Friday, June 29, 2012

The Switch of One

Gerard N. Magliocca

"A wise judge chooses, among plausible constitutional philosophies, one that will generally allow him to reach results he can believe in--a judge who does not to some extent tailor his judicial philosophy to his beliefs inevitably becomes badly frustrated and angry. . . A judge who does not decide some cases, from time to time, differently from the way he would wish, because the philosophy he has adopted requires it, is not a judge.  But a judge who refuses ever to stray from his judicial philosophy, and be subject to criticism for doing so, no matter how important the issue involved, is a fool."

Justice Hugo Black


What then is a judge who quails from implementing his judicial philosophy when he is subject to criticism before the fact?

A coward?

Is our yodeler focusing upon a particular judge but is too much of a coward to identify the judge?

My favorite comment about Justice Black comes from his son, Hugo Black, Jr., who reportedly said that his father, as a young man, put on white robes and scared hell out of black people. As an older man, he put on black robes and scared the hell out of white people.

Linda Greenhouse's Opinionator column at the NYTimes website "A Justice in Chief" (6/28/12) includes this interesting paragraph:

"This is where the seams of the chief justice’s opinion showed, leading to some speculation that the abrupt analytical pivot was actually a last-minute vote switch. For the theory that Chief Justice Roberts pulled back late in the process from declaring the mandate unconstitutional, the best evidence might be external to the opinion, rather than inside it. Around Memorial Day, a number of conservative columnists and bloggers suddenly began accusing the 'liberal media' of putting 'the squeeze to Justice Roberts,' as George Will expressed the thought in his Washington Post column. 'They are waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional,' Mr. Will wrote. Although the court has been famously leakproof, Mr. Will and some of the others are well connected at the court, and I wondered at the time whether they had picked up signals that the chief justice, thought reliable after the oral argument two months earlier, was now wavering, and whether their message was really intended for him."

So perhaps with the benefit of hindsight, there may have been some leakage from the Court (perhaps via pillow talk?) passed on to conservative pundits who may be well connected at the Court of "The Switch of One."

Now, of course, George Will and Chuck Krauthammer, post-The Switch of One, are claiming that conservative causes benefit therefrom. Perhaps they enjoy sour lemonade.

Mark Field and others at Volokh Conspiracy (MF in comments to a post) have reasonably argued that there was "switch in time" moment here. Reading the dissent, it does come off that way if you look at some of the language. I find this curious, since it shouldn't have taken too long to edit it so that it didn't come off not only as hackish but sloppily written.


Maybe the dissent wanted to drop a dime on the CJ by leaving in clues of his flip flop.

Perhaps El Nino dropped the dime on the CJ on Tuesday with his rant dissent in the AZ immigration case. I'm assuming, of course, that at that time El Nino knew the CJ's position on ACA. But maybe he didn't?

We may get more follow up commentary from Walter Dellinger who said this at Slate on June 25th on the Az decision:

"And that is why Justice Scalia is so upset. (Unless, Dahlia, he is being anticipatorily mad about what may happen on Thursday. You think?) I want to address Scalia’s amazing dissent in a future posting. And to explore whether Chief Justice Roberts changed his vote and joined with Kennedy, Ginsburg, Breyer and Sotomayor in order to avoid a 4-4 tie. (It would not be the first time a chief justice had done that.) "

The role of George Will's surreptitious assistance in Ronald Reagan's debate with Pres. Carter suggests his closeness to GOP power behind the scenes. What was Will's real basis for stating, in effect, that CJ Roberts was being pressured by proponents of ACA (like Jack Balkin?) to support it? Was it based upon public information or inside, wink-wink, information? Maybe there should be an independent investigation of possible SCOTUS leakage.

Our yodeler's question "A coward?" suggests he's still a mentee of Glen Beck. Maybe our yodeler's next comment-photo will feature him wearing a Beck product to demonstrate his "courage."

Here's a link to Jan Crawford's "Roberts switched views to uphold health care law" posted 7/1/12:;contentBody

Jan, who has become quite a conservative partisan over the past couple of years, attributes her story " ... to two sources with specific knowledge of the deliberations." She does not reveal her sources, but some suggest they might have been justices. As I suggested in an earlier comment, "Maybe there should be an independent investigation of possible SCOTUS leakage." What would be most interesting would be when Jan received info from her sources. Did George Will have the same sources? Were there perhaps pillow talk sources? Is it time for another Robing Room segment?

Joe, which post at Volokh are you referring to? Thx.


What was Will's real basis for stating, in effect, that CJ Roberts was being pressured by proponents of ACA (like Jack Balkin?) to support it? Was it based upon public information or inside, wink-wink, information?

My you are becoming quite the conspiracy theorist. Given the Dems and the left legal establishment were putting a full court press through the Dem media on Roberts and Kennedy, Will would have had to be blind to miss it living in DC.

Now that he has caved to their will, Roberts is now being lauded as a judicial statesman by the same folks who called him a political hack and ideological radical just a few dats before.

This is what progressives mean by judicial independence.

Notice that our yodeler seems reluctant to address his question: "A coward?" Is he riding his mentor Glen Beck's coattails? Jan Crawford has the "courage" to reference, without of course identifying, "two sources with specific knowledge" of the apparent switch. George Will like our yodeler just shoots from the hip; maybe he has sources, maybe he doesn't.

Who's the coward? I say it's our yodeler. Does our yodeler care to identify " ... the left legal establishment ... putting a full court press through the Dem media on Roberts and Kennedy"? Perhaps the VC lacks influence with the conservative 5? I think the smoke and second hand DUI fumes are clouding our yodeler's mind.

Has Roberts really caved to progressives' will? Ask Randy Barnett, or better yet, read his WaPo OpEd following the ACA decision. Ask both Chuck Krauthammer and George Will each of whom in tandem columns indicate that conservatives actually got their way. Did our yodeler watch George Will's fandango on "This Week with Gorgeous George"?

We need an independent investigation to salvage the Court's reputation what with this Etna explosion.

What if there were an official investigation of Court leaks and Jan Crawford and George Will (among others) were called to address sources and they declined to admit/reveal sources on the grounds of a reporter's privilege? How might courts rule? Might there have to be an "independent" set of judges appointed? Might Justices on SCOTUS have to recuse themselves, if the matter reach them? Fat chance. It's time for a revisit to DeNovo for my comment on Justice Scalia and Dick Cheney:


In that duck blind
Lady Justice unveils
Her traditional blindfold
For these bonding males:
Scalia and Cheney,
Shotguns at attack,
Taking aim at Justice,

Posted [originally] by: Shag from Brookline at March 23, 2004 07:28 AM"

Justice Kennedy's father was a lobbyist so perhaps it was in the Justice's genes to lobby CJ Roberts as reported by Jan Crawford.

Let's add to the "Switch" discussion conservative Michael Savage's allegation that CJ Roberts was under the influence of drugs taken for seizures in making his (in)decision. Maybe SCOTUS Justices should be subjected to drug testing. Perhaps our yodeler is sandwiched between his mentor Glen Beck and soul-mate Michael Savage.

And let's anal-eyes Randy Barnett's WaPo OpEd patting himself on his own back for the acceptance, he thinks, by the Court of his commerce/necessary and proper clauses interpretations with Randy's comments at VC following Jan Crawford's "exposure" of the "Switch." Barnett had hope for the "Revenge of Raich" but blew smoke back in his own eyes.

Jan Crawford that Orin Kerr at Volokh Conspiracy notes has good relations with conservative justices (her book seems to be written in a positive fashion in that respect).

The Wikipedia page has links to various audio, including a discussion with Dahlia Lithwick.

I recall well Jan Crawford's many appearances on the Newshour reporting on Court decisions. Since leaving, Jan has definitely listed right.

If, as I suspect, Court leaks occurred well before last Thursday, why were those in the media dripped on reluctant to report on a timely basis? Was its journalistic ethics? Or was George Will's earlier column on CJ Roberts being pressured by the left based on a few drops - "SCOTUS water torturne"? If one were to follow "Deep Throat's" "follow the money," I'd bet on pillow talk sources. In any event, conservatives are taking out their switches to beat on CJ Roberts' alleged "Switch." Personally, I think Jack Balkin et alia brief on the tax/spend clauses trumped Barnett's attempt at "Revenge of Raich" (or Randy getting his joint out of joint).

Scalia releases transcripts of his bench statements at times (he did in the Arizona v. US case) to the press but they get it in return by promising not to release them.

Her sources probably got her to embargo her story as a condition. It also violates current norms to do it otherwise thus we got a few "wow" commenst about resisting leaks when it turns out that apparently there were leaks.

Is there info as to WHEN Jan Crawford got her story? Does CBS have a policy on providing a statement/reason for not identifying a source, similar, say, to the NYTimes? When did others - and WHO - at CBS get vetted on Jan's story? Did Jan get an exclusive? Maybe we'll hear more from other media personalities on what they knew and when they knew it.

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