Patterico's Pontifications

5/17/2022

Constitutional Vanguard: Why Do the Supreme Court Leak and Protests Matter?

Filed under: General — Patterico @ 8:29 am



This 5000-word piece began with a question from Time123 asking why I was so upset over the Supreme Court leak. It turned into a rambling discussion about the leak, the protests, the legality of the latter and the dangers posed by the former — but mostly, a discussion about the way we criticize our institutions. Specifically, too often we do so carelessly, with too much cynicism and hyperbole.

Overly harsh criticism of our own country carries several dangers. One is that it gets thrown back in our face. If influential people in the U.S. compare the racial tensions in our country to genocide, China will use those statements to minimize or justify its own actual genocide. If people here call the president a dictator, actual dictators will point to those statements. If Tucker Carlson criticizes Joe Biden as a military aggressor, an actual aggressor like Russia will put Carlson’s comments on its own state TV.

Another danger of rhetorical hyperbole in criticism of our government is that it encourages a fatalistic cynicism within our country, that tears down our own respect for our institutions. And as Jonah Goldberg has argued throughout his career, these institutions are fragile. They are precious. They are what separate us from the reign of thuggishness that history teaches us is the default governmental system of humanity.

That’s not going to be a very popular opinion for a people whose habitual stance is to toss off a quick snarky comment that assumes the worst about everyone in government. Perhaps those who actually read the piece will come away with a different view.

Read it here. Subscribe here.

44 Responses to “Constitutional Vanguard: Why Do the Supreme Court Leak and Protests Matter?”

  1. Thank you, Patterico.

    Simon Jester (f95a15)

  2. there is a law (18 U.S.C. § 1507) against picketing or parading in or near a court building or residence of a judge (or juror, witness, or court officer) with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty.

    I started to say that “influence” is too vague and I preferred “bribe, coerce, or intimidate”, but my mind went back to my misspent youth in 1L: Is it a crime to attempt to commit the impossible? (The example we had was “attempting” to kill a person who is already dead.)

    Now, I can see it for jurors. But judges should be made of sterner stuff. We have any number of legal fictions and another, and not all that fictional either, should be that you cannot influence judges by demonstrating. In front of the courthouse or in front of their house.

    nk (422712)

  3. The one institution that still commands some respect, at least until recent years, is the courts.

    Recent years… ‘Dancing Itos’ aside, the high profile internationally covered OJ Simpson case saw him walk 26 years ago; and Rodney King’s videotaped beating by policemen… the 1992 not guilty verdicts three decades ago sparked one of the worst race riots in American history… to name just two. The courts have done a good job in ‘recent years’ stoking the fires of critical scrutiny upon themselves from the citizenry.

    But the issue w/t SCOTUS is administrative, not a matter of legalities in an era of Populist America that has a low boiling point for officious things like sloppy paperwork.

    The be-robed institution is damaging itself by showing a little too much leg and revealing basic bureaucratic incompetence: they can’t keep track of a set of papers, which degrades their own presumption to rule on how the 330 million people should conduct their lives. And when recent SCOTUS candidates appear to mislead [to be polite] or deliberately lie [to be blunt] to their Senate conformation inquisitors — or skirt defining what a woman is, to get a lifetime bureaucratic gig, it only adds fuel to the fire and keeps that populist cauldron boiling.

    SCOTUS is a closed, cloaked system w/staff under 50 and– over two weeks now– they’ve still not run it to ground and disclosed the source of the leaker. Or perhaps the Chief Justice may know already and is deliberately holding the reveal until the court closes down for the summer. It brings to mind a visit to the Playboy Mansion some years ago. An ‘institution’ which cultivated a certain glossy paged, polished image to present to the world which, when scrutinized up close in reality, revealed arcane, shag carpeting, rotary phones and the rot of a decor circa 1975.

    The truly sad thing is SCOTUS is now just one more American institution on a lengthening list that has become so insulated that it damages itself without realizing it. They’ve even put up a fence around the SCOTUS edifice. Not a good look for any court or ‘hallowed hall of justice.’

    Like baseball; like NASA, like the oil industry; like the quiz shows of the 1950s; like 1980s Wall Street; like Weinstein’s Hollywood and the U.S. car industry– these ‘institutions’ repair and restore themselves over time. But the scars remain; you can patch them up over a generation or two, but you know the cracks in the foundation of confidence remain.

    DCSCA (329bf8)

  4. There’s a term (naïve cynicism) that applies to a lot of this. As in “Inflation is because greedy corprations are jacking up prices!” That our president succumbs to this temptation is regrettable.

    Kevin M (eeb9e9)

  5. Overly harsh criticism of our own country carries several dangers.

    Even worse possibility. If hyperbolic claims are made, such as “Guantanamo is a concentration camp” there is a danger that a later president says “Well, W had concentration camps, so I don’t see why they’re complaining about my reeducation facilities!”

    The fever-dream about one’s opposition become the basis for justifying real nightmares.

    Kevin M (eeb9e9)

  6. you cannot influence judges by demonstrating. In front of the courthouse or in front of their house.

    You can try to intimidate them, and scare the bejeezus out of their families. Now, this may not get the result you want, but it can “influence” them.

    In civil matters this intimidation might not be terribly great, but in criminal cases it could wreak havoc. A judge or prosecutor in a gang member’s trial might think twice if the gang “protested” in front of his house.

    Kevin M (eeb9e9)

  7. In front of the courthouse or in front of their house.

    There is a false equivalence here between “place of work” and “home.” It is so obvious that it really shouldn’t need to be pointed out. But apparently it does.

    Kevin M (eeb9e9)

  8. Overly harsh criticism of our own country carries several dangers.

    Wholly disagree. When first moving and living overseas- not visiting, but living there, year ’round- was initially quite startled at the criticism leveled at the U.S., from the outside looking in.

    But once out of the U.S. bubble, and seeing the different perspective from other lands, it was refreshing; the criticism was not only healthy, but strengthening and revealed a resilience of American institutions capable of fielding the balls and strikes pitched at it. Really made me proud of the United States– and much easier to win arguments in London pubs, Paris cafes– and even a Soviet Russia high school in Moscow.

    DCSCA (329bf8)

  9. I have heard this nonsense from the 1950’s onward. Joe mccarthy, richard nixon (late 1940’s) house un-american activities committee, hollywood black list and J. edgar hoovers war on black activists like Paul Robeson and Dr. King. Watergate, Iran-countra, Iraq war and to this day. America change it or lose it! Remember hearing how lucky blacks like Medger Evers were for living here and not in south africa. This country is better because of liberals changing it for the better in spite of conservatives. Read Alan Colmes book thank the liberals

    asset (dfc54c)

  10. “I have witnessed, in my day, the discovery, enthronement and subsequent collapse of a vast army of uplifters and world-savers, and am firmly convinced that all of them were mountebanks. We produce such mountebanks in greater number than any other country, and they climb to heights seldom equalled elsewhere. Nevertheless, we survive, and not only survive, but flourish.” — HL Mencken

    https://loyolanotredamelib.org/php/report05/articles/pdfs/Report47-03-Mencken-Marion-Rodgers.pdf

    Appalled (1a17de)

  11. Now I will uncheck the box

    Sammy Fnkelman (02a146)

  12. As for leak The leaker is a patriot doing their duty as in the pentagon papers. Robert macnamara wrote a book about the vietnam war and went on a conservative radio talk show (who’s name I am trying to remember) promoting his book about the vietnam war. The radio talk show host was a vietnam vet. Macnamara said their were people in the administration who had doubts about what we were doing in vietnam and that he was one of them! The vietnam vet talk show host exploded in anger yelling at him You sent me over their and you didn’t believe in it! He then terminated the interveiw and said all these years you vietnam war protesters were right and I was wrong about vietnam! The truth will set you free!

    asset (dfc54c)

  13. I appreciated your thoughts on “settled law” and the parsing that goes on when nominees are responding to grilling by Senators. I’ve taken it as disingenuous at best in the past and now have a new way to think about the nominees that is more charitable.

    Was also thinking about looking forward with gratitude to a time when God and Washington DC gift you a new pinata beat on, but then I thought it through and realized I needed to be more specific. Just when we think we’ve seen the worst ever, someone steps up and overachieves in reverse and we do not need that.

    Remain worried about the amoral fighters on the fringes who seem to be setting the terms on the debate.
    People are behaving self righteously, indulge in unapologetic political bigotry.
    There is a video of a woman here in Santa Barbara having an epic Karen style meltdown with racial overtones and many of the rabid assumed that she “must” be a Trump voter. I think I know the woman, and if it is her, she is not a Trump voter, she is recently bereaved, struggling financially to cover medical bills, she has really fallen apart mentally, physically, emotionally. No one wants to know her story, they just want her destroyed. Yea Team!

    steveg (9dcf52)

  14. steveg (9dcf52) — 5/17/2022 @ 2:50 pm

    You live in Santa Barbara?

    Xian mu ji du hen! (This is my favorite Chinese phrase. It means “envious jealous hate you”! 😛)

    norcal (3f02c4)

  15. A judge or prosecutor in a gang member’s trial might think twice if the gang “protested” in front of his house.

    Fair enough. Let’s draft a statute: “It shall be unlawful for a gang to protest in front of the home of a judge or a prosecutor in a gang member’s trial.”

    nk (422712)

  16. Oh, you are one naughty boy, nk.

    norcal (3f02c4)

  17. No, I’m serious. Laws that infringe on freedom of speech have to be very clear, very precise, and very narrow.

    nk (422712)

  18. @12. As for leak… The leaker is a patriot doing their duty as in the pentagon papers.

    Not really. The Pentagon Papers were classified secret and never meant to be made public; Alito’s paperwork was merely a draft; ‘notes’ of a pending opinion to be discussed, massaged and refined between the justices before a formal ruling for eventual release to the public.

    It’s just poor administrative procedures by a staid, secretive government bureaucracy: sloppy paperwork. But given the magnitude and weight SCOTUS decisions have on daily life in the USA, unacceptable. Thank God their offices aren’t in charge of managing the nuclear launch codes.

    The sole objective of court operations now must be to find the leaker, if only to minimize further damage to the institution. And the only spokesperson about it has to be the Chief Justice. Yet the two most chatty about it has been one justice known for decades for never speaking on the job and another who was the author of the document in question. ‘They doth protest too much.’ Hence my suspicion, as noted on another thread, that Alito’s camp leaked it, for the reasons there mentioned. They live and work in their own world; a bubble. And it’s bursting.

    DCSCA (7f7dd3)

  19. Our Governor Newsom used the word “gang” appropriately, remembered the woke room and in a panic apologized for the pejorative and reassembled his speak to “groups of folks”.

    I remember when the Los Chiques gang in the Colonia area of Oxnard held a bake/tamale sale to raise money to fight a gang injunction against assembly. I think they won, or at least got the terms narrowed. If you wanted to find Oxnard gangsters/group of folks on the run from PD you went to Puerto Escondido, Oaxaca

    steveg (eb873a)

  20. Izzy Einstein and Moe Smith have a better chance of finding the leaker!

    mg (8cbc69)

  21. I haven’t seen the new West Side Story. What does Spielberg call the Sharks and the Jets?

    Dear kindly Sergeant Krupke,
    We’re just a group folks.
    Just ask Governor Newsome,
    And all the other wokes!

    nk (d2a2d1)

  22. Dang it! *group of folks*

    nk (d2a2d1)

  23. norcal. on Santa Barbara, yes, I live here. Very very blessed life. My Dad is from Flint, MI and after WWII was over, went to school on GI Bill and moved the family here when I was 1 year old. By the way, Dad is alive and still drives. Yikes.

    steveg (32ced9)

  24. The polarization needs to stop and of course I’ve at times been a willing participant. Its been an amazing run. I had a great time mocking an unlikeable Ms Clinton for losing to a person who should have lost all 50 states and then suffered the ignominy of voting for a guy who lost to a dementia patient. My move to the middle is entirely based on preservation of whatever shred of dignity, sanity I have left.

    steveg (32ced9)

  25. @21. I haven’t seen the new West Side Story. What does Spielberg call the Sharks and the Jets?

    ‘Illegal aliens.’ Or– as they say on Park Avenue– Undocumented Immigrants.’ 😉

    ‘I like to be in America, OK by me in America, everything free in America…’ – West Side Story

    DCSCA (f4c5e5)

  26. steveg (32ced9) — 5/17/2022 @ 7:48 pm

    So, you’ve lived in Santa Barbara your whole life? What I said before times ten!

    norcal (3f02c4)

  27. @12 I finally remembered the talk show hosts name who kicked robert mcnamera off his show. It was gil gross.

    asset (e81207)

  28. HUAC, hunh?

    Is there anyone who thinks that being member of the American branch of Stalin’s thugocracy wasn’t a concern? If you think that it wasn’t, suppose instead of Stalin we say “Hitler.” Does your opinion change?

    Kevin M (eeb9e9)

  29. No, I’m serious. Laws that infringe on freedom of speech have to be very clear, very precise, and very narrow.

    Laws against threats are not all that specific.

    Kevin M (eeb9e9)

  30. Fair enough. Let’s draft a statute: “It shall be unlawful for a gang to protest in front of the home of a judge or a prosecutor in a gang member’s trial.”

    But it would be OK for them to protest in front of their neighbor’s house?

    Kevin M (eeb9e9)

  31. A judge or prosecutor in a gang member’s trial might think twice if the gang “protested” in front of his house.

    Fair enough. Let’s draft a statute: “It shall be unlawful for a gang to protest in front of the home of a judge or a prosecutor in a gang member’s trial.”

    nk (422712) — 5/17/2022 @ 3:25 pm

    nk (c0142c)

  32. We have laws against stalking. We have laws against intimidation. We have laws against jaywalking. We have laws against blocking traffic. We have laws against loud noise after 10 pm.

    When the legislature designs an elixir expressly prescribed for protests and demonstrations against government action, it goes into the “clear and present danger” and “strict scrutiny” retorts for testing.

    nk (c0142c)

  33. When does a protest become impermissible intimidation and when does it become a threat to an institution?

    I appreciate Patterico’s framing of how we got here…..that in Roe the court stripped the question from the public square and attempted to fashion its own Solomon-like compromise: The woman’s interest holds in the first trimester then, subsequently, the state’s interest in protecting fetal life gains more leverage. It’s classic balancing that seems legislative in nature where the actual boundary, 8-weeks, 12-weeks, 15-weeks, has no real Constitutional basis….it’s a value judgement. And if Alito’s opinion holds, each state can reflect its electorate’s reasoned position on the matter. Line drawing will occur and people will continue to argue. I suspect that it will be messy in some states, but democracy is messy.

    Now how does that messiness translate into one’s right to protest? What if one feels strongly that the 14A should protect the right to abortion from an Equal Protection standpoint even though men and women do not appear similarly situated with regards to pregnancy? Do we move the question to Presidential politics and who gets appointed to the Court next and then take another swipe? I tend to agree that the appearance of legislating from the Court degrades the rule of law and its required predictability. But if 50 years of precedent can be swiped aside, why can’t it be done again?

    And what of nk’s implied point that protest is critical to democracy and that government can cabin and regulate protest, just not extinguish it? So, it can enforce noise ordinances and threatening conduct, but not prevent peaceful demonstrations? Now I tend to believe that protesting at the residence is about intimidation. But it’s also about maximizing exposure with the goals to (1) influence public opinion, (2) build an audience, (3) compel legislative action, (4) share information, and (5) convey passion. Enforce laws on tresspassing and harassment, but don’t over-regulate speech…so the argument goes. Would our view change if the opinion was 180 degrees different and Kagan was being pressured at her residence by pro-life protesters? It seems unseemly but burning flags once did too, as does ugly protests at military funerals. The Court has usually erred on the side of speech, but now it’s in the middle of it. Is the legal institution being imperiled or is the proposition of free speech?

    AJ_Liberty (a36eed)

  34. Obama really took tearing the fabric a step further at the State of the Union in 2010, and again 2012 calling SC Justices “unelected judges”. Then Trump decided it was OK to go after Sotomayor.
    Everyone needs to take a deep breath and step back, but won’t

    steveg (dbcef5)

  35. ……. in Roe the court stripped the question from the public square and attempted to fashion its own Solomon-like compromise….

    It earlier than Roe; Griswold v. Connecticut was decided in 1965 and created a right (privacy) that is not found explicitly in the Constitution but as “penumbras” (undefined) in parts of the Constitution.

    …..In other words, the First Amendment has a penumbra…….specific guarantees in the Bill of Rights have penumbras, formed by emanations……

    Since then the Court has stripped many issues from the public square, not just abortion: the definition of who may marry (Loving v. Virginia and Obergefell v. Hodges), who may have sexual relations (Lawrence v. Texas), whether unmarried couples can use contraception (Eisenstadt v. Baird) and whether marijuana can be grown for personal use (Gonzales v. Raich). While these cases relied upon the 14th Amendment rather than “penumbras”, the fact is that they removed decision making authority from the states and local governments.

    Rip Murdock (d2a2a8)

  36. If Roe falls there will be a process:

    First, states will do what they will do. Abortion will be a felony in Mississippi and in California a 13-yo will be able to elect abortion as the baby is crowning, and have the State hide the whole thing from her parents.

    Then, given the mish-mash of laws, Congress will craft a compromise federal statute that will reflect the world consensus: Abortion on demand in the first 12 weeks, then later only for a damn good reason.

    Kevin M (eeb9e9)

  37. Rip, there IS a right to privacy inherent in the Constitution. But like all such unenumerated rights, it is limited. Privacy to do WHAT!?” being the operative limit, usually turning on “harm to others.” You don’t have privacy right to torture people, rape your daughter or counterfeit money. The income tax seems to straddle this line though.

    Kevin M (eeb9e9)

  38. This, from Calvin and Hobbes, illustrates one of the dangers of too much cynicism.

    And discussing elected leaders only in absolutes. In 2016, for example, I gave people this advice: Vote for Trump if social issues were the most important to you, vote for Clinton if foreign policy was the most important, and vote for the Libertarian, if economic issues were the most important to you. I don’t think that advice satisfied anyone — it certainly didn’t make me happy — but I think it was honest, at a time when honesty was being more and more discounted.

    In a world in which we have many enemies: Islamic terrorists, the Iranian theocracy, the Russian kleptocratic dictatorship, and, most of all, the ChiComs, we need to look more for ways to unite with our fellow citizens, rather than seeing so many of them as the enemy.

    Jim Miller (406a93)

  39. The test of Loving, Obergefell, etc is whether those who oppose them still oppose them, or whether they accept the decision and move on. Since there is no public harm, they are far easier to accept than abortion, which never achieved even grudging acceptance. At this point, overturning Loving would result in a rather immediate Constitutional amendment, as opposition to mixed-race marriage is minuscule and largely something the Klan is concerned about.

    Kevin M (eeb9e9)

  40. > Congress will craft a compromise federal statute that will reflect the world consensus: Abortion on demand in the first 12 weeks, then later only for a damn good reason.

    Such a bill could not pass in the US Senate as long as the filibuster stands and Republican primaries are won by the most conservative voice on abortion.

    I do not expect it to be possible for such a bill to pass within *a decade*.

    aphrael (0923c7)

  41. Actually, it would not pass because few Democrats OR Republcians would vote for it, even though that is where 60% of the voters are. Which just goes to show you how divorced both parties are from the People, hewing to one extreme or another.

    The takeaway from last night’s election in PA should be this: in a state renowned for political moderation, a hard-core progressive won the Democrat nomination for Senate, despite having had a stroke. But I suspect all the MSM will talk about is Trump.

    Kevin M (eeb9e9)

  42. Such a bill could not pass in the US Senate as long as the filibuster stands and Republican primaries are won by the most conservative voice on abortion.

    But give it a few years. No abortion law that mandated an extreme position is likely to pass Congress ever. But they will in the states. So…

    Does a pro-life Republican care about reigning in abortion in CA, NM, OR, WA, IL, NY, NJ, MD, etc?

    Does a pro-choice Democrat care about overturning outright bans in MS, AL, FL, TX, KS, OK, AK, AR, TN, etc?

    At some point these forces will come together in Congress. They have to. Kicking and screaming perhaps, but they will have to.

    Kevin M (eeb9e9)

  43. Clearly Griswold and Loving cover matters that no state is interested in challenging any longer. It even seems quaint that someone would assert a rational basis to prohibit contraception or mixed-race marriages. Attitudes and times have changed. But the question is more about the reasoning that the Court ought to use in similar situations. And this ultimately seems to be about the correct levels of generality to apply and the consistency of logic, and not just a referendum on attitudes. For instance, should same-sex marriage in Obergefell be about marrying who you want to marry (like Loving) or should it be about demonstrating a deeply-rooted tradition (that doesn’t exist for same-sex individuals). Should the court have passed back same-sex marriage to let the states haggle it out….or would that have created an injustice between states that was not workable? Should Courts resolve injustices that are based on less-than-rational discrimination? Can we show that something is truly irrational? Roe is different in that it involves two competing rational claims, and the decision of who should get to choose. Even though society has a clear opinion on the matter, it’s probably not strong enough to climb the incredible tall hill of a Constitutional amendment….and in these contentious times, even federal legislation is uncertain. So we seem destined to have very different access state to state and more black market abortions in some locales….until consensus becomes more clear. Again messy but probably the best possible path.

    AJ_Liberty (ec7f74)

  44. <AJ_Liberty (ec7f74) — 5/18/2022 @ 11:04 am

    n It even seems quaint that someone would assert a rational basis to prohibit contraception or mixed-race marriages.

    While there apparently are people on sites that the Buffalo murderer read that don’t like these trends, but they don’t advocate legislation. They propose killing people. And they have no support, but because of contact with each other (and some trolls?) may fool themselves about that.

    https://www.nytimes.com/2022/05/17/opinion/buffalo-shooting-replacement-theory.html

    ….The great replacement is the latest incarnation of an old idea: the belief that elites are attempting to destroy the white race by overwhelming it with nonwhite groups and thinning them out with interbreeding until white people no longer exist. This idea is not, at its core, about any single threat, be it immigrants or people of color, but rather about the white race that it purports to protect….Abortion is a problem because white babies will be aborted. L.G.B.T.Q. rights and feminism will take women from the home and decrease the white birthrate. Integration, intermarriage and even the presence of Black people distant from a white community — an issue apparently of keen interest in the Buffalo attack — are seen as a threat to the white birthrate through the threat of miscegenation….

    More on these organizations:

    https://www.nytimes.com/2021/05/01/us/the-order-proud-boys-oath-keepers-far-right.html

    Sammy Finkelman (02a146)


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