Has there been a leak from the Supreme Court in Bostock?

Is Justice Gorsuch going to vote with Justice Kagan?

|The Volokh Conspiracy |

Bostock v. Clayton County was argued on October 11, 2019. This case considered whether Title VII prohibits discrimination on the basis of sexual orientation. Shortly after the case was argued, there was a flurry of writings. Advocates on both sides contended that textualism supported their position. And, in due time, interest in the case petered out. As usually happens, writers go on standby until a decision is announced at the end of June.

But that silence was interrupted. On November 19, National Review published an essay by Robbie George (Princeton). He explains that Justice Gorsuch's opinion in Masterpiece Cakeshop cuts against Justice Kagan's textualist argument. "But Gorsuch's rigorous logical analysis," George writes, "proved that Kagan's description stacked the deck."

Three days later, the Wall Street Journal published an unsigned editorial that sounded a similar theme. The subhead explained, "Kagan tries to lure Gorsuch and Roberts off the Scalia method." The editorial continues:

Justice Kavanaugh, Justice Gorsuch's generational peer, will also have a say in defining what textualism means in the years ahead. If Justice Gorsuch or the Chief Justice follow Justice Kagan in defining textualism down, we hope Justice Kavanaugh and the others will explain their errors.

When I saw both of these editorials, in short succession, I had immediate flashbacks to May 2012. In the span of 48 hours, the National Review and George Will wrote that Chief Justice Roberts should not buckle under the pressure and uphold the ACA. I discussed these incidents on pages 227-232 of Unprecedented. Here is an excerpt:

On May 24, the editors of the National Review continued the theme. Supporters of the ACA were "threatening dire consequences for the reputation of the Supreme Court and especially for Chief Justice John Roberts if he joins a majority of the justices to strike down the individual mandate." The editorial concluded, "We suspect that Chief Justice Roberts wants his legacy to consist of promoting fidelity to the rule of law, not a few months of liberal approbation followed by further blackmail attempts. He should call a strike, and give his would-be advisers the brush- off they deserve."

Finally, on May 25, 2012, under the headline "Liberals Put the Squeeze to Justice Roberts" in his syndicated column, George Will claimed that progressives were "waging an embarrassingly obvious campaign, hoping [Roberts] will buckle beneath the pressure of their disapproval and declare Obamacare constitutional. . . . They hope to secure it by causing Roberts to worry about his reputation and that of his institution." These "clumsy attempts to bend the chief justice," Will wrote, "are apt to reveal his spine of steel." [Jeff] Rosen speculated to me that Will's intent was to "switch Roberts back." One Supreme Court reporter told me that the motivation of Will's article was "obvious"— to "shore up their side," or at least "raise questions about the other side."

The message from the right was loud and clear: Chief Justice Roberts should not be intimidated by Obama, Leahy, Rosen, and others.

In Unprecedented, I observed that there were leaks from the Court during the deliberations.  These writings were offered in response to the leaks. I wrote:

However, conservatives were not reacting merely to Rosen's article. Our unpredictable and unprecedented journey took another sharp turn to the right. There were leaks from within the Court that directly influenced this response. Though Crawford's report was published on July 1, 2012, I've been told by those who heard the leaks that this information was known as early as May. Several in the Supreme Court press corps confirmed to me that they heard rumors about the chief justice's shifting position, but "nothing was firm enough for anyone to report on." It was speculative, but some on the right decided it wasn't worth risking it and sprang into action to shift the chief back. With the outcome of the most important case in decades on the line, something had to be done.

Soon after the message trickled from the Court that Roberts's vote was "in flux," a right-wing bat signal went out, with a clear message: we need to tell the chief justice to grow a backbone. George Will and others answered that call. Conservatives, who had been noticeably quiet about the outcome of the case after the conference, suddenly perked up in the home stretch, precisely when the war was being waged within the Court over the final vote. A Supreme Court reporter told me that in May "there seemed to be some sense in the conservative press that maybe this wasn't going to work out. It wasn't Kennedy to worry about. It was Roberts.

Has there been a leak in Bostick? Are conservatives trying to shore up Justice Gorsuch during the home stretch? The two pieces, published in short succession, with a similar message, remind me of the campaign waged in 2012.

Andy Koppelman offered a similar observation:

But within 72 hours, between November 19 and November 22, National Review and The Wall Street Journal published similar criticisms of Kagan, claiming that her textualism is counterfeit. The near-simultaneous attacks may be a coincidence, or they may mean that conservatives have learned something about what's happening in the Court's chambers—something that worries them. …

It is a remarkable coincidence that National Review and the Journal published these two critiques in quick succession. Perhaps some conservative justice indiscreetly complained to a friend that Kagan is winning. Let us hope.

I have no inside knowledge about the deliberations. These sorts of leaks, however titillating, are extremely harmful to the Court. They need to stop.

Disclosure: The Jewish Coalition for Religion Liberty, on whose board I serve, filed an amicus brief in this case.

NEXT: Brad Smith on Microsoft’s Journey from Hubris to Humility

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  1. If neil and the chief go with Kagan’s textual reasoning on the gay case, how do they split the transexual baby?

  2. I’ll just say three things:

    Though the timing of these pieces may look funny, they can easily be read as responses to the oral argument, where it was quite plain that at least a bare majority of the Court, including the Justice to whom these pieces seem addressed, thought plaintiffs’ textual arguments had considerable if perhaps not ultimately dispositive force, as everyone commented at the time. It may seem to their authors that voting may be fluid at this juncture, relatively early in the opinion-drafting process, and that this is a good time to write to the Court

    If these commentators really imagine their pieces will have some influence, I’m surprised at their hubris. There is nothing new in what they wrote. George’s piece is thoughtful and well-argued, but is really just a recycling of points made by, inter alia, Judge Sykes in Hively, and the defendants and SG in their briefs and at oral argument. Nor is the fact that this is what George (or WSJ) think new information; I don’t know if George was on a brief, but one of his co-authors of “What Is Marriage” (2012) filed one. His and WSJ’s views here are predictable and well-known.

    Your griping about Roberts occasionally changing his vote in the piece you link to, which is generally a signal feature of any good, honest judge (and something that practically all the Justices have done on occasion), is very silly. But I agree that it is unfortunate that people on and around the Court attempt to embarrass Roberts by leaking his judicious vote switches so that people like you can then misguidedly lament them as signs of squishiness, spinelessness, and susceptibility to a latter-day Greenhouse effect.

    1. “If these commentators really imagine their pieces will have some influence, I’m surprised at their hubris.”

      I’m not. Not one bit.

      The Supreme Court is a forum where the vast, vast majority of communications directed at it have little effect on the outcome. That includes the vast, vast majority of amicus briefs, the vast, vast majority of oral arguments, plus all sorts of law review articles, op-ed pieces, and other communications.

      So why does all this occur? It occurs because there are people who are deeply invested in the outcome of these cases, on both sides, but with no standing to file merits briefs in the case (which are the communications that actually influence the decision in almost all cases). So they try anything they can.

      This “respond to leaks in the media” approach is simply the latest example of this. But it’s not really different in kind from all the others.

      I do think this is damaging to the Court. But, really, I also think the proliferation of amicus briefs is damaging to the Court too (as well as damaging to the clients who pay for them). As are the law review articles that are really amicus briefs (and they are damaging to legal scholarship as well). So as long as we are going to have all these ways that nonparties are spinning their wheels to try to influence the Court, why not have this one as well? Notice it didn’t change anything in Sibelius, and probably won’t here either.

  3. I too agree that it is unfortunate that people on and around the Court attempt to embarrass Roberts by leaking his squishy and spineless vote switches so that people like you can then misguidedly praise them as judicious.

    1. Vote switches are legal, and one of your mainline beliefs is that if it’s legal, it’s fair game; norms don’t matter these days.

      So quit yer bitchin’.

    2. Is it possible that, after reviewing the evidence and arguments, he changed his mind? Are people to whom briefs, argument, and conferences represent learning opportunities spineless?

      I would never suggest that if a Gorsuch or a Kavanaugh might think one of the positions taken by one of their colleagues might have some merit, this would represent any corruption or impropriety on their part. And this is so even when I disagree with the colleague’s position.

      1. I would never suggest that if a Gorsuch or a Kavanaugh might think one of the positions taken by one of their colleagues might have some merit, this would represent any corruption or impropriety on their part. And this is so even when I disagree with the colleague’s position.

        Yep. And this is one of the many ways that the sort of pop culture legal realism that the Court is nothing but politicians in robes is not only incorrect, but profoundly damaging.

        There’s a whole cottage industry of commentators, on both sides, who are now immediately gravitating to extra-judicial theories as to why vote switches and heterodox votes happen. “It must have been a deal! They got to him!” When the normal operation of a multi-judge court is that while most of the time, judges form an opinion and vote that way, they can sometimes be persuaded by oral argument, discussions with colleagues, formally reviewing a draft dissent, etc.

        1. Both sides?
          Not that I think it’s beyond the fringey left, but who do they see vote-switching, and why?
          The Roberts is blackmailed about his adopted kids is cute, but I’d like to see what the left comes up with.

          1. Joan Biskupic has created a cottage industry of allegations of court leaks on the left, supposedly proving “deals”.

  4. Never attribute to a leak — at least without evidence — what can be explained by informed speculation or Court Kremlinology.

  5. I think the basic flaw with Justice Kagan’s argument can be put very simply. Instead of the word “date,” substitute the word “hire.” That’s it. If you do this, you get exactly the same argument. Since the argument’s whole value, its whole force, is in been a purely textual argument unmoored from intent Or context, if the argument is the same in both, it ought to lead to the same result in both. If you shrink from taking the argument as far as it logically leads in the one case (I.e. to the exact opposite of what the law had previously been understood to prohibit), you ought to be willing to shrink from it in the other.

  6. How are leaks “harmful” to the Court? Please explain. This sounds like some theory that opposes the people’s right to petition judges.

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