I really can't get over this
Jul. 3rd, 2012 04:21 am![[personal profile]](http://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
giandujakissSo now all the non-bloggy news sources have picked up on the "Did Roberts switch his vote" story, and conservative anger over it. You can read about it here and here and here and here, for starters. And Paul Campos, who blogs at LGM, reports on MSNBC that he has his own source - presumably someone in the liberal Chambers though he doesn't say so explicitly - who disputes the CBS report and claims that in fact, the joint dissent was originally written as a majority opinion by Roberts himself and was abandoned by him. (Yes, I am still skeptical of that, but that's of lesser importance).
Just to clarify - as most of these stories agree, it is not uncommon for Justices to change votes, and sometimes to flip the Court in the process. The news stories give the example of Planned Parenthood v. Casey, but there are plenty of others. Usually, you can figure it out very simply - the Court has a loose system for allocating opinions evenly among the Justices, and a flip breaks the pattern. Or, occasionally, majority opinions that were once dissents might still use "I" instead of "we" when describing the reasoning.
The part that has everyone up in arms - well, conservatives may be up in arms just about the idea of a vote switch, but the part that they're claiming is the problem - is the part of the CBS story suggesting that Roberts didn't switch his vote because he reevaluated the merits of the legal arguments, but because he bowed to political pressure.
That part of the story, it must be emphasized, pretty clearly came from within the Chambers of the four dissenters - I am reasonably confident that if you asked someone in Roberts's Chambers, or the remaining four, you'd get a different explanation for the shift.
But that assumes they'd talk in the first place. Because the jaw-dropping part here is that these leaks are happening at all, and that we're seeing this kind of coverage of the Court's deliberations, just moments after a decision came down. This is exactly the kind of coverage that delegitimizes the Court - and, from the leakers' perspective, was likely intended to do so - which is why it hasn't happened before. In the words of Dahlia Lithwick writing with Barry Friedman:
(and not for nothing, but doesn't Roberts look eerily like John de Lancie in that Slate picture?)
Just to clarify - as most of these stories agree, it is not uncommon for Justices to change votes, and sometimes to flip the Court in the process. The news stories give the example of Planned Parenthood v. Casey, but there are plenty of others. Usually, you can figure it out very simply - the Court has a loose system for allocating opinions evenly among the Justices, and a flip breaks the pattern. Or, occasionally, majority opinions that were once dissents might still use "I" instead of "we" when describing the reasoning.
The part that has everyone up in arms - well, conservatives may be up in arms just about the idea of a vote switch, but the part that they're claiming is the problem - is the part of the CBS story suggesting that Roberts didn't switch his vote because he reevaluated the merits of the legal arguments, but because he bowed to political pressure.
That part of the story, it must be emphasized, pretty clearly came from within the Chambers of the four dissenters - I am reasonably confident that if you asked someone in Roberts's Chambers, or the remaining four, you'd get a different explanation for the shift.
But that assumes they'd talk in the first place. Because the jaw-dropping part here is that these leaks are happening at all, and that we're seeing this kind of coverage of the Court's deliberations, just moments after a decision came down. This is exactly the kind of coverage that delegitimizes the Court - and, from the leakers' perspective, was likely intended to do so - which is why it hasn't happened before. In the words of Dahlia Lithwick writing with Barry Friedman:
Given the importance of this case it is difficult to believe [the leak] was just an accident. Yet, a high-level leak on a decision of this magnitude this soon is unprecedented. And, frankly it is rather nauseating to anyone who worries about preserving the integrity of the court.It's really an incredible institutional breakdown.
On the high court, there’s politics and then there’s politicization. There’s a difference between law and politics coming together on the court, and the possibility that someone is working from within the institution itself to further political ends. Or personal pique. Or whatever the heck was behind this apparent leak. The court has always been in politics and has always been politicized, but has remained pretty leak proof precisely because the justices understand the devastating effect this kind of politics will have on the institution.
(and not for nothing, but doesn't Roberts look eerily like John de Lancie in that Slate picture?)