Patterico's Pontifications

5/31/2022

Investigators at Supreme Court Demanding Clerks Provide Cell Phone Records and Sign Affidavits

Filed under: General — Patterico @ 8:29 am



Good.

Supreme Court officials are escalating their search for the source of the leaked draft opinion that would overturn Roe v. Wade, taking steps to require law clerks to provide cell phone records and sign affidavits, three sources with knowledge of the efforts have told CNN.

Some clerks are apparently so alarmed over the moves, particularly the sudden requests for private cell data, that they have begun exploring whether to hire outside counsel.

The court’s moves are unprecedented and the most striking development to date in the investigation into who might have provided Politico with the draft opinion it published on May 2. The probe has intensified the already high tensions at the Supreme Court, where the conservative majority is poised to roll back a half-century of abortion rights and privacy protections.

Chief Justice John Roberts met with law clerks as a group after the breach, CNN has learned, but it is not known whether any systematic individual interviews have occurred.

Regular readers might recall that I immediately called for law clerks to be required to sign affidavits or be fired. I think the reaction here was mostly reasonable, but on Twitter (which largely leans left) people treated me like I was some combination of insane and/or fascist. I was also told there was no legal way investigators could possibly require law clerks to sign affidavits. I was told this repeatedly with Great Confidence.

Well, the clerks sign an agreement before they begin their jobs pledging extreme confidentiality. Justice Scalia once said: “If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career.” Yes, they can demand this — and more power to justices who think like Justice Scalia.

But don’t clerks have Fifth Amendment rights against self-incrimination? They surely do. Here’s how it generally works at a police department when officers are required to give statements as part of the investigation of a police shooting, where an officer obviously has potential legal jeopardy, especially these days. I would imagine it would work the same way at the Court. The investigator would demand a statement. The clerk would refuse, citing the Fifth Amendment. The investigator would order the clerk to give a statement anyway, and inform the clerk that any failure to do so would subject the clerk to discipline for insubordination, up to and including discharge. This process effectively immunizes the employee against having that statement used against him or her in a criminal proceeding, while allowing the public entity — a police department or, here, the Court — to conduct a necessary investigation.

It would be interesting if any justices objected to this. My understanding is that the clerks are employees of the Court, but are treated as employees of the justices out of courtesy. Whether an individual justice could, or would, sanction a clerk’s refusal to comply, I don’t know.

I would imagine the justices would be on board, and that the Chief could and would overrule them if necessary. My position —- and I imagine the position of the Chief Justice, at least — has always been that maintaining the viability of a prosecution is not the top priority.

My guess would be that all of the justices are eager to see the leaker rooted out and made into a particularly nasty public example. If they fail to do so, it will have huge implications for the possibility of this becoming commonplace, which would destroy trust inside the Court. Which is probably not at a high point right now anyway, but which needs to be in years going forward if this institution is going to work.

61 Responses to “Investigators at Supreme Court Demanding Clerks Provide Cell Phone Records and Sign Affidavits”

  1. https://reformclub.blogspot.com/2022/05/query-for-cnns-joan-biskupic.html

    “Should you not inquire (and report) if the investigators are also investigating non-law-clerk Supreme Court personnel in a similar fashion?*

    “Should you not inquire (and report) if the investigators are also investigating all nine Supreme Court Justices in a similar fashion? You might ask each individual Justice if he or she authorized the leak, or if he or she knows the identity of the leaker. It is up to you to ask.”

    “To be sure, I do not think we can rule out the possibility that the leak was from someone other than a law clerk–and, perhaps, by a person who is not Supreme Court staff at all. Furthermore, I do not think we can rule out the possibility that the leak (whoever did it) was authorized by a Justice.”

    “Biskupic wrote: “It is not known if court officials are asking employees who are part of the permanent staff, beyond the one-year law clerks, for their phone records.” Seth’s response: You might know if you ask.”

    steveg (5aabd4)

  2. The “three sources with knowledge” were not allowed to even leak out the stuff about the law clerks to begin with.

    And no, you do not have a right to “inquire (and report)” about confidential matters any more than you have a right to solicit and resell stolen goods.

    I always thought the Pentagon Papers Case (New York Times Co. v. United States) was a bigger travesty than Roe v. Wade from a juridical point of view. An out-of-control Court making up the law as it went along.

    nk (ff4ec3)

  3. …..maintaining the viability of a prosecution is not the top priority.

    For what crime and under what law would a clerk (or anyone else) be prosecuted?

    Rip Murdock (d2a2a8)

  4. “[T]he Supreme Court, where the conservative majority is poised to roll back a half-century of abortion rights and privacy protections.”

    Here CNN is presenting facts not in evidence, feeding off the liberal parade of horrors that they’ve built up out of the Alito draft.

    The privacy protections are not challenged in the Alito draft, except as they are used to justify killing fetuses. Alito goes to great pains to demonstrate why abortion is not like those other things, how Roe has failed to be settled law even after 50 years, and why a privacy claim is woefully insufficient.

    Matter of fact, Casey discarded the privacy claim 30 years ago. Alito’s draft doesn’t lay the groundwork for overturning even Obergefell, let alone Griswold.

    Kevin M (eeb9e9)

  5. My guess would be that all of the justices are eager to see the leaker rooted out and made into a particularly nasty public example

    At least 8 of them anyway.

    Kevin M (eeb9e9)

  6. BTW, this CNN article seems to rely on leaks from the Court.

    Kevin M (eeb9e9)

  7. It seems like the clerks would want to do anything to establish that they aren’t the leaker and yet are smart enough to have already sought legal counsel. Personal phone records, which might have nothing to do with any leak, could be incriminating for other reasons. I’m not a law clerk but even I would know that it would be prudent to obtain legal counsel.

    Dana (2c7c1d)

  8. D.C. Circuit Workplace Survey Leaked, And Investigation of Leaked Survey Is Leaked

    Recently, the D.C. Circuit performed a confidential workplace survey. And, somehow, that report leaked to Ann Marimow of the Washington Post.

    In the survey, a copy of which was obtained by The Washington Post, and in related interviews, current and former courthouse employees who acknowledged having witnessed misconduct described their reluctance to file formal complaints against their superiors. They cited fears of retaliation and distrust that the federal judiciary’s system for workplace accountability, which tasks judges with policing one another, ultimately would resolve their concerns.

    ………
    (On May 20th), the Washington Post reported on another leak!

    D.C. Circuit Chief Judge Sri Srinivasan informed colleagues of the planned investigation after The Washington Post on Monday published a report about the survey’s findings and the reluctance among courthouse employees to file workplace misconduct complaints against their superiors for fear of reprisal.

    Srinivasan said Thursday that leaders of the U.S. District Court and U.S. Court of Appeals for the D.C. Circuit initiated the survey last year to “better understand our employees’ workplace experiences, and employees who completed the survey did so on the understanding that their responses would be used only for that purpose and kept confidential.”

    “The leak of a confidential document compiling the responses was a serious breach of that understanding and must be investigated,” he said in a statement. Srinivasan did not respond to questions seeking further details about the inquiry.
    ………
    The D.C. Circuit’s plan to investigate how the survey was leaked is unusual but not without precedent. In 1992, a D.C. Circuit judge urged his colleagues to initiate a similar probe to identify the source for a news article detailing the position that then-Supreme Court nominee Clarence Thomas had taken in a draft opinion for a controversial affirmative action case. An investigation was never conducted.

    ……It is true that no investigation was ever conducted. Why? At the time, there was no clear rule that prohibited leaking confidential information. ……
    ……..

    Rip Murdock (d2a2a8)

  9. Dana, OT comment but I found a good article by Tim Carney that I think you’ll like about religion and gun violence. Link in the open thread.

    Time123 (fcfc1c)

  10. 1. I hope they find the leaker.
    2. I hope a SC clerk is smart enough to get away with it. Not that I want them to escape consequences for this, but because I want them to be smart enough to.

    So I guess I hope that they’re caught more through bad luck them stupidity on their part.

    Time123 (fcfc1c)

  11. Sussmann, who worked for Clinton, acquitted of lying to FBI in 2016

    In DC, only the party affiliation matters with a jury.

    Kevin M (eeb9e9)

  12. The investigator would demand a statement. The clerk would refuse, citing the Fifth Amendment. The investigator would order the clerk to give a statement anyway, and inform the clerk that any failure to do so would subject the clerk to discipline for insubordination, up to and including discharge.

    Suppose instead of phone records, the investigator brought in a lie detector. How would that play differently?

    Kevin M (eeb9e9)

  13. I think they should also ask for bank records. There are lots of reasons a clerk might leak information for money, and lots of people who would pay plenty for that kind of leak.

    Kevin M (eeb9e9)

  14. As for “confidential surveys” being leaked, that happened at my alma mater when the faculty was surveyed about how well minority students were doing in their classrooms. Some very frank responses got outed.

    Kevin M (eeb9e9)

  15. Kevin M – if my employer demanded that I turn over my cell phone records *or* submit to a lie detector, I would quit on the spot.

    aphrael (3a655c)

  16. Same for bank records. The fact that you pay me to do work for you does not entitle you to access this kind of information.

    aphrael (3a655c)

  17. nk
    I believe the inquire and report remarks were aimed at the reporter and am in agreement that no one should be telling the reporter anything, but clearly that genie has left the bottle and is enjoying the view. Roberts has a bigger problem than he thought, unless he is orchestrating the current leakage

    steveg (5aabd4)

  18. Polygraphs are good to intimidate staff, but are not that reliable.

    The cumulative research evidence suggests that (Control Question Tests) detect deception better than chance, but with significant error rates, both of misclassifying innocent subjects (false positives) and failing to detect guilty individuals (false negatives).

    Rip Murdock (d2a2a8)

  19. Time123

    I’d guess hubris is a form of stupidity.

    Washington is great at cover up.
    Andrew Weismann took 15 cell phones and wiped them all “accidentally” by entering incorrect passwords 11 times into each phone. Somehow his colleagues were unable to provide the correct passwords to their phones so Weismann “war dialed”. Hillary Clinton’s lawyers were able to decide which of her emails were “relevant” and all of her devices were destroyed

    steveg (5aabd4)

  20. The text records things would worry me if I were a clerk. Did I ever send a text that is embarrassing in hindsight? Did i ever complain about a judge or vent about something at work or offer an intemperate thought about case or potential case? I assume all of that will come out .

    Time123 (fcfc1c)

  21. Prof. Josh Blackmun is not impressed:

    …..[T]he Supreme Court marshal office has, as far as I know, zero background in performing forensic analysis of phone records. Unless experts from DOJ are detailed, I am skeptical the Supreme Court has the competency to perform these tasks internally. Moreover, the idea of pulling “phone records” is so quaint. Anyone serious about leaking the document would use secure and encrypted channels like Signal, Telegram, or something more secure. Do we really think the law clerks are sliding into Josh Gerstein’s Instagram DMs? More likely the leaker used sophisticated channels with Politico’s national security reporter, Alexander Ward.

    ……[T]he climate inside the Court must resemble a prison. There are massive security barriers around the building, and I understand Second Street–where the garage entrance to the Court is located–has been shut down. Now, every clerk must submit their private records to the marshal. Is there any expectation of privacy? Or protocol to prevent disclosure? And will the marshal start to contact the people that law clerks called? I imagine some Justices may resist this intrusion into their clerk’s confidential information.

    …….[L]aw clerks are being asked to sign affidavits for an explicit purpose: if they lie, they face charges of making false statements to a government official. And, in theory, they can be criminally prosecuted. But what happens if a clerk is not at fault? (Joan Biskupic) explains that as many as 75 people may have had access to the opinion:

    If tradition was followed, copies were sent electronically and, separately, printed out and hand-delivered to chambers by aides to the marshal. Other employees connected to the nine chambers would have had some access to the opinion. CNN could not verify that number, but former law clerks say the document could have been sent through regular channels to nearly 75 people. It is not known if court officials are asking employees who are part of the permanent staff, beyond the one-year law clerks, for their phone records.

    Ultimately, three-dozen law clerks–the cream of the crop–are being put through the wringer for an act that may not have been taken by a clerk. ……
    ……..

    Rip Murdock (d2a2a8)

  22. Well, the clerks sign an agreement before they begin their jobs pledging extreme confidentiality. Justice Scalia once said: “If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career.” Yes, they can demand this — and more power to justices who think like Justice Scalia.

    Seems Scalia was quite the Trumpian. So throw the clerks under the bus, eh? What about the justices themselves? Who is to say one of them didn’t leak?!

    This is all on Alito. It was his draft; his paperwork to keep track of and given the be-robed bureaucrat’s public histrionics at the SOTU years back and pronouncements about not keeping ‘silent,’-and his comments after the leak was made public… no justice is above scrutiny on this.

    Besides, if the leaker disregarded the spirit of confidentiality to begin with, signing another piece of paper won’t mean much. It has been a month. It’s a closed system w/a small staff. You get better performance from a 1974 Pinto; even Queeg managed to learn who ate the strawberries.

    They’re sloppy administrators who couldn’t find their own car keys– because they’re driven to and from work in big, black, expensive government SUVs. Next thing you know, these sheltered, life-time-appointed bureaucrats will blame– Vladimir Putin.

    DCSCA (9cde7e)

  23. If it’s a justice, then I go with Beyer….one last middle finger as he heads for the exit. I say that with zero confidence and zero hope

    AJ_Liberty (a36eed)

  24. @24. My money is on Alito, as noted in more detail on previous threads over past weeks.

    But the accuser class certainly shouldn’t put themselves above scrutiny- unless that was part of the plan all along. But a month is long enough for these paper jockeys to run this race to ground. If they can’t manage themselves why should 330 million citizens give a damn on any judgements they make to manage everybody else. The SCOTUS should have shut down; ceased all work and tracked this down immediately. But, as is the nature of government bureaucrats and the Mississippi River- they just keep rolling along.

    DCSCA (3f26d7)

  25. @25, Certainly Columbo, Barnaby Jones, Matlock, and, throw in a dead body, Quincy would have had this resolved in 60min. If only….

    AJ_Liberty (a36eed)

  26. The leaker is a patriot and a hero. If they don’t lie they can’t prosecute as no crime was committed. Sussmen verdict shows what kind of jury you get in d.c. if they try to prosecute. All democrat activists.

    asset (449f4b)

  27. Kevin M – if my employer demanded that I turn over my cell phone records *or* submit to a lie detector, I would quit on the spot.

    That’s your right, of course. But many government employees sign away those rights to the point where termination for cause is the alternative. Go read the security clearance agreements some time. There are people in government who have to periodically pass a lie detector as a matter of ROUTINE.

    Note also Patterico’s comments about inadmissibility of those cell records. After an assertion of rights, they can still demand them for employment purposes but they cannot be used in a criminal proceeding.

    Note that “your” cell phone records can be retrieved from your provider instead. This is different from cell phone contents which — barring the incriminating document itself — are unlikely to be relevant.

    Kevin M (eeb9e9)

  28. Same for bank records. The fact that you pay me to do work for you does not entitle you to access this kind of information.

    Sadly, the Supreme Court disagrees with you.

    United States v. Miller (1976)

    Also “third-party doctrine

    Kevin M (eeb9e9)

  29. Polygraphs are good to intimidate staff, but are not that reliable.

    The CIA believes in them, as does the rest of the intelligence community.

    Kevin M (eeb9e9)

  30. Did i ever complain about a judge or vent about something at work or offer an intemperate thought about case or potential case? I assume all of that will come out .

    I would think that Roberts isn’t a fukkwit and knows that that kind of search needs a “special master” kind of separation.

    Kevin M (eeb9e9)

  31. The leaker is a patriot and a hero. If they don’t lie they can’t prosecute as no crime was committed. Sussmen verdict shows what kind of jury you get in d.c. if they try to prosecute. All democrat activists.

    Isn’t it cool that asset believes what mg thinks?

    Kevin M (eeb9e9)

  32. If it is a justice, I go with the obvious — Sotomayor. She IS a fukkwit and well past her Peter Point.

    Kevin M (eeb9e9)

  33. Anyone serious about leaking the document would use secure and encrypted channels

    Unless it was Sotomayor who probably has to have someone print out her emails.

    Kevin M (eeb9e9)

  34. Nothing will come of this, because Ginni Thomas is the one who leaked the documents.

    Davethulhu (ee3282)

  35. Sussmen verdict shows what kind of jury you get in d.c. if they try to prosecute.

    The leak is a violation of confidentiality, but apparently not of the law.

    ………
    First, there are no laws that would explicitly cover the unauthorized release of a draft opinion; they’re not classified or national security materials. Maybe Congress could pass a law allowing them to be designated as such, but nothing like that currently exists.
    ……..
    Supreme Court law clerks clearly take an oath pledging to maintain confidential information that they learn about as a result of their jobs in their justice’s chambers. But the Supreme Court has pared back that statute’s reach to cover “only those who, in violation of a fiduciary duty, participate in bribery or kickback schemes” and that seems an unlikely outcome here.

    Another remote possibility is prosecution under the Computer Fraud and Abuse Act of 1986, which is codified at 18 U.S.C. §1030. The act makes it a crime “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”

    But the court, just last term in Van Buren v. United States, held that this “provision covers those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend. It does not cover those who … have improper motives for obtaining information that is otherwise available to them.”

    A final potentially promising possibility is prosecution under 18 U.S.C. §641, which broadly deals with theft, embezzlement, or conversion of government property or governmental “things of value.”

    But the U.S. Court of Appeals for the District of Columbia Circuit is one of the circuits that has held an intangible item, like information, can be a “thing of value” under this statute, and since the Supreme Court is located within the District of Columbia Circuit­, that increases the odds that this would be a chargeable offense. Still, prosecution under this statute is no slam dunk.
    ……..

    Rip Murdock (d2a2a8)

  36. The CIA believes in them, as does the rest of the intelligence community.

    Ask the CIA about Aldrich Ames and polygraphs.

    Rip Murdock (d2a2a8)

  37. The CIA believes in them, as does the rest of the intelligence community.

    And I doubt law clerks receive security clearances that would require polygraphs as a routine part of employment.

    Rip Murdock (d2a2a8)

  38. Same for bank records. The fact that you pay me to do work for you does not entitle you to access this kind of information.

    Sadly, the Supreme Court disagrees with you.

    United States v. Miller (1976)

    Miller only allows the government to retrieve bank and phone records without a warrant, not all private employers.

    Rip Murdock (d2a2a8)

  39. Thulu’s absurd remarks show how much of an issue this is to the left. They have no problem lying and smearing a political opponent even when owning the truth would win them accolades from their peers.

    NJRob (038f80)

  40. It is a lefty for sure! If they can’t control the Court, they will defile it. Drag it down to their gutter. Muddy its legitimacy. It is what lefties do. Across the board, with any institution, in anything having to do with social issues.

    nk (fb96b0)

  41. Yes, it’s inconceivable that Ginni “Insurrectionist” Thomas would leak anything.

    Davethulhu (ee3282)

  42. If the DCSCA theory is true, is Alito using long lost cousins to keep Beer Boy, Based Angelina, and Goody Two such in line?

    urbanleftbehind (2b999d)

  43. Lie detectors only work if you believe in them, and also tell a second lie, irrelevant to the inquiry. The skill of the person conducting the lie detector test lies in getting someone to tell the “test” lie and worry about it.

    Sammy Finkelman (1d215a)

  44. Hey, thulu… chill with the Depends shaming.

    urbanleftbehind (2b999d)

  45. Yes, it’s inconceivable that Ginni “Insurrectionist” Thomas would leak anything.

    Yes, it is in fact inconceivable for a person like Ginni Thomas to mess with her husband of 35 years, his job, and his stature in society, in that way, for no explicable reason. To whom it is not inconceivable, all I can say is: “Ginni Thomas is not like the women you know.”

    nk (fb96b0)

  46. @43. Meh. Just revisit his public comments, attitudes and body language over the years. He probably believes he should be Chief Justice. It’s his own paperwork he can’t manage.

    Hey Sam- your fly is open.

    DCSCA (064ab0)

  47. Actually sounds like too many women I do know. Like the woman walking into the bar with her boyfriend and since you know her ways and kinda feel sorry for the boyfriend, you call 911 the minute she starts talking crap to the bikers about how close they are to her boyfriends truck. “You can’t park that close to my boyfriends truck!” Bikers all eyeball boyfriend like the the limping wildebeast he is.

    steveg (2a2ec7)

  48. Miller only allows the government to retrieve bank and phone records without a warrant, not all private employers.

    We are not talking about private employers wrt court clerks. Private employers can’t get your phone records, either (but they could get their phone records).

    Kevin M (eeb9e9)

  49. Wow, steveg, you have some nasty exes.

    Kevin M (eeb9e9)

  50. @15. As for “confidential surveys” being leaked, that happened at my alma mater when the faculty was surveyed about how well minority students were doing in their classrooms. Some very frank responses got outed.

    That’s not quite the same as a rough SCOTUS draft getting loose, where daily operations and decision making impacts the lives of 330 million people.

    “Yeah, every country doctor should run his office like the Lunar Lab.” – Dr. Mark Hall [James Olson] ‘The Andromeda Strain’ 1971

    DCSCA (136080)

  51. That’s not quite the same

    To the professors who said things like “some of these kids come here unprepared” is was just the same.

    Kevin M (eeb9e9)

  52. Time for Bondo Barr and his Spray Painter Durham to rescue the cause.

    mg (8cbc69)

  53. Polygraphs are good to intimidate staff, but are not that reliable.

    The CIA believes in them, as does the rest of the intelligence community.
    Kevin M (eeb9e9) — 5/31/2022 @ 2:30 pm

    I wouldn’t say the USIC believes in polygraphs – at least not to the extent that you think they do. Sure, they will conduct regular polygraphs of those with clearances, but failure does not mean termination. It usually means a temporary suspension of clearances until an investigation can explain if there is any merit to the failure.

    And yes, those with clearances sign their rights away – regular polygraphs, recurring background checks, drug tests, and financial audits. None on their own can catch a leaker or a spy but together it makes it really hard for a spy or a leaker to do their thing.

    Hoi Polloi (9b0a99)

  54. None on their own can catch a leaker or a spy but together it makes it really hard for a spy or a leaker to do their thing.

    Ask Aldrich Ames or Robert Hannssen how hard it was to get away with spying.

    Ames said he was not afraid of being caught by the FBI or CIA but was afraid of Soviet defectors, saying, “Virtually every American who has been jailed in connection with espionage has been fingered by a Soviet source”. Additionally, when asked about the polygraph tests, Ames said, “There’s no special magic. Confidence is what does it. Confidence and a friendly relationship with the examiner. Rapport, where you smile and you make him think that you like him. Making the examiner believe that the examinee has no importance to you seals the deal.”

    Rip Murdock (d2a2a8)

  55. Anyone serious about leaking the document would use secure and encrypted channels

    But they wouldn’t keep their very contact with a possible channel of a leak a secret, especially since at first there would be no intention to leak. And there might be text messages indicating an agreement to meet or call.

    Sammy Finkelman (1d215a)

  56. Alito’s draft opinion insults Kennedy’s legacy — will Gorsuch and Kavanaugh sign on?

    ‘Supreme Court Justice Samuel Alito’s recently leaked draft opinion shows there is still reason for hope that the constitutional right to abortion can survive. That may seem counterintuitive. But not when you consider how far over the top Alito had to go to try to justify overturning Roe.

    Alito acknowledges that to overturn the right to abortion, it would have to be “egregiously” wrong, “a serious matter.” So, he unloads in the most disrespectful way on retired Justice Anthony Kennedy and the 15 other Justices who — over the last 50 years — wrote, applied or reaffirmed Roe v. Wade and Planned Parenthood v. Casey.

    But Kennedy was not only the co-author of Casey. He was the mentor of Justices Neil Gorsuch and Brett Kavanaugh. Without him, they almost certainly would not be members of the court today. And it is now painfully clear that if they sign the leaked draft, they will destroy Kennedy’s judicial legacy. They should have second thoughts, and third, too…

    Alito’s untenable attack on the justices who recognize unenumerated liberty rights

    In his leaked draft, Alito repetitively claims that Roe’s “concocted” conclusions were “far outside the bounds of any reasonable interpretation” of the Constitution, “ignored or misstated” the history, “usurped the power to address [the] question of” abortion, and were an “abuse of judicial authority.” He piles on by saying that Roe’s “unfocused” analysis “ranged from the constitutionally irrelevant” to “the plainly incorrect.” He also insists that Kennedy’s Casey opinion “perpetuated Roe’s errors,” and “went beyond this Court’s role in our constitutional system.”

    Stooping to such extreme hyperbole does not make it true. Joining it would unjustly impugn the integrity and thoughtfulness of many well-respected justices — conservatives and liberals alike — whose decisions fall squarely within the long-recognized and accepted understanding of our Constitution.

    To put Alito’s attacks into perspective — many of which more accurately apply to his own leaked draft, not Roe or Casey — if there was ever a judicial Hall of Fame of the most eminent and conscientious justices, most of the judges he takes down in his draft would be unanimous selections. Alito’s hubris is boundless. Ten of the targets of his ire are Republican appointees, including Justices Kennedy, O’Connor, William Brennan, Potter Stewart, Lewis Powell and John Paul Stevens. The other six, Democratic appointees, include Justices Thurgood Marshall, Ruth Bader Ginsburg and three current Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan…

    Gorsuch testified at his confirmation hearing that Roe was the “law of the land.” He did not say it was one of the rarest of cases that should be overturned. Nor did Kavanaugh when he called it “settled law”.

    Will they sign their names to overturn Roe and Casey? Will they sign their names to characterizing Kennedy as not just egregiously wrong, but as a “usurper” who “abused” and improperly “arrogated” judicial authority on one of the most important questions ever to come before the court? Will they sign on to such baseless assertions about the justice they worked for and who played such an important role in advancing their careers?’ -TheHill.com

    Odds improving that old Justice Alito, not a young clerk with a future, is the leaker.

    DCSCA (f78a88)

  57. Our esteemed host concluded:

    My guess would be that all of the justices are eager to see the leaker rooted out and made into a particularly nasty public example. If they fail to do so, it will have huge implications for the possibility of this becoming commonplace, which would destroy trust inside the Court. Which is probably not at a high point right now anyway, but which needs to be in years going forward if this institution is going to work.

    We haven’t seen the dissents yet, but my guess is that, at least when it comes to justice Sotomayor, it will be strident and vituperative. If it turns out to be one of her clerks who leaked the draft, do you believe that she wouldn’t defend the clerk?

    The libertarian, but not Libertarian, Dana (651016)

  58. @58. Don’t believe a clerk w/a future did it. A zealous, impassioned, frustrated Catholic justice, not shy about making his POV known and adverse to be silenced- like at SOTU speeches- in career twilight did it to derail any efforts by the Chief Justice to dissuade the less younger, devoted newbies on the court, knowing full well the clerks of the more liberal justices would be instantly suspect.

    It’s deviously clever; worthy of a Pope, circa 1285. It’s all on Bureaucrat Alito; it was his paperwork to keep track of.

    Justice Alito Cited a Few Cromwellian Nightmares In His Draft Opinion
    Maybe we can do better for legal theory in 2022 than a guy who practiced law under Charles I.

    https://www.esquire.com/news-politics/politics/a39918468/alito-draft-opinion-roe-citations/

    DCSCA (2a0a36)

  59. DCSCA (2a0a36) — 6/3/2022 @ 2:34 am

    It’s all on Bureaucrat Alito; it was his paperwork to keep track of.

    Preliminary drafts are circulated. A justice assigned to an opinion needs others to agree or make proposed revisions. If they cannot reach agreement or the other justice has a point he wants to make he writes a concurring opinion. And there are also dissents.

    This was not stolen out of Justice Alito’s chambers. It is a completed worked opinion.

    That’s the problem for the Supreme Court. They need to circulate opinions. And usually, it goes to all nine. I don’t know if it might also go to a printer. They certainly must have sent it to some sort of a printer before email became common and itt is probably still that way.

    Sammy Finkelman (b434ee)

  60. @60. Conjecture. You have no idea if it was stolen of not– or left it in the Porcelain Reading Room– nor how may copies of the draft existed– but certainly sensitive government information is tracked/tagged/counted etc. Making excuses for bureaucratic sloppiness doesn’t cut any ice. Alito’s draft; Alito’s responsibility to tag and keep track of. If this was SCOTUS Inc., he’d be fired- or worse, transferred to the Oklahoma office.

    DCSCA (a51ee4)


Powered by WordPress.

Page loaded in: 0.1607 secs.