Over at Salon.com, Lawprof Paul Campos writes:
I am told by a source within the Court with direct knowledge of the drafting process. . . that “most of the material in the first three quarters of the joint dissent was drafted in Chief Justice Roberts’ chambers in April and May.” Only the last portion of what eventually became the joint dissent was drafted without any participation by the Chief Justice.
This source insists that the claim that the joint dissent was drafted from scratch in June is flatly untrue. Furthermore, the source characterizes claims by Crawford’s sources that “the fact that the joint dissent doesn’t mention [sic] Roberts’ majority . . . was a signal the conservatives no longer wished to engage in debate with him” as “pure propagandistic spin,” meant to explain away the awkward fact that while the first 46 pages of the joint dissent never even mention Roberts’ opinion for the Court (this is surely the first time in the Court’s history that a dissent has gone on for 13,000 words before getting around to mentioning that it is, in fact, dissenting), the last 19 pages do so repeatedly.
I guess it’s only a matter of time before Jan Crawford runs a story saying that her source insists that Campos’s source is a “liar liar [with his] pants on fire.” Pretty soon those of us who haven’t received leaks are going to feel left out.
UPDATE: Here’s another. John Fund at the National Review has a leaker, too – perhaps the same as person that leaked to the National Review’s Ramesh Ponnuru, but who knows:
I’ve learned from my own sources that after voting to invalidate the mandate, the chief did express some skepticism about joining the four conservatives in throwing out the whole law. At the justices’ conference, there was discussion about accepting the Obama administration’s argument, which was that, if the individual mandate was removed, the provisions governing community rating and guaranteed issue of insurance would have to go too but that the rest of the law might stand. The chief justice was equivocal, though, in his views on that point.
Any other leaks so far today, or is that it?
ANOTHER UPDATE: Over at Balkinization, Mark Tushnet has a very interesting post that includes a report on the rumors he heard after the argument, specifically sourced to a law clerk:
Within a couple of weeks of the arguments, I heard a rumor, sourced to a law clerk, that the Court had voted to strike the ACA down. The route to me had some credibility, but one could also raise some questions about the interests lying behind the rumor’s circulation (interests not in the litigation but in establishing that the intermediary was a person who had inside sources). . . . Several weeks later I heard that a Washington law firm — I forget which — was saying that the Medicaid expansion was going to [be] invalidated.