Tuesday, July 3, 2012


Ah, leaks from the Supreme Court. And more leaks from the Supreme Court.

Since I've been blogging Watergate 40 years on, I have the strategic use of leaks on my mind quite a bit these days. Where we are right now (that is, two weeks out from the arrests of the Watergate burglars) involves, among other things, the FBI leaking things to the press because acting FBI Director Pat Gray is attempting to stifle the investigation.

The larger point is that leaking is and has always been a key tool in political battles among elites, and anyone reading or watching news reports should at all times be aware that reporters frequently get stories from sources with agendas. That doesn't mean that the sources are peddling lies! For one thing, a reporter who gets burned by a source that way isn't likely to trust that source in the future. For another, a good reporter will confirm the basic facts of leaks or else not push forward with them.

But something can avoid any significant misstatement of fact and still tell only some of the story, and leak-based stories are particularly likely to do so, especially in cases such as national security (or, for that matter, the Supreme Court) in which everyone else might be severely constrained from telling the rest of the story on the record. And of course it's also possible for a source to leak something that's believed by the source and others to be true, but is not actually true.

I'd also distinguish between those leaks intended for general spin and those employed as part of bureaucratic or other elite battles. And that's not all! The current SCOTUS leaks may simply be sour grapes on the part of the losing Court faction, not really intended to accomplish anything but to make the Chief Justice (presumably) look bad, but not to influence him to do anything different. And then there's the possibility of leaks that are intended to win over a beat reporter who might be inclined to give favorable coverage in the future to someone who expects a continued relationship with the reporter.

So what do we make of this series of leaks? I have no idea. What I can say, however, is that they should be read with the possible motives of both the leakers and the press in mind.


  1. Great points about leaks. If you look back on "what the heck happened" books about the 2008 race like Game Change or some of the ones that have come out about Obama's first term you see a lot of this kind of stuff. I remember this type of thread being directed at Patti Solis Doyle with all sorts of "errors" and other stuff being attributed to her used to show why Hillary lost. The stories certainly could have been true, like claims she derogatorily referred to the rest of the senior campaign staff as simply "the white boys" (presumably to say they weren't worldly enough or something), but these quotes/stories certainly could have been pay back from disgruntled staff or something else. You can also see it in a lot of the stuff that surfaced about Palin, not knowing that the Prime Minister not the Queen is in charge of running Britain's foreign policy for example. Some of that stuff might have been true but I'm sure a lot of it was payback by angry staff members and people wanting to dodge any allocation of blame for the screw ups. I would caution people to remember this before they look for "the truth" in books like "The Escape Artists" or any of the other books about Obama that have come out and will come out in the future. Not that they are wrong, but you are often getting just a small part of a much larger picture.

    If you look at a lot of the reporting emerging about "Fast and Furious" you see a lot of it had to do with inter-agency turf wars in the ATF as opposed to some fiendish conspiracy by the Obama White House.

  2. I understand why reporters report leaks, especially in situations like this Supreme Court stuff. Leaks are all the more powerful when the people who have the first hand information aren't allowed to talk to the press. What really disappoints me is how completely naive reporters and pundits are in simply not questioning the motives for leaking information to the press; motives which anyone with a remotely critical mind can decipher.

    Here, the Right needs to be able to explain Roberts' decision to deliver them such a stinging defeat in the health care case. Forget the conservative media machine's nonsense, losing that case was a real blow for them, and is another problem for Mitt Romney's already God-awful presidential campaign. So the Right needs to explain what Roberts did to their people. They need to tell their people that Roberts is still on their side and that they don't need to start freaking out at the Rebublican Party for appointing a softie to the Supreme Court. So they come up with these stories about how he switched his vote at the last minute, that he actually wrote the dissent, that he's actually shrewdly paving the way for a a series of future right-wing decisions, blah, blah, blah. There's no way to know if this stuff is true. Personally, I think it sounds like total crap.

    My educated guess on this stuff is that Roberts, Kennedy, and many other conservative legal scholars knew that the Court COULD NOT strike this law down without fundamentally altering the political architecture of the United States. The ACA probably represents the outer limits of the U.S. federal government's ability to tackle a complex but critical policy issue through the democratic policy-making process as it was described in the Constitution with Congress writing a law and the President signing what Congress write. For the Court to strike it down would have changed the Federal government for a long time. It would have put the Court in the business of having the final say on almost any controverial public policy issue including one like health care distribution that has not typically been in the purview of the courts.

    So I think Roberts took the fall. If it had been Kennedy, the Right would have flipped out on the Republican Party, but Roberts can do it and keep the troops from revolting even if it depresses them.

    Anyhow, that's just my theory. All this leaking is an effort to explain to the Right the Roberts is still with them. But who knows...

    It's depressing how naive and silly many political reporters are in this country.

  3. Is there actually any evidence for the idea that Anthony Kennedy has the slightest shred of concern for the average citizen, or for the overall health of the Republic?

    The most probable alternative theory I have heard on Justice Kennedy is that he is highly concerned with the intellectual/legal reputation of Anthony Kennedy. Yet he tore that down, rather than building something with it, by joining with Scalia, Thomas and Alito in one of the most political dissents in recent memory, instead of actually writing something of his own with a dash of intellectual heft to it.


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