and did something he had never done before: join four liberal Justices. (Could Justice Kagan have withdrawn her own opinion, forcing a 4-4 affirmance?!) But doing so ensured that the Gorsuch opinion would be published, and, with Justice Kavanaugh on the bench, become a majority opinion.

What do you think?

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  1. Alternative, she is just making it up.

    Unnamed sources are garbage. I say this as a confirmed Roberts hater.

    1. Many people are saying…

    2. I don’t think unnamed sources are complete garbage- sometimes they are the only way we learn about malfeasance- but I am definitely skeptical of these sorts of stories. Judicial clerks have A LOT to lose from leaking so quickly. Anyone caught leaking is going to have a very hard time getting work as a lawyer. Keeping our clients’ secrets is a central tenet of the job.

      So I am quite skeptical that multiple clerks leaked and think it is more likely that some folks over there are smearing Roberts.

  2. I think Roberts is and has been a plant and now has been given the go-ahead to counter Trump whenever possible.

    1. Yeah….that’s why he voted to uphold the travel ban last year. And gave Republicans a huge win by saying partisan gerrymandering is completely nonjusticable. And denied a stay in a major asylum case just today. So yeah whenever possible. Except for all the times he doesn’t.

    2. GOP tin foil levels rising.

  3. Roberts is being blackmailed. There isn’t anything a leftist will not do. The ends justify the means.

    1. If Roberts was being blackmailed, the partisan gerrymandering case would have come out the other way.

      1. I don’t think he’s being blackmailed, at least not anymore. (Maybe for the ACA case.) But he’s under a lot of pressure, and cares far too much about his reputation in liberal circles.

        But every time you cave, it gets easier, regardless of why you did it the first time. Just like every time you stand up to the pressure it gets easier. You can’t expect the buckled beam to support a good load the next day. So he’s never going to be reliable again, he’s just going to keep getting worse.

    2. My life is over because this question is not in the census—I hate you mom!

      13 year old girl Volokh reader

  4. “Perhaps the conservatives were frustrated with the Chief’s vote. Perhaps the liberals were trying to rehabilitate the Chief. We may never know for sure.”

    Or maybe some people know but are protecting their fellow right-wingers. I recall some talk of that in these parts.

  5. The conservatives must be convinced they’ll get a good non-delegation case that will get them five votes sooner rather than later that will result in a sweeping change. Otherwise it makes little sense to not join the original narrow Sotomayor opinion, because the first successful nondelegation challenge in 80 years would be a big deal even if it reaffirmed old precedents.

    1. Yeah. You can always broaden the doctrine later. Shechter Poultry is good law and underutilized.

  6. “This leak reaffirms a principle we are all too-familiar with: the Chief Justice can be swayed after a case is submitted for argument. ”

    That must horrify people who prefer the “My opinion on Friday is always the same as it was on Monday, regardless of what occurred on Tuesday, Wednesday, and Thursday’ approach to life.

    1. Good point. There’s definitely nothing wrong with finding a case difficult and changing one’s mind.

  7. I think Chief Justice John Roberts is a flaming, closet homosexual, and the Democratic machine has incontrovertible evidence to support this; and he is being blackmailed.

    1. Yeah, that certainly was demonstrated by his votes in the marriage cases.

    2. I see these comments and I wonder how one blackmails a person who has a lifetime employment guarantee. He cannot be impeached for being gay, so who cares… maybe for being a criminal.

      1. You blackmail them by threatening to ruin their social life, obviously. Being invited to the right parties and expecting to sound good in the history books means a lot to some people.

    3. You do realize nobody cares about that in 2019 outside of the Middle East??

      1. Google “Scott Lively”. He’s made a career out of caring whether other people are gay.

    4. So the obvious galaxybrain move is for the GOP to officially say that, without minimizing the personal feelings of disapproval common in the party, the sexual orientated of officeholders is a purely private matter. This would then minimize any harm to Roberts of being outed and hence remove this horrible blackmail power from the Democratic machine.

  8. Yeah, that certainly was demonstrated by his votes in the marriage cases.

  9. What I think is that the private deliberations of the Justices should stay private, and the employee (clerk) with an axe to grind should be fired. Of course, maybe its a “former” clerk.

    These stories are nothing more than a transparent effort to de-legitimize majority opinions.

    1. It’s probably more likely to be a justice than a clerk. Potter Stewart was the primary source for The Brethren.

  10. Am I the only one that read that Roberts initially believed the individual mandate was unconstitutional BUT severable??? That is the current situation!!! Republicans repealed the individual mandate and because of the way Roberts characterized it as a tax and the way the CBO scored it as a $300 billion cost Republicans got an extra $300 billion in tax cuts that has resulted in 2.5% GDP growth!

  11. I can’t remember from where or whom, but I believe I read that too. He apparently also believed that the original Medicaid expansion was constitutional. But when he wanted to save the mandate he decided he needed a substantive conservative win, so he convinced Kagan (who brought Breyer) to flip on that aspect.

    1. Correct. His initial ruling would have been awful for Republicans because the individual mandate was a great issue for Republicans for several years. Granted now the Medicaid expansion has helped Democrats win several governorships so it would have prevented Republicans from expressing their inner douchebagery which is what this is all about. Really this episode proves just how inconsequential the Supreme Court really is. And once Roe is overturned next year or the year after nobody will care about the Supreme Court.

      So take Heller for example—the ruling is so limited that even Sharpton supports it when push comes to shove!?!

      1. “His initial ruling would have been awful for Republicans because the individual mandate was a great issue for Republicans for several years.”

        This sort of reasoning has been handicapping the GOP for decades now. Don’t actually deliver on your promises, because if you win the fight, they don’t need you any more to fight the good fight. Take a dive instead, so that they’ll reelect you to continue fighting for them.

        The problem is that the voters eventually figure out you don’t actually mean to deliver on your promises, and stop believing anything you say. And start looking for somebody else who will actually try to win. That’s how Trump beat a whole field of ordinary Republicans: Nobody trusted the ordinary Republicans to actually try to deliver on anything they were promising.

        1. The Republicans repealed the individual mandate. Don’t you remember how your life magically improved when it was repealed? You never had to worry about signing up for Kenyacare and taking “free” vitamins that turn Americans into homosexuals?? And don’t get me started on the Death Panels…

  12. In most milieus, changing your mind after writing or thinking on a topic is considered a sign of intellectual integrity.

    1. In the year everyone was thinking about the outcome in NFIB, I ended up coming to the same conclusion about the mandate that Roberts apparently only adopted from political expediency. Although I still don’t think his reasoning on why the Tax Injunction Act didn’t apply is entirely convincing.

    2. “And it is . . . except when you change your mind in a way I oppose.”

      Said every extremist ever.

    3. If you’ve actually got a valid reason for changing your mind, yes. Not if the reason is stupid.

      1. And since we can’t know, might as well assume social blackmail!

        1. If you squint just right, you can see the conspiracy at work. Everywhere.

  13. I think the Court has become too political, a symptom of the unchecked power that Congress and the President have vested in the institution.

    I think if the Chief Justice is relying on evidence not in the record then he should be impeached. The purpose of all the rules we impose on parties in the justice system is to provide an even playing field. Judges – especially the Chief Justice – ignoring the rules casts doubt on the entire system.

    1. “a symptom of the unchecked power that Congress and the President have vested in the institution.”

      That pesky Constitution confers upon them the supreme Judicial Power. How dare they use it!

      1. Where in the Constitution does it confer upon the Supreme Court the right to review and invalidate laws?
        It’s not in my copy of Article III; perhaps you’d be willing to lend me yours where it does appear?

        1. It’s a necessary component of having the power to resolve cases and controversies arising under the laws of the United States and having the US Constitution be the supreme law of the land. If a law passed by Congress is in opposition to the Constitution then the Supreme Court couldn’t apply it to the case in front of them. As part of their opinion they would have to say it violates the constitution. If they couldn’t do this, then the Constitution would be a nullity. As Chief Justice Marshall pointed out in Marbury, if Congress passed an ex post facto law, a court couldn’t apply it because it violates the constitution and would have to say that is is invalid.

          Now I suppose you could say that the the decisions of courts only apply to the parties in front of them, but as the drafters knew, we live in a common law system where the lower courts follow the decisions of the higher courts and the highest court binds itself to its own precedent. So you could say the Supreme Court has no authority or power to “declare” a law invalid, but once the highest court has decided it violates the Constitution in one case, the same result will occur in every other case for the foreseeable future and so the law is functionally invalid, at least as far as the judicial branch is concerned.

          I suppose Congress and the executive could simply ignore continuous court orders reaching the same conclusion and continue to behave as if the law is valid.

          Or they could just never go to court. Congress could make whatever laws it wants, and the executive could just enforce the ones it chooses to enforce (or make its own) by throwing people into prisons until they decide to let them out or not. Or just kill whoever doesn’t comply and take their money.

          1. “Congress could make whatever laws it wants, and the executive could just enforce the ones it chooses to enforce (or make its own) by throwing people into prisons until they decide to let them out or not. Or just kill whoever doesn’t comply and take their money.”

            So…something like the situation we have now?

          2. As it happens, I agree that it’s a job someone needs to do – and the Supreme Court is just as good a choice as some special “Constitution Court” or “Legal Review Commission” or whatever.

            It’s just that it isn’t actually in the Constitution.

            1. I mean, I just don’t understand what you think the Court should do if it gets a case and the relevant statute violates the Constitution.

            2. “It’s just that it isn’t actually in the Constitution.”

              Except that it is. The “Judicial Power” of the United States to be vested in one supreme court. Right there in Article III, Section 1.

          3. I agree with everything you said above, but I still think the statutory review power that the Court exercises today is more expansive than the power you described above. How does any of the above justify the practice of using severability analysis to strike down an entire statute, based on one unconstitutional section? For example, imagine a statute, statute X, containing two clauses; where section 1 is unconstitutional, section 2 is constitutional, but it is obvious and widely acknowledged that Congress would not have passed statute X with only section 2.

            If section 2 is logically, or legally dependent on section 1, then the Court’s obligation to not apply section 1 to the case before it, would logically prevent the Court from applying section 2. Consider statute X1, where section 1 sets up some new federal agency (ABC) with an unconstitutional structure. Section 2 then requires all companies engaging in a certain form of interstate commerce to annually file records with the ABC, accurately describing certain details about that interstate commerce. Imagine section 2 also empowers some other federal agency (XYZ) to investigate whether the information contained in a company’s annual report is accurate, and to levy fines against companies that it determines made false reports to the ABC. Assume that there is some good reason for this distribution of powers and that XYZ’s determinations are subject to review in federal court; not some agency’s administrative court. In this case, it follows logically that if ABC has an unconstitutional structure, then a company can’t be fined for not submitting documents to an agency that is not allowed to exist.

            Now consider statute X2, which is similar to the ACA, but different enough for me to make my point. Section 1 requires that all Americans purchase health insurance, subject to criminal penalties and fines. Section 2 prohibits insurance companies that sells any policies across state lines from refusing to sell a policy to someone in another state, based on that person having a pre-existing condition. In this hypothetical, section 1 is clearly unconstitutional, and cannot be construed as a tax, and section 2 is constitutional because it only affects interstate commerce. Remember, also, that it is obvious and widely acknowledged that statute X2 would not have been passed with just clause 2 alone. The Court could refuse to apply section 1 to any cases before it, but apply section 2 to all cases it reviews. But the Supreme Court will often refuse to apply section 2 solely because it cannot apply section 1. How does the Court’s judicial power justify that?

      2. I think reasonable people can disagree about what the extent of the Court’s power should be.

  14. “To avoid that outcome, Justice Alito bit the bullet and did something he had never done before: join four liberal Justices.”

    Heh. Cool parody of Hannity/Limbaugh/Breitbart. I did not know fan fiction was a thing here at the Volokh Conspiracy.

  15. He began to believe that Ross’ rationale for the citizenship question had been invented, and that, despite the deference he would normally give an executive branch official, Ross’ claim had to matter in the court’s final judgment

    I heartily encourage justices to suss out the real reasons behing laws and reject them if they are unconstitutional or self-serving and to do away with rational basis.

  16. This seems closely related to the current series of posts about the mischief rule.

    It seems wrong to me that courts are allowed to consider the motive behind a president’s action, but not the motive behind a legislature’s action.

    1. The President is one guy, so there’s one guy’s motive behind whatever he (or someday, she) chooses to do. But there’s 538 minds behind what the Congress chooses to do.

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