Pettiness At SCOTUS After The Health Care Decision?

This analysis and insight from Jan Crawford is some of the best that I have seen on the recent SCOTUS decision on the health care law.

Eons ago, I did a wonderful book chat with Jan about her well-written Supreme Court tome, Supreme Conflict.

It is worth a read again, for folks trying to parse the current SCOTUS health care decision (link found via the wonderful folks at SCOTUSblog) in contrast to Jan's recent health care law article, if only for her behind-the-scenes glimpses culled from the papers and notes of former justices and interviews with sitting and retired justices as well as staffers that proved surprisingly candid and full of intrigue on closed door back and forths.

One of the key things that I came away with after having read the book is how much stock Justice Anthony Kennedy puts in being considered "one of the cool kids" on some level, and how he likes being the justice who gets courted for his super-important, primo vote in a close case. 

Even more interesting, how much more important it is to Justice Kennedy that he is thought of this way by folks outside the rare air of the Court and upper levels of the judicial system itself, and that his judicial legacy is a prime consideration for both him, as a justice and historical figure, but also for a number of his clerks who jealously guard his legacy even after they no longer work for him -- as their legal career trajectory is tied in ways to his importance within the legal community.  This has always been the case for federal clerks at the Court, although some justices cultivate that mindset more than others and for different reasons. 

The ones who engender that loyalty because they are fantastic bosses and thoughtful, challenging jurists have always been the ones that interested me most -- Justices Stevens and Marshall spring to the fore of my mind here, because both had and still have incredibly loyal former clerks who loved their bosses as much as human beings as they did as judicial scholars.

The ones who demand fealty and petty enforcement, though?  Those are the ones to watch closely, especially in an after-decision public relations knife fight.

This passage, from Jan's current article, is a key one in that regard:

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold.

"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this."

That bit was clearly culled from someone close to the court.  I have to wonder if it was someone on Kennedy's staff, or someone on Roberts' staff trying to paint Kennedy as an irritant, it's so hard to tell here.  Or is it some other justice or staffer from one camp or the other trying to curry favor and/or put someone else's nose out of joint at the same time?  Or all of the above?

Shakespearean in its petty scope and "juvenile behavior by adults who should behave better in the national interest," isn't it? 

Then, add that to this petulant little nugget:

The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.

That bit certainly sounds like it is coming from someone on Team Roberts, doesn't it? 

As I said way, way back during my book chat post with Jan, personalities and positions on the Court are fluid, not static.  As the individual justices shift and shuffle their own analytical preferences over time, the friction that arises from these shifts can cause irreparable rifts in and among former alliances.

And when that happens?  It is the behind-the-scenes petty nastiness, especially stemming from snide comments passed along via chatty clerks from one justice to another, intentionally on the sly, that can sometimes have a lasting impact on the Court's decisions via some very cutting and long-nursed grudge effects as the backstage drama unfolds. (Read Jan's discussion of that between Justices Brennan and O'Connor in Supreme Conflict if you doubt it.)

This refusal of the conservative justices to join in the parts of the Roberts opinion on which they completely agreed reeks of junior high clique enforcement at the highest levels of SCOTUS, doesn't it?

I have to wonder how the Chief Justice will now deal with its aftermath behind the scenes.   And whether this little glimpse of petty sniping in public means there will be a lot more of this to come?  I cannot imagine that Justice Roberts, who tends to be incredibly private and jealously guards the Court's overall reputation, is pleased with all of this airing out in public. 

So I do wonder where this all came from, for what purpose(s), and whether any further public airing of grievances will be squelched post haste.

Jan's sourcing within the ranks of current and former SCOTUS clerks, justices, court watchers and litigants really is unparallelled in modern legal reporting.  Her Southern charm tends to melt the more frigid DC insularity that surrounds the Court, and she always seems to get some delicious glimpses behind the robes that others would gloss over.

As long-time readers know, the devil really is in the details and the footnotes when it comes to Court parsing.  And these little peeks at the sniping  raise all sorts of questions about how deep and wide a rift may be in terms of ego between Chief Justice Roberts and Justice Kennedy -- and how many of the other justices are helping to add fuel to the various potential fires.

Part of me is wondering whether the more pointed and petulant leaks in her article aren't part of Roberts' publicly crafted aftermath response. 

If they are not, and they come from Justice Kennedy's side of the rift?  They certainly do make the conservative judicial cabal look incredibly petty, vindictive and spiteful, which is not exactly the intellectual image you want to project as a supposedly mature, thinking adult.  Not a good choice for long-term image and legacy management, I must say.

Then again, behind the scenes at SCOTUS is and has always been deliciously Shakespearean in its intrigue.  The justices are, after all, very much as human as the rest of us, regardless of their storied pedigrees.  And it is their very human foibles that make their evolution on the bench all the more interesting over the long haul.

I've also been wondering whether the quasi-epileptic seizure that Chief Justice Roberts had a few years ago played into his decision making on this.  As a fellow pre-existing condition person, I'd like to think that this very human question mark at least gave him a little pause given how it could impact him and his own family were he not a lifetime governmental appointee with  an excellent benefits package.

Jan's little peek behind the robes was just too intriguing not to share.  Thanks, Jan, for the great reporting!

(Photo of SCOTUS via justinDC.)