The Supreme Court Is Leaking
At USA Today, Joan Biskupic has her third of a series of four articles on the inner workings of the Supreme Court. (Here are links to parts one and two.) Today’s article details ways in which Justice Kavanaugh attempted to persuade his colleagues to sidestep difficult issues such as abortion and the Trump tax returns:
Supreme Court Justice Brett Kavanaugh urged his colleagues in a series of private memos this spring to consider avoiding decisions in major disputes over abortion and Democratic subpoenas for President Donald Trump’s financial records, according to multiple sources familiar with the inner workings of the court.
In the abortion controversy, Kavanaugh wanted the justices to sidestep any ruling on the merits of a Louisiana law that could have closed abortion clinics in the state, CNN has learned. The case marked the first time in four years the justices were taking up the heated subject. Kavanaugh’s plan would have ensured the law — a credentialing mandate for doctors who perform abortions — would not go into immediate effect but also ensured that the justices would not have to put their own views on the line.
The same would have been true in the fight between Trump and the US House of Representatives. Kavanaugh’s idea — presented to the justices in an internal memo and conversations, sources said — would have had the high court avoid the subpoena fight over Trump financial documents, based on the judicial principle that courts should stay out of cases involving fundamentally political questions.
Although such insider views are nothing new — take Bob Woodward’s The Brethren and the far lesser book by Edward Lazarus as two examples I have read — these articles still raise in my mind the question: who is leaking? Ed Whelan asks the same question and has a surprising speculation as a possible answer:
This sort of flattery of the Chief would seem to focus attention on the liberal justices. We know that Justice Ginsburg has been indiscreet with Biskupic before—in an on-the-record interview -— and she has demonstrated in recent years a remarkable tendency to speak injudiciously on all sorts of matters, so she must surely be a prime suspect. But the level of detail provided Biskupic, as well as Biskupic’s own reference to “multiple sources,” makes me think that at least one of the other liberal justices might also have been a major source.
Suspicion in cases like this usually falls on law clerks. Whelan declares himself “skeptical, though, that any clerk would take the career-ending risk of leaking to Biskupic” — an odd observation, in my view, given how often they have leaked in the past. But it’s quite true that RBG has loose lips.
Something’s afoot. One would think John Roberts would want to get to the bottom of it. Or is he too pleased with how he is coming off in the articles to bother?
The court doesnt care about life issues, science, immigration law, due process, so why do their deliberations matter again.
Narciso (7404b5) — 7/29/2020 @ 8:54 amclerks could be leaking with Ginsberg’s approval. But of course, the main point is that the Liberals are out trying to achieve their agenda and the so-called conservatives like Roberts/Kavanaugh/Goresuch are either drama queens out for good publicity, or closet liberals/moderates trying to do nothing that is conservative. Of course, the social conservatives deserve this, because they have REFUSED even after Souter, to demand justices that are on record as opposing Roe vs. Wade If you were paying attention you would see that Goresuch clerked for a Democrat Justice and Kavanagh clerked for Kennedy and Roberts was a George HW bush appointment. I see some conservatives are finally waking up and demanding a more proactive approach, but its 20 years too late.
rcocean (2e1c02) — 7/29/2020 @ 9:08 amdouble impeachment
mg (8cbc69) — 7/29/2020 @ 9:18 amroberts/ginsburg/2020
Longtime lurker, not much for commenting generally. But, I did have the good fortune of working for Chief Justice Rehnquist many (many) moons ago, and can say that there are literally dozens of people who could be the leak. Even then there were three or four clerks in each judicial chamber, numerous support staff whose desk the memo would cross, the administrative assistant’s office, possibly staff counsel’s office and even the clerk’s office would have access if it was going to be discussed in Conference. So, it would be extremely difficult to narrow down the search without extensive, intrusive means (i.e., polygraphs) the possibility of which would likely be shut down pretty quickly by someone. We had some minor leaks while I was there, and it was handled with a sternly worded reminder to everyone about one’s duties and loyalty to the Court (which from that Chief was more than sufficient).
Bigdaddyjp7983 (c0eb94) — 7/29/2020 @ 9:27 amThat more than one person feels safe leaking is also the story, because it suggests they don’t fear the Chief will take action or they don’t care if he does. That could be either side.
DRJ (aede82) — 7/29/2020 @ 9:34 amThere isn’t enough support for that approach to work. Too many people don’t agree with the hard core social conservative position. In order to make progress in reducing access to abortion it helps for it to be done in away that’s complicated and hard to follow.
“Ban abortions in LA” is going to get a lot of resistance and not enough support.
“Only allow abortions when Dr has admitting privileges at a nearby hospital.” isn’t accessible to low info voters because you have to explain *why* that’s effectively a ban. It further complicates the conversation because instead of talking about abortion, you’re talking about how to safely perform a particular outpatient procedure that almost no one really likes.
But that kind of subtle incremental approach isn’t very satisfying if you also want to show dominance over people you dislike and through that dominance broad respect for your team. This is a bug and a feature. You don’t get the thrill of seeing Social Conservatives win. But the libs don’t get the motivation of having their team lose.
Time123 (306531) — 7/29/2020 @ 9:37 amusa today, repeated every rumor about kavanaugh, didn’t they, and did they correct about sandmann, rhetorical
narciso (7404b5) — 7/29/2020 @ 9:43 amYesterday, Josh Blackman at Volokh wrote on the first Biskupic article, which was focused on John Roberts. Blackman’s theme seemed to be that the leaks were so overwhelmingly favorable to Roberts, that Roberts himself may have enabled them. Doesn’t come right out and say that, but stops only a little bit short. Interesting reasoning and speculation.
Article is More Leaks From The Supreme Court, All Of Which Make Roberts Look Powerful
Purple Martin (34703c) — 7/29/2020 @ 9:55 am
No.
Dave (1bb933) — 7/29/2020 @ 9:57 amThe articles have been so flattering to Roberts that I assumed he (or someone close to him) was behind them.
They all read as beat sweeteners with enough added inside-baseball to attract legal readers.
john (cd2753) — 7/29/2020 @ 10:07 amgarbage paper, only worth cage lining
https://www.usatoday.com/story/news/2018/09/27/kavanaugh-hearing-everything-we-published-all-one-place/1442334002/
narciso (7404b5) — 7/29/2020 @ 10:17 amCalled that ish w.r.t. Kavanaugh…daughters and womens basketball to blame.
urbanleftbehind (08b3a1) — 7/29/2020 @ 10:35 amI’m wondering why the Supreme Court would decline to hear a case as egregious as this.
https://reason.com/2020/07/28/swat-team-blew-up-familys-home-charlotte-police-militarization-tear-gas-pepper-spray/
Maybe there will be a leak, but probably not.
Gawain's Ghost (b25cd1) — 7/29/2020 @ 11:02 amThis stuff worked on Kennedy. I do not get the same vibe from Roberts as Kennedy, but the ego is the ego.
I’d really love to hear more about your time clerking up there.
Dustin (4237e0) — 7/29/2020 @ 11:08 amI just did it for the basketball court, lol
Bigdaddyjp7983 (c0eb94) — 7/29/2020 @ 11:26 amThat is not “every rumor”.
It’s coverage of a public testimony in the US Senate.
There is no mention of Avenatti’s rubbish.
Dave (1bb933) — 7/29/2020 @ 11:32 amThere is no mention of Avenatti’s rubbish.
https://www.usatoday.com/story/news/2018/10/01/brett-kavanaugh-julie-swetnick-msnbc-interview/1442463002/
Google is hard.
beer ‘n pretzels (1e9784) — 7/29/2020 @ 11:40 amRoberts is the only honorable person left in Washington DC, so he wouldn’t be my first suspect.
Dave (1bb933) — 7/29/2020 @ 11:41 amDon’t be so sure Barfin’ Bart isn’t the source himself. Never forget: he likes beer.
Feed him a few and he may just talk your ears off.
DCSCA (797bc0) — 7/29/2020 @ 11:43 amNot a rumor, it’s testimony before the US Senate.
Dave (1bb933) — 7/29/2020 @ 11:44 amI think Mr. Whelan badly underestimates the activist bent of some of the law clerks. Sure it’s a prestigious position that they have worked to position themselves for, but one thing we have observed about Generation Z is that, first and foremost, activism carries a greater importance to them than ethical behavior, and second, they have been cultured to believe that they should not suffer any negative consequences from pushing their agenda, even if they do break the rules (see Barack Obama’s “right side of history” nonsense).
JVW (ee64e4) — 7/29/2020 @ 11:44 amJust curious – is there any legal basis for the secrecy of Supreme Court deliberations *after* a given case in question is decided?
Dave (1bb933) — 7/29/2020 @ 11:51 amNot a rumor, it’s testimony before the US Senate.
It was a MSDNC interview, which strayed from her testimony, if you cared to actually read the link.
You seem highly invested in media malfeasance.
beer ‘n pretzels (1e9784) — 7/29/2020 @ 11:51 am> One would think John Roberts would want to get to the bottom of it.
and do what? it’s not like he can actually punish the justices if they’re the ones leaking.
aphrael (f63619) — 7/29/2020 @ 12:18 pmThe interview aired, and was reported, after her accusations were discussed in Senate testimony.
Should they *not* have reported that the story she told a TV interviewer was different from her sworn statement/testimony?
Dave (1bb933) — 7/29/2020 @ 12:29 pmThe leak could be from a conservatively aligned person or persons, and with the need for long distant and electronic communication between the justices, there could be more people who know the facts.
don;t think the leaksa re favorable to Roberts at all.
It tends to show that Chief Justice Roberts is not just calling balls and strikes, but is being strategic. It could be he thinks he;s Chief Justice Hughes and is trying to prevent packing of the court, and also a situation where no justice could be confirmed. (kind of hopeless, the latter; if the president and the Senate are controlled by opposite parties, it’s likely.
Court packing, on the other hand, is not such a big danger, as, at this point, it would probably require about 60 Democratic Senators to do it, both because some Dem Senators wouldn’t be ready to go along, and because the chances of this becoming a political issue that could cause them to lose the majority would be too high even if they didn’t lose the House and the presidency also.
Chief Justice Roberts wants people to think there are no Obama judges and no Trump judges. No Bush judges and no Clint judges. He is not so much siding a little with the liberals as trying to stay away from politics and avoid siding for or against any politicians regardless of what the law really should state.
He wants respect for the court, and the leaker(s) maybe want this strategy of going about it, by being disingenuous, not to work.
Sammy Finkelman (fe6a9b) — 7/29/2020 @ 12:30 pm> it would probably require about 60 Democratic Senators to do it
if Ginsburg dies and Trump & McConnell push through a lame duck replacement, court packing is a done deal.
aphrael (f63619) — 7/29/2020 @ 12:45 pmShould they *not* have reported that the story she told a TV interviewer was different from her sworn statement/testimony?
Sure Dave, that’s why the article was headlined “Swetnick interview is at odds with her testimony”. Oh wait… they actually went with:
“’Mean drunk’ Kavanaugh was ‘handsy’ with girls, Julie Swetnick says in first televised interview”
Close! And they lead with:
“The third woman to accuse Supreme Court nominee Brett Kavanaugh of sexual misconduct dating to his teenage years described him as a “mean drunk” who pushed “girls against walls” during her first televised interview.”
Dave, at what point is sticking up for pathetic media rumor mongering just tooooooo conservative?
beer ‘n pretzels (04f282) — 7/29/2020 @ 12:57 pmThe Leaks make the D judges look good, and makes Roberts who’s more or less joined their side also look good. Why wouldn’t Ginsberg or Sotomayor want to reward Roberts with some leaks that make him look like the Mr. Super-justice bending everyone to his will and out-foxing Kavanaugh?
Another point, is that Ginsberg is 87 and ill with cancer. She can do what she wants, and there’s zero blowback for her. Also, Sotomayor is the most extreme leftist on the Court, and like many extremists, feels very little concern about Traditions or Institutional Loyalty. Her dissents are political statements and hew the left-wing party line on almost every issue. I have no doubt her or one of her clerks would have ZERO compunction in leaking stuff.
rcocean (2e1c02) — 7/29/2020 @ 1:38 pmIf Roberts wants people to respect the SCOTUS, he should have a long hard talk with himself. His obviously politically driven, judicial philosophy free, inconsistent, opinions this term have shown he’s a political hack and not a Justice driven by any Judicial philosophy. I especially liked his DACA opinion, whereby Obama could institute DACA by executive order based on nothing, but Trump had to jump through unspecified administrative hoops to rescind it. Its one of the most absurd opinions ever. And this from a Judge who stated he wanted to get the court out of legislating.
rcocean (2e1c02) — 7/29/2020 @ 1:44 pmThe article is a neutral and accurate account of the interview it describes.
I’m sorry you’re upset that they didn’t write the headline like OANN or Gateway Pundit would.
Dave (1bb933) — 7/29/2020 @ 1:56 pm27. aphrael (f63619) — 7/29/2020 @ 12:45 pm
For that and other reasons> Not too likely if Trump becomes a lame duck, unless the Republicans retain a majority of the Senate and not too likely even then.
And maybe even if done it could be not exactly court packing. Senator Bernie Sanders had an alternative to court packing that he thought would not have the Republicans, perhaps, a few years later, packing the court some more.
That would be changing the whole composition of the Supreme Court, so that cases would be heard by a rotating panel of federal judges.Sanders would rotate them off but you could say, add the Chief Judges of the courts of appeals and have cases heard by a random panel of 9 out of 20 or so.
Sammy Finkelman (fe6a9b) — 7/29/2020 @ 2:39 pmA scheme to add more justices to the Supreme Court has the foul odor of a banana republic. I’ve heard support for this idea from Democratic candidates for the presidential nomination, but not from Republican candidates. Was I just not paying sufficient attention, or is this a legitimate difference between the parties?
norcal (a5428a) — 7/29/2020 @ 3:49 pmCourt packing has been a Democrat fantasy since FDR.
Dave (1bb933) — 7/29/2020 @ 3:57 pm33. Court packing is not endorsed by all, or probably most, Democrats but it;s within the Overton window.
Sammy Finkelman (fe6a9b) — 7/29/2020 @ 4:06 pmIn the unthinkable event that a consensus could be formed, I think reforming the court could have benefits.
My toy proposal is that each newly elected or re-elected president can appoint one justice to replace, if the bench was full, the longest serving justice (who would, by virtue of being the longest serving, be finishing their four year term as the Chief Justice).
Each candidate’s judicial nominee would be announced before the election, and would not require confirmation after winning the election. In effect, the electoral college would select the president, vice president and a justice.
Beldar hated this idea…
🙁
Dave (1bb933) — 7/29/2020 @ 4:14 pm(To be clear, vacancies arising between presidential elections would NOT be filled)
Dave (1bb933) — 7/29/2020 @ 4:17 pmI wonder why Beldar doesn’t comment here anymore.
norcal (a5428a) — 7/29/2020 @ 6:34 pmWhy would it have to be a law clerk? If internal memos were printed out, a janitor could find them in a trash can.
The Dana in Kentucky (e49c8b) — 7/30/2020 @ 6:06 amSleight of hand. Like a stage magician. Having you watch the pretty girl in the leotard take his cape and hand him the wand while he puts together a majority to give Trump the election in November.
nk (1d9030) — 7/30/2020 @ 6:25 amIt’s a legitimate difference. Picked up steam when Mitch refused to even consider Marick Garland’s nomination. Dem’s felt that was ‘unfair’ and so adding additional justices would be a ‘just’ response to that.
Both what the Senate did and adding additional judges are permissible under the constitution, but both are ‘abnormal’ and will make the other side feel the process lacks legitimacy.
I think adding justices would for sure reduce the influence of the court. I also think these things always escalate. So it only get’s worse. Heck, if Biden wins and has the chance to replace a conservative justice I can see the fact that dems talked about it used as justification.
Time123 (b87ded) — 7/30/2020 @ 6:52 amHe took offense at some things that were not meant to offend him.
Dave (1bb933) — 7/30/2020 @ 7:10 am