July 9, 2012

Someone on the conservative side of the Supreme Court "wants us to know that they’re pissed off, and they want us to know why."

Orin Kerr deduces.

But why were they so pissed that they immediately leaked? You'd think these characters would have more self-control. I'd like to suggest that it was controlled. These smart guys think fast. They made a cold calculation. There's an effect they seek — they had a political strategy — and it's simply most effective if it's put in motion at the point when everyone's involved in trying understand what happened. That's my speculation. The speculation that they are not hotheads. Which would require changing Kerr's first "know" — in the quote in my post title — to "think."

Here's what Kerr says:
If you leak to [journalist Jan] Crawford with the spin that Roberts’ decision was illegitimate, and then the mandate opponents pick up that theme and run with it, perhaps that view will gain some traction in the legal world and will help out another challenge in the future. Or perhaps there’s a smoking gun that explains what Roberts was thinking that hasn’t been made public yet. Or perhaps the health care cases just made people act strangely. It’s hard to know.
Are Justices "people"? They live in such a ridiculous environment that it's hard to know what counts as strange. It's a strange way of life.

(And yet we trust them! Presumably, we trust them because they're following some process we regard as legal, even though we don't really believe they do, and we're reduced to complaining about how they don't or positing theories that legitimate something else that we think they might do but that we can't articulate in a form that actual people — people people — can swallow.)

25 comments:

Dan said...

If these justices were so pissed why didn't they leak the results of the vote on ObamaCare before it was released?

Bob Ellison said...

Sausage and inside baseball. Why argue about how it happened? Judge what happened.

Jay Retread said...

Let it go folks. Republicans will never have the political will to repeal the pre-existing condition clause, hence they will never get rid of universal healthcare. That is why they wanted this Supreme Court to take an activist role and do what they can not.

7/9/12 8:21 AM

Jay said...

Who is this "we"?

I don't trust them, or anyone in government.

Hagar said...

I think Roberts made his decision based on his assessment of the current political situation and what he thinks will happen next, and that is what they are pissed about.
Roberts lives in our world (or at least has been visiting); they in theirs.

ndspinelli said...

I understand when non baseball fans don't appreciate inside baseball talk. Hopefully Court Trekkies do likewise.

edutcher said...

Maybe it's just a message to the Romster, "Send us some reinforcements".

Ann Althouse said...

And yet we trust them! Presumably, we trust them because they're following some process we regard as legal

Madame, Professor, nobody's bought that since the Court outlawed school prayer.

Jay Retread said...

Let it go folks. Republicans will never have the political will to repeal the pre-existing condition clause, hence they will never get rid of universal healthcare. That is why they wanted this Supreme Court to take an activist role and do what they can not.

Yeah, it's so popular, people are rioting in the streets for it.

FUD.

It's all they've got left.

sydney said...

"And yet we trust them! Presumably, we trust them because they're following some process we regard as legal"

Madame, Professor, nobody's bought that since the Court outlawed school prayer.


For me, it was Kelo.

cubanbob said...

The real lesson for republicans is never, ever, ever nominate a stealth candidate for the court. Take the filibuster and push for a real conservative or libertarian.

KJE said...

If I were one of the 9, I think I would develop assumptions and beliefs about the other 8. I would definitely spend time thinking about my vote or holding in a matter presented, and the likely reaction or votes of my peers.

I'd also think that I know ahead of time whether or not I would be leaking anything to try and damage one of my peers. I would likely know this weeks ahead of time.

leslyn said...

This whole "leak" could be seen as just a pissing match--well just a pisser from one side of the Court, and I hope that's all it is. But it's unprecedented, and raises questions of a faction of the Court trying to influence the other branches of.government, and the people in general, by non-judicial means.

What the hell are the leaker(s) trying to do? What's the result they intend?

It bothers me that I see politics v law at play--and that makes me look at Egypt. There, it may all come down to who can control the military to support their decision--that is, if anyone can.

IMO, this is politics within the court reaching out to nullify its own majority decision. To nullify/undermine the respect of the Court's ability to "say what the law is." This is a horrible precedent.

Simon said...

This is the high court not high school. Yes, it hurts to lose a big case. Yes, it hurts to lose several cases at the end of the term. And yes, it would be inhuman not to feel sore and to go away and grouse to friends and family over the summer. But go away for the summer and blow off the steam; rest, relax, recuperate, teach a few classes, and come back in the fall wearing your big boy pants. This is serious business; there's no room for grudges.

Simon said...

Hagar said...
"I think Roberts made his decision based on his assessment of the current political situation and what he thinks will happen next, and that is what they are pissed about."

I see no reason to believe this. Roberts did in this case precisely what he promised to do at his confirmation hearings, and precisely what he has done in other cases. This is what judicial minimalism looks like. Roberts doesn't move further than he has to move to decide the case; look at his opinion in Wisconsin Right to Life and Scalia's furious response to it. The avoidance canon, on which Roberts rests, is a traditional and conservative doctrine that implements conservative concerns about the proper role of the courts; Roberts did almost the same trick in NAMUDNO, and not a single member of the court disagreed with it. (No, not even Justice Thomas, who dissented; he said that the Roberts opinion didn't avoid the problem.) As I explain here, disagreement with Roberts is understandable, but the outpouring of hostility from people who have little idea what they're talking about is uncouth.

Saint Croix said...

But why were they so pissed that they immediately leaked? You'd think these characters would have more self-control. I'd like to suggest that it was controlled.

My super-Machiavellian theory is that Ginsburg or Breyer leaked, in order to drive a wedge between Roberts and the conservatives. In other words some moby took this opportunity to inflame division on the other side.

I don't think they're that smart, actually. But maybe? They'd have to be devious enough to say stuff like...

Congress had never before in the history of the nation ordered Americans to buy a product from a private company as part of its broad powers to regulate commerce.

I have trouble believing that Breyer or Ginsburg would put it like that. Nor do I think Crawford would come up with that on her own. She was fed that line.

Also there seems to be stuff in the leak that could only come from Kennedy.

At least one conservative justice tried to get (Roberts) to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

I would think Roberts would remember that conversation and thus have a pretty good suspicion about who the leaker is.

And there's this...

Roberts then engaged in his own lobbying effort - trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as "arm-twisting."

I remember reading similar stuff about Casey, again with Justice Kennedy as the victim. There was comment that Kennedy was under pressure from Scalia and there was an attempt to bully Kennedy.

Oh no! It's just like fourth grade all over again!

It's that sort of detail ("arm-twisting!") that makes me think this is Anthony Kennedy. And so I reject the super-Machiavellian idea. I do not think the liberal Justices are smart enough, or corrupt enough, to play that game. I believe Justice Kennedy did it, out of anger and spite and ego.

And Kerr cannot spin this so this is a rational move by any conservative Justice. No, the dissent itself--Kennedy's dissent--is itself written in a spiteful way in order to embarrass the Chief. And the leak is just piling on. They're still trying to embarrass the Chief, while simultaneously defending their own behavior.

It's probably true that the dissent "was not a sign of sloppiness." It was a sign of anger. They wanted to use Roberts' work to embarrass him, and they did so even as stylistically it turned their own dissent into mashed potatos.

Simon said...

Saint Croix said...
"I believe Justice Kennedy did it, out of anger and spite and ego."

"How dare you! Don't you know that I'm the swing Justice? F*** you, John—I get to decide how these cases come out, not you."

Bender said...

Oh yes, we should all show a little more decorum and ho-hum couth when confronted with despotism and destruction of the rule of law.

Simon said...

Bender, perhaps that would be a reasonable claim if you were in fact confronting despotism and destruction of the rule of law, which of course you are not. You confront nothing more than a ruling that you neither understand nor agree with, written by a judge from whom you expected something else. How do you think people felt when Morrison v. Olson came out of Chief Justice Rehnquist's pen?

This is simply John Roberts doing what John Roberts has always done. Look at the cases that I cited above. He is a very slow-moving, incrementalist, minimalist, conservative judge. He never presented himself as anything else.

Saint Croix said...

I have called Kennedy an emotional jurist. And I do not think it's a bad thing to have emotions. In fact I suspect that overly intelligent people probably have higher rates of socipathy than normal people. They feel nothing! So better to be an emotional train wreck like Anthony Kennedy than write Carhart, which Justice Breyer correctly self-identifies as "cold or callous."

Indeed, my favorite Justice, Hugo Black, once got so angry at Felix Frankfurter he tried to strangle him.

I totally get that! If I was on the Supreme Court, I wouldn't twist Anthony Kennedy's arm, I would break the fucker off. They'd call the cops on me. I'd be going to jail, impeached in disgrace.

On the other hand, consider Justice Kennedy's opinion in Carhart II. I would say it's the most pro-life abortion opinion ever written by a Supreme Court Justice. And why is it so pro-life? Because Kennedy is so damn mad!

Kennedy quotes from a nurse who helped doctors do partial-birth abortions.

Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms—everything but the head. The doctor kept the head right inside the uterus…

The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.

The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp…


This is emotional stuff. Kennedy cites this testimony and a majority of the Supreme Court have signed onto it.

But look what this testimony does! It says that this abortion procedure kills not a "fetus" but rather a baby.

I believe this is the first use of the "baby" word in a Supreme Court opinion. And rhetoric is important as Orwell will tell you. So here is the Supreme Court acknowleding that a baby has been killed as result of Roe v. Wade and Casey. And the latter, of course, is Kennedy's own work!

Kennedy (or perhaps his clerk) is so angry that he doesn't even see how he's attacking his own opinion in Casey. Kennedy has not thought through his anger, or tried to figure out why he's angry. I think a lot of his anger is a feeling of betrayal. Here he upheld a bullshit opinion (Roe) and now the liberals are going to coldly describe infanticide outside the womb?!

Kennedy is angry because his illusions are shattered. And he's so angry his opinion proves too much. All he really needs to say is that "D&X is not in the Constitution." And yet what does he say?

He gives us graphic detail of the homicide of a baby outside the womb. He's making the Supreme Court look bad. (Which is similar to Kennedy's m.o. in the Obamacare case).

Anger, of course is dangerous. It would be far better if Kennedy was righteously angry (for instance, angry at the killing of innocent babies). Is that why he's angry? Or is he angry at O'Connor for making him look bad?

If the former, he would want to overturn Roe v. Wade asap. If the latter, then he's just using this story of a baby's homicide in order to attack his enemies and make them look bad.

Bender said...

You confront nothing more than a ruling that you neither understand nor agree with, written by a judge from whom you expected something else

Would it be uncouth of me to tell you not to be such a condescending prick?

Those who have bothered to read the opinion, as well as those who bother to actually practice law, are right to criticize Roberts.

Simon said...

Bender, I never said that there was anything wrong with criticizing Roberts' opinion—and in my post linked above, I criticize it myself. "[D]isagreement with Roberts is understandable," I said above, "but the outpouring of hostility from people who have little idea what they're talking about is uncouth." It is the tone of some the criticism, especially but (sadly) not exclusively from laymen who have little to no understanding of the issues involved, that is uncouth and unjustified. It is the hysterical overreactions that do not offer reasoned criticism of the Roberts opinion but rather equate it—more precisely, equate the vote that occasioned it—with "despotism and destruction of the rule of law" and so forth.

Richard Dolan said...

Think what you will about the merits of CJ ROberts' opinion, I'd take all of these stories about discord at the Court with a large dose of caution. The Crawford articles and the commentary they have inspired don't make a lot of sense given the nature of the institution she is writing about. My guess is that there may have been a comment or two that a justice made about the Roberts vote-switch, but that the rest is just journalistic hype.

The fact is that the justices disagree all the time -- they're all particularly used to disagreement about fundamental principles of constitutional law. The idea that CJ Roberts (or any other justice) has to 'justify' his vote to his presumed soulmates, or explain it in any terms other than what he chooses to write in an opinion, is very strange indeed. In an institution famous for the independence of its members, that's not a standard that any other justice would likely be willing to have applied to himself.

ObamaCare was certainly an important case -- more important than most even -- but the Court's docket has lots of important constitutional cases on it every term. And it will still take 5 votes in the cases on the Court's upcoming docket starting in October to come up with a majority. If any other justice got his nose out of joint because of Roberts' vote on ObamaCare, it is quite likely that everything, noses and all, will be back in their usual place on the first Monday in October.

David said...

Perhaps the leaking is being done by the left to sow dissuasion among the conservative ranks on the court.

I realize the "journalist" involved is known for her sources among conservatives, but that's what makes the whole plot so credible.

leslyn said...

Bender said,

Would it be uncouth of me to tell you not to be such a condescending prick? Those who have bothered to read the opinion, as well as those who bother to actually practice law, are right to criticize Roberts.

Bender, ever since you were disappointed by the decision you have spoken like an uncouth, condescending AND self-righteous, snide prick.

What's wrong with you? And don't blame it on the court, it didn't force you to choose such venom. Where's the Catholic you?

Simon said...

David said...
"Perhaps the leaking is being done by the left to sow dissuasion "

Surely "dissension."

Saint Croix said...

I talk about that above. Either it's the smartest and most evil liberal moby in the universe, or Kennedy really is so damn mad, your pick.

We know Roberts isn't the leaker.

I see Scalia as a Kennedy mocker, not a Kennedy secret fan.

Thomas might have been polite enough to be confirmation leaker #2, without actually saying anything.

Alito? The "not true" man. That's Alito on a rampage, when he says "not true" under his breath. I googled Alito's personality and I got this insight, which cracked me up.