Writing of Justice Ginsberg's role in the health care decision, I wrote:
...we would need a bit more compelling evidence (which, God wot, we will never get, or perhaps not for another 50 years).Scrooge commented:
We'll get the evidence a soon as a current Supreme Court clerk gets tenure.Hoo boy, are we out of touch. Since then conscientious court-watchers have been treated to a whole smorgasbord of leaks and counter-leaks (cf. here, here, and especially here) about who did what, when, in the runup to the health care decision. Although strictly speaking, we were on the right track: the Amy Davidson story about Ginsberg's role appears at least on the surface to be outside speculation, not inside dope. More generally, Oren Kerr styles the epidemic of Supreme Court leakage as the work of "conservative clerks."
Kerr is pointing, if inadvertently to one of the most remarkable aspects of modern conservatism: its near-manic hostility to enduring institutional frameworks (Andrew Sullivan offers an admirable exegesis here). People may mock the court (I have) for its posture of marmoreal solemnity. But there is something to be said for an institution thst does not engage in name-calling and public excoration. Yes, yes, conservatives will howl that the left knows how to rip up settled relationships just as well as conservatives. That's true enough, although the history is complicated and hard to disentangle. But it's a feature of the post-Gingrich era, that a strain of modern conservatism finds it almost more fun to break up the furniture than to proceed in any more sedate and elegant manner.