Thursday, June 14, 2007

Supreme Court Leaks?

So the Court didn't decide the voluntary integration cases today. The next date opinions come down is Monday, June 18. Perhaps then.

Meanwhile, over at Scotusblog, Tom Goldstein has a very interesting post on how conservative a Term this is shaping up to be. Tom thinks that when all is said and done, Justice Kennedy will have broken right more often and in much more significant cases than he has broken left. That may be right, but meanwhile, I'd like to call attention to an interesting line in Tom's post. Discussing the voluntary integration cases, he states: "The consensus is that the Chief Justice is writing an opinion invalidating the school assignment programs."

The consensus among whom? And how do they know? I highly doubt that Chief Justice Roberts himself has whispered this fact to the press, which leaves two possibilities: 1) Court-watchers have spun this theory from bits and pieces, such as the number of opinions the Chief has authored thus far, the questions asked at oral argument, and icy stares among the Justices. Such kremlinology is fun but highly speculative. That leaves possibility 2) A law clerk or administrative staff member is leaking. This would be an extraordinary breach of Court rules and etiquette. At least as far as I'm aware, in the past, when clerks and others have given tidbits to the press, they have waited until after the relevant case came down, and even then they do so anonymously because this is a clear violation of their obligation of confidentiality.

Accordingly, I'm going with theory number 1, which has the virtue of making it possible to think that the consensus is wrong, and thus that there's still a chance that the Court won't overrule Brown v. Board. (See explanation here.)