Column: Harmful Impact From 'Deep Throats' at High Court

Recent leaks about Chief Justice John Roberts switching sides, voting to uphold the central provision of the Affordable Care Act, continue to alarm some court observers.

In the (Fort Worth, Texas) Star-Telegram, Linda Campbell wrote a column entitled, “The danger of Supreme Court deep throats.” She pointed to a potentially harmful impact:

“Maybe the loose lips have belonged to clerks, not justices themselves. But I wonder if the leakers have considered this: What would be the point of lifetime appointments to insulate justices from the political winds if they’re going to act like the rest of D.C.’s deep throats?”

In the New York Times Opinionator blog, veteran Supreme Court observer Linda Greenhouse examined the evolution of Justice Roberts’s thinking.  She suggested clues may emerge from scholars’ analysis that help explain the leakers’ response, which Greenhouse sees as attempting to “burn down” the Supreme Court:

“A Harvard law student, Joel Alicea, in a smart post on the conservative Web site The Public Discourse, wrote that the health care decision revealed ‘a clash between two visions of judicial restraint and two eras of the conservative legal movement.’ If Chief Justice Roberts, nearly a generation younger than Justices [Antonin] Scalia and [Anthony] Kennedy, in fact represents the old form of legal conservatism, in which the judicial role is to salvage statutes if possible rather than eviscerate them in the service of a bigger agenda, that’s a fascinating and highly consequential development.

“And it may be just such a fear that explains the anger and angst, the willingness of the leakers — as opposed to disappointed conservatives of an earlier era — to burn the court down in order to delegitimize one whom they happily claimed as their own only weeks ago.”

Meanwhile Peter Scheer, executive director of the First Amendment Coalition, took a different tack about the court’s legitimacy when he advocated in Huffington Post for TV cameras in the nation’s top courtroom:

“Cameras in the Supreme Court … would show a competition of neutral principles, with judges searching for a high ground that reconciles their favored outcomes with prior precedents. Although politics, at least in the more contentious cases, is never far from the surface, the vocabulary of Supreme Court decision-making is all about rules of general applicability, which are inherently restraining.

“Once citizens in large numbers have a chance to view this process, they will disagree with this or that Supreme Court decision, but they are unlikely to view the outcomes as illegitimate. The more of the Supreme Court’s deliberations that the public is allowed to see, the more confidence the public will have in the Court’s legitimacy.”

In other commentary about the high court, Bennett Gershman, a law professor at Pace, wrote in Huffington Post, “Are These Judges Really Conservatives?” At National Review Online, Deroy Murdock had an essay entitled, “Roberts Rules Disorder.” A New York Times editorial about the federal Defense of Marriage Act was headlined, “Toward a Supreme Court Showdown.”

Politico had the following news article: “Biden whacks Scalia, Alito, Roberts.” A Huffington Post article reported, “Newt Gingrich: John Roberts’ Obamacare Ruling ‘Probably Healthy For The Country.'”

The leaks about Justice Roberts’s allegedly switching sides have not been confirmed. See Gavel Grab for background.

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