Said Harvard law professor Jack Goldsmith, author of "Power and Constraint: The Accountable Presidency After 9/11," quoted in The Washington Post on December 6, 2012, in a column titled "Why we don’t need another law against intelligence leaks" (by Leonard Downie Jr.).
And here's a CNN piece by Princeton history professor Julian Zelizer, "Why Washington is leaking like a sieve," published May 31, 2017:
Trump, who has called leaks “criminal action, a criminal act,” no longer expresses the kind of sympathy for leakers that he did during the campaign, when he praised WikiLeaks for its publication of emails relating to Hillary Clinton....
Leaking information can be extremely dangerous to national security. It can undercut the ability of government to function, it can generate a dysfunctional culture of distrust in government, and it can put lives in danger. Yet it is important to remember that some leaks have been vital to discoveries that protected and strengthened our democracy. These were leaks that resulted from members of the government who were frustrated and frightened by what they saw happening in the halls of power.
Most famous leak The most famous leak of all came in 1971: the Pentagon Papers.... In 2005, the Sunday Times of London published an article based on notes from a meeting of British Prime Minister Tony Blair’s national security team, held before the war in Iraq, where officials were concerned that President Bush was basing the operation on faulty evidence about weapons of mass destruction.... Edward Snowden has garnered [yes, garnered] praise from many on the left and some on the right for his decision to leak the evidence that exposed a massive government surveillance program....
Not all leaks have been so virtuous....
There are times when our democracy depends on leaks to learn what is going on in the inner sanctums of Washington....
None of that was about the Supreme Court, but please consider the larger picture as you analyze the leak from the Supreme Court.
I'm reading this NYT article, published today, "As Leak Theories Circulate, Supreme Court Marshal Takes Up Investigation/Not since Bob Woodward and Carl Bernstein refused for decades to disclose the identity of their Watergate source has Washington been as eager to unmask a leaker."
Dan Epps, a law professor at Washington University in St. Louis who clerked for former Justice Anthony Kennedy in 2009 and 2010, said... "Some of [the Justices] might just be a little bit wary of subjecting their clerks and their staff to the kind of jurisdiction of somebody else who’s not in their chambers.... My guess is, you know, some of them would just say, ‘I will have a conversation with my clerks personally.’” ...
“There’s no criminal statute that I know of that makes this illegal — so what’s the point in bringing outsiders in?” said Paul Schiff Berman, a law professor at George Washington University who served as a clerk for Justice Ruth Bader Ginsburg.
Speaking of Bob Woodward and the Supreme Court, I remember when his book "The Brethren" came out. So many revelations about the inner workings of the Court! Later, we found out that Justice Potter Stewart was the main source — the leaker. From the previous link (to Wikipedia):
The book's sources are highly critical of Burger as Chief Justice, especially in comparison to his predecessor, Earl Warren. Burger is described by other Justices as pompous, devious, and intellectually mediocre. The book is also critical at various points of William O. Douglas, who is portrayed as having gone from one of America's greatest jurists to a "nasty, petulant, prodigal child" who was overly political, and is also occasionally critical of another liberal stalwart, Thurgood Marshall, for his alleged intellectual laziness and apathy.
That's a lot more revealing than a draft of an opinion! What good did it do? What purpose was served?
"Leaks can serve a really important role in helping to correct government malfeasance, to encourage government to be careful about what it does in secret and to preserve democratic processes."
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122 comments:
I think we can all agree leaks are noble when they benefit our side and terrible when they benefit theirs.
"Leaks can serve a really important role in helping to correct government malfeasance, to encourage government to be careful about what it does in secret and to preserve democratic processes.""
Leaks can serve as a really important tactic of the seizure and acquisition of POWER by subversion of opponents and any other means necessary.
Andy McCarthy is asking that the decision be published now since the purpose of the leak was intimidation. Waiting until June allows more intimidation. The left has not been sane for years, at least since 2016.
Seriously? This is the best you can do? Shame!
I think everything should leak out legally if someone wants to leak it. Our government can't be trusted....at all. Of course, you see the hypocrisy in this issue on both sides unfortunately- if this were a 2nd Amendment case where the leaked majority opinion argued for the restriction of gun rights, the arguments against/for leaking would make a 180 turn on both sides.
"Thurgood Marshall, for his alleged intellectual laziness and apathy."
I know a racist when I see one.
Theyve already broken two laws
Sunlight is a dandy disinfectant, until something actually critical to national security is leaked, and unintended consequences take over. In the instant case, though, the use of it to generate panic in the service of protests is just another political ploy in advance of the midterm elections.
“ Andy McCarthy is asking that the decision be published now since the purpose of the leak was intimidation. Waiting until June allows more intimidation. The left has not been sane for years, at least since 2016.”
What if the purpose of the leak was to lock in the original vote by raising the cost of switching? Then Andy’s solution aligns with the leaker’s.
Mark Felt ("Deep Throat" in the Watergate history) leaked in order to get revenge on the Nixon Administration because he was not promoted to the position of FBI Director after J. Edgar Hoover died.
“ Seriously? This is the best you can do? Shame!”
That’s what’s called a low effort comment.
Stop wasting my time
The premise of the argument is that leaks can bring external pressure to the (otherwise secret) process. But it's a natural and intended effect that the immediate subject matter of that process will be disturbed in some fashion (e.g., plan is disrupted or must be changed)
If the process is an ongoing one, there might be merit in that. But when the process is a particular judgment in a particular legal case, you're interfering with the rights of the litigants in a way that (I think) can't be justified in the name of process improvement.
“ I think we can all agree leaks are noble when they benefit our side and terrible when they benefit theirs.”
Yes, that’s why I am calling you to a higher ground.
Ask Justice Breyer's law clerk Elizabeth Deutsch why the draft was leaked.
Althouse: "What if the purpose of the leak was to lock in the original vote by raising the cost of switching? Then Andy’s solution aligns with the leaker’s."
Riiiiiight.
Someone who wanted to lock in a conservative ruling leaked this to ...... Politico.
And Politico was all over it......
Pull the other one.
The posted quotes have nothing to do with the SCOTUS leak which reflected both disloyalty to the institution and a lack of integrity. The Court has not yet acted.
More importantly, the BS about the beneficial effects of leaks presumes an honest media. When the dominant leftmedia pimps for the Democrats and suppresses material unfavorable to Democrats, all leaks published by them are suspect.
The government does way too much in secret, IMO, but I think there's a difference between leaking something the public would otherwise never know and needs to know versus leaking something that will be officially announced in a couple months for the purpose of derailing the normal and necessary process.
There's a difference between a leaker who exposes government officials who are trying to get away with something and/or to deceive the public versus a politically motivated leak against government officials acting in good faith.
Leaks are extremely important as a means to keep govt power in check....also, lets execute Julian Assange!
--Every leftist
Free Julian Assange then.
Leaks have the same veracity problem as every other government communication, and are subject to the same confirmation bias as any “news” story. The difference is in the amount of verifiable facts presented. Most official and unofficial government communications are 100% fact-free lately, mirroring the “news” business shift to all-opinion all the time.
“ Seriously? This is the best you can do? Shame!”
That’s what’s called a low effort comment.
Stop wasting my time
You've completely ignored all of my previous comments on this subject, and frankly I expected you to do so again.
Your pro-death allies have already called for protestors to picket the houses of the Justices. Are you fine with that?
Your best argument in defending the link is to declare that leaks help the democratic process? In a case in which the whole point is stop the return of an issue to the democratic process?
I've asked before and I'll ask again...is there any bridge too far when it comes to defending the "right" to kill the unborn? I don't expect an answer.
"Thurgood Marshall, for his alleged intellectual laziness and apathy."
I know a racist when I see one.
Actually Marshall's performance on the Court was rather poor, and eventually he had to be forced out.
He was a very effective civil rights lawyer, but crap as a judge. Name his most important opinion on the Court.
The law clerks at the Court are employed by the Court. The Justices may select their law clerks, but the Court signs their pay checks. Each law clerk owes fiduciary duties of loyalty to the Court as well as to their Justice, and that includes a duty to maintain confidences. The Chief, as the head of the Court, would be well justified in instructing all of the law clerks to cooperate with the Marshall’s investigation, including providing interviews and access to all of their text and email communications, upon penalty of dismissal for failure to cooperate. I hope he does that.
Althouse: "What if the purpose of the leak was to lock in the original vote by raising the cost of switching? Then Andy’s solution aligns with the leaker’s."
This is a lefty talking point. Nobody believes this because there is no cost for switching. Meanwhile, Democrats and their consorts speak of impeachment and court packing as the cost of overruling Roe.
Additionally, there is the matter of character. Is the leaking more in keeping with what we know, in general, about the character of pro-life or pro-abortion people. (I use "character" here because if I use "morality" the answer is too easy.)
judy miller was jailed for less, specially since they already knew who had leaked the memo,
I think leaks by law enforcement should be considered official corruption when used to intimidate or embarrass targets, or curry favor: see, e.g., Richard Jewell, and “Hey NYT, guess what — we’re gonna have a pre-dawn raid at James O’Keefe’s house”.
There is a legitimate issue as to whether SCOTUS comms and servers are secure.
Leaks can serve a really important role in helping to correct government malfeasance
This thought presumes there is no other re-course, and I can't believe that.
Most of my employment gigs included non-disclosure agreements (NDA), and/or government security clearances. I'm pretty sure those agreements/clearances outlined ways to report employment/government malfeasance.
Tell me again why Justices are appointed for life instead of undergoing elections?
Does a pre-publication leak like this have any of the redeeming virtues of transparency touted in the article?
I believe that Assange once said that this was the purpose of Wikileaks: to make it harder to governments to function secretly. For him, a feature, not a bug.
Here this seems to undercut the core purpose of the Supreme Court. They need to be able to confer and work out their decisions. That's not a nefarious thing to be revealed, it's what they're supposed to be doing.
Do you want Supreme Court Justices to become politicians, watching every word they say ever? I don't.
If nothing else, the principals in the case have a right to a fair hearing. Disrupting the process before its completion by revealing unsettled judicial deliberations through an intentional act of sabotage takes away that right.
Shorter article: (Don't Fear) The Leaker
More cowbell!
Obstruction of justice is one potential crime committed by the leaker.
Even if that's not a winning hand, put them in jail for 18 months or so while we decide. Democrats love precedent, right?
I agree that the justices very well may be reluctant to participate in a wide ranging investigation, which could be more revealing than the draft opinion. And the reveals are more likely to be embarrassing for the conservative justices, because embarrassing the progressive justices doesn't help the current administration, FBI or biased journalists in the legacy media. In other words, I can understand why the justices wouldn't trust the Enemy of the People with that information.
I find it unpersuasive that releasing in advance an opinion that by normal process would be released in the near future is an act of transparency rather than an act of intimidation. In fact, I think it's a blatantly self-serving suggestion. Look, squirrel!
Frankly, I expected better.
Leaks of trust, the lubricant that makes human exchange possible, can bring the engine of justice to a grinding halt. I suspect the filtration system for the intake of lubricant will be adjusted. I hope the effects of this breach are not terminal to the republic.
Seems to me that all SCOTUS authority stems from the great respect Americans have for the Judicial role in making peace by finality of their decision.
Then the early release has actually had that effect…already. Now it is too late.
Somebody leaking the contents of a diary belonging to the niece of the president is so important that the FBI has to investigate and the homes of reporters searched.
An unprecedented and comity destroying leak of a draft Supreme Court decision is no big deal, and is in fact a good thing, because it defends the democratic process of preventing an issue of being returned to the democratic process.
We have to leak a Supreme Court draft in order to defend the democratic processes of an institution that was designed to resist and limit the effects of democracy.
I'm sticking to my theory that the leak to Politico came from the WH. They were given a copy of the draft opinion by someone at SCOTUS in order to give them a heads up and for left-wing groups to prepare for it, and decided to leak it now because they needed a shift in the narrative and something that would rally progressives to the admin.
"We had to destroy the village in order to save it."
I think there are really two kinds of leaks - one being the release of actual existing documents (DNC e-mails, Alito's draft opinion, etc.), the other being anonymous insider recollections/recreations of conversations of which they may or may not have been a part, may or may not have first hand information, and which may or may not be complete and accurate, with the public having no way to judge the completeness or accuracy of the leaked story.
The second of these strikes me as the worse of the two and the reason for Trump's "no longer express[ing] the kind of sympathy for leakers that he did during the campaign." Of course, his recollection of events and willingness to describe them accurately and completely is also suspect given the inherent problems with memory and the built-in bias, but at least we knew it was him when he expressed skepticism.
To be fair, Potter Stewart didn't know what leaks were, not even when he did them.
The article may be part of the campaign to turn the culprit from a leaker (which can have negative connotations) to a whistleblower (which usually has positive connotations). The authors do use the word "leak," but they may be trying to portray leaking as a civic-minded or patriotic activity, rather than a nakedly political one.
If this leak came from either executive or congressional spying, a dire issue of separation of power is at stake. If Shiff, the head of the House intelligence committee, wants no investigation, that is worrying in itself. We cannot say that there should be no investigation.
Apples and oranges. This was a document whose final version was intended to be public within a couple months. This isn’t revealing any type of internal secret or misbehavior
Yes, that’s why I am calling you to a higher ground.
As am I -- just not directly. I've been taught that calls to occupy a higher ground are always perceived as bullshit, so that leaves oblique strategies.
10:39 Drago for the win.
The value of a leak purely depends on the integrity of the leaker versus the institution. There are noble leaks serving the common good, and there are self-serving or party-serving leaks that support trench warfare.
If most politicians today had moral standards (ha ha) or even paid lip service to any set of moral standards, then there'd be moral arguments to be made. Our institutions were based on the Christian "Golden Rule," but the culture long ago abandoned its criteria for Hollywood-style Act III "villain fails" retribution or winner-takes-all closure. I doubt that most even know what the Golden Rule means, and non-Christian would have no need to know.
So, we have a Christian assumption hang-over without a clear or coherent replacement for the old standards. Return it or replace it with another concept, but do something accepted by all. Constant leaking leads to an old Roman style intrigue and assassinations.
Duke Dan already said what I came to say. The fact that this was a leak of something that was intended to be made public, and not a leak of something that was intended to be kept secret, is a significant detail.
It doesn't compare to the "saving democracy" type of leaks at all.
“ As am I -- just not directly. I've been taught that calls to occupy a higher ground are always perceived as bullshit, so that leaves oblique strategies.”
It’s not a call for civility, but I am suspicious of any call to apply neutral principles too. Nevertheless, for myself, I do try. But you don’t have to believe that.
Prof is the eternal-feminine of Bloggia, drawing us ever upward.
Leaks bother me less than boasts from the Organs of State Security about their all-seeing and all-knowing gaze (ref. Ukraine). The worst part is just how intrusive and controlling so many Americans seem to want those Organs to be, here in the Homeland of the Insecure.
I'm just shy of The Big 69 (I share a bd with Irving Berlin, Salvador Dali, Phil Silvers, and Louis Farrakhan), and as an old W/white man without expectation of grandkids, I am content to leave the question of abortion to the wisdom and decency of those with skin in the game.
(Personally? I find the idea and practice repugnant on a visceral level. Criminal? You decide.)
There is no malfeasance in this situation though. Sure plenty of people don't like the opinion, but nothing wrong happened in its drafting. It is also incorrect to lump all governmental leaks under the same category. Knowing what the executive or legislature is up to is one thing. They are supposed to be politically accountable. Courts are not. Federal judges are given lifetime appointments precisely to insulate them from political pressure.
Regardless, the headline referencing the Watergate leaks seems to be an emotional cue for readers to feel that this is a good leak and people should be happy it occurred. I await the headline that references Plessy v. Ferguson and states that sometimes it is good to overturn precedent.
these people, from the pool of leakers, deutch, or the other guy, don't believe this country is legitimate, this is why they were fine with the wholesale destruction of cities, twitter's soon to be ex ceo, doesn't believe in the bill of rights, or any other negative liberty,
to correct government malfeasance, to encourage government to be careful about what it does in secret and to preserve democratic processes.
Okay, but there was no government malfeasance, only the normal process.
The Justices were operating behind closed doors, not "in secret" which implies they were hiding something. The process they were following was not undermining democracy.
“ This was a document whose final version was intended to be public within a couple months. This isn’t revealing any type of internal secret or misbehavior.”
Do you think the leaker agrees? I would guess that the leaker thinks either: 1. The destruction of a treasured right is misbehavior, or 2. Throwing away the prime opportunity to save millions of lives is misbehavior.
The leak isn’t to cause the opinion to go public sooner. It is, I presume, to affect a decision making process still ongoing.
Lots of good comments that align with what I want to say.
Leaks are not the same as transparency. They lack context, usually deliberately. In this instance we have no idea if this is the polished draft ready for release or just an initial but largely complete working document. We don't know if it was subsequently scrapped for a less ambitious opinion. It's also not uncommon for a leak to be absolutely unverifiable or even eventually provably false, many examples of which can be given from the Trump administration (Russian bounties, not visiting the WWI graveyard, etc).
It ain't like the Supreme Court operates in a total vacuum. The 3WHH gang at Powerline (Hayward, Lucretia, and guest John Yoo) made a pretty spot on prediction of this opinion merely after listening to the Dobbs oral arguments, down to Steve making (and then forgetting) a prediction that one of the liberal justices would leak about the deliberations or opinion.
Do you think the leaker agrees? I would guess that the leaker thinks either: 1. The destruction of a treasured right is misbehavior, or 2. Throwing away the prime opportunity to save millions of lives is misbehavior.
The leak isn’t to cause the opinion to go public sooner. It is, I presume, to affect a decision making process still ongoing.
As I said, obstruction of justice.
Hmmm now I’m curious as to what could happen if the ruling later contradicts the document that was leaked. I can just imagine the endless theorizing that would follow about whether or not it was the leak that changed the decision.
I think Mr. Wibble is on to something. Heads up to the White House or to legislators is something that has happened before. Leaks to the press from the court never.
The leak isn’t to cause the opinion to go public sooner. It is, I presume, to affect a decision making process still ongoing.
Which is a good thing and should be encouraged...right? Just forget that it completely negates the intent of the Founders in creating the Court, and 250 years of precedent, we need to protect the "right" of women to kill the unborn.
Whistleblowers are important when the government or someone in government is doing something illegal or, at minimum, unethical. I do not see how a draft Supreme Court ruling would qualify. There are plenty of Supreme Court rulings that I actually think are extremely bad and in some cases a corruption of the institution, but I see no justification to leak a draft ruling for any of them. The ruling will be public eventually as part of the normal operation of the court. The Supreme Court needs to be able to deliberate in private to do their jobs properly, and interfering with that is not helpful for the institution specifically or the country in general. Now if the Supreme Court was being paid off to rule a certain way or if the justices were stating that they were violating the Constitution but they don't care, then that is worthy of a leak.
If the justification is anything is acceptable to get a certain outcome, then war it is. That's how you settle matters when "no" is never the acceptable answer and there are no rules.
There aren't any bright lines to be drawn. Whether a leak is good or bad is case by case. But there are guides that shouldn't be hard to agree on:
Is the leaker exposing a crime?
Could the leaker be retaliated against if they follow official channels?
Is the culpable person in a position to bury it if they follow official channels?
If the answer to all three questions is no, then it's probably not one of those justifiable leaks the above writers were trying to justify.
The leak we are talking about here is not a close call--the answer is a resounding "no!" to all three. The leak was rank party-before-country "my cause at all costs" partisanship.
The leak isn’t to cause the opinion to go public sooner. It is, I presume, to affect a decision making process still ongoing.
Which is why it doesn't meet the standards layed out in the post as a morally justifiable act.
It doesn't really matter what the leaker thinks. People are able to rationalize all kinds of things. This was an attempt to hijack the decision by pointing the gun of a mob at the Justices.
@Mike S: I agree that that Twitter thread is compelling. But if I wanted to leak something so someone else would be blamed, I would certainly be more comfortable doing it if there were someone who was easily traced to the leak, as that Clerk apparently is. How easy to frame!
The leak gives hope to the recognition of the constitutional rights of "the People" and "our Posterity" to abort the rites held for millions of lives globally, annually, for social, redistributive, clinical, and fair weather causes, and to preserve the dignity and agency of both women and men. That, and to expunge the Twilight Amendment, which has been the source of diverse mischief over the decades since its establishment. Democracy and demos-cracy are aborted at The Twilight Fringe.
If a laughably pathetic excuse can be found, these people will find it and use it.
most of the leaks were outright lies, like the steele dossier, and other such elements,
yes it's too stigmatize the discussion, some topics cannot be spoken off, others must be affirmed 100% at the risk of violence,
Isn't there a difference between being a "whistleblower" or a "leaker". It seems to me that a whistleblower is someone who is willing to take personal risk for what they believe in to protect against malfeasance/dishonesty and a leaker is somebody who is upset at the way something is happening and wants to tattletale while hiding behind anonymity. Whistleblowing seems righteous and leaking seems salacious.
Everybody knows the motive for the leak. Intimidation of the majority.
For example.
The activists are organizing under the moniker "Ruth Sent Us" and have published the supposed home addresses of Justices Amy Coney Barrett, John Roberts, Samuel Alito, Brett Kavanaugh, Clarence Thomas and Neil Gorsuch.
"Our 6-3 extremist Supreme Court routinely issues rulings that hurt women, racial minorities, LGBTQ+ and immigrant rights," the group's website reads. "We must rise up to force accountability using a diversity of tactics."
"Diversity" means riots.
"...a dysfunctional culture of distrust in government..."
There is NO SUCH THING as "a dysfunctional culture of distrust in government." Person would have to have the mind of a loaf of bread to even conceive the possibility.
WaPo reminisces about leaks past, present, and progressive with regrets.
Utilitarian analysis: the leak is justified if its resulting benefits outweigh the negative outcomes. Intentions have no value.
Positive outcome: because this issue is so contentious, there can’t be an objectively positive outcome. It could result in a justice changing their position toward a good or ill outcome, no matter which side of the debate you are on.
Negative outcomes: internal openness of court damaged or destroyed; potential harm to justices; greater politicization of the court’s role (packing or impeachment).
Analyzed neutrally, the harms caused by the leak clearly outweigh any benefit.
"Somebody leaking the contents of a diary belonging to the niece of the president is so important that the FBI has to investigate and the homes of reporters searched."
Are you arguing this process be applied here?
I'm doubtful the Justices would want their emails, texts, and all communications prowled through by investigators.
"Leaks can serve a really important role in helping to correct government malfeasance
5 SCOTUS justices voting in a way you don't like is not "government malfeasance"
to encourage government to be careful about what it does in secret
The end result of this is a public release, the diametric opposite of "what [the government] does in secret"
to preserve democratic processes."
Roe and Casey were assaults on the democratic process, whereas this is a restoration of them
So none of these apply to the leak
The February date is the key. Do you think there are later drafts where the message has been refined? This is probably the strongest version in the system. How can we expect candor in internal discussions if the unfinished work product is going to be leaked mid- process?
Althouse has her own way of processing this stuff, but the betrayal here by someone inside the Court is of a very high order. This is a very bad development. I look forward to the revelation of the leaker.
“ This was a document whose final version was intended to be public within a couple months. This isn’t revealing any type of internal secret or misbehavior.”
Do you think the leaker agrees? I would guess that the leaker thinks either: 1. The destruction of a treasured right is misbehavior, or 2. Throwing away the prime opportunity to save millions of lives is misbehavior.
1: Abortion is the taking of a human life. So your #2 would only be valid by someone who supports the document being release
2: SCOTUS doesn't create "treasured rights". All the Roe defenders are talking about "a right that's existed for 50 years", which means they all admit that Roe was an exercise of raw judicial power, NOT a legitimate decision based on the Constitution, law, and history
"My body, my choice" was junked by the Left last year, with all their "Covid vaccine mandates". So all you're left with is a "treasured right" to kill your baby after you screwed around without protection or planning.
Which is not an actual right
Any juror who leaked information about the deliberations of his or her jury, and was caught should, and I suppose would, face significant penalties. And the penalties might be particularly harsh if the leak was clearly done to influence the actions of his or her fellow jurors, or to provoke a mistrial. Does anyone disagree that that ought to be the case? Why should things be different when a court is deliberating the outcome of a case? Shouldn’t the Supreme Court at least have to live up to the standards everyone else is asked to meet? Why would such conduct become acceptable if done by a judge or the clerk of a judge instead of a juror?
I don’t think the Pentagon papers case is a good comparison to this leak. That case turned on the public need for the free flow of information. But we all have a stake in the integrity of the justice system, a stake that’s quite likely to take the form of being defendants or jurors. That dimension of probable active participation was lacking in the earlier case; most of us are never going to be senior government bureaucrats or New York Times reporters. Frankly, this reminds me more of the HRC email server scandal. Both were about over class members using class privilege to take action that would get ordinary rubes sent to jail.
I do understand that it isn’t actually salacious. But the fervor when there is a leak or an attack against somebody or something that a group has come to despise seems to be approaching sexual in nature. There are some in news organizations that look to be near orgasm when they report on what will be damaging to their opposition.
I think both sides experience it but one is much more aggressive in displaying it.
https://www.msn.com/en-us/news/opinion/what-alito-got-right/ar-AAWVqhr?ocid=BingNewsSearch
First, it’s important to understand the question before the Supreme Court. It is not “Should American women possess a right to abortion?” but “Does the American Constitution protect abortion rights?” The distinction is of paramount importance. The Court’s job is not to determine which rights we should possess but rather the rights we do possess.
As we all seem to agree that abortion is NOT a right granted by the US Constitution, but one invented by members of SCOTUS in 1973, we all agree that Alito's position is the correct one.
No?
Is this all ya got, toots?
I'm gonna go buy some PANTS.
So ’tis with Christians, Nature being weak, / While in this world, are liable to leak. (William Balmford, The Seaman’s Spiritual Companion)
The solution for the Supreme Court to avoid having leaks by clerks is to fire all of the current clerks in one go and replace them all with graduates of non woke law schools.
I’m old enough to remember when leaks were said to be a menease to the environment. Water leaks. Gas leaks killed people, not just women.
There have been leaks which led to US foreign assets being killed. There are leaks that lead to whistle-blowers getting punished, doxxing critics of the gov, etc. Leaks can also violate privacy (tax info of private citizens has been leaked--usually of republicans), or be deceptively edited.
On the other hand, actual FOI requests are routinely slow-walked or stone-walled altogether.
Just how popular abortion is remains to be seen. Important questions to answer.
The Left has been normalizing threats to the court for several years. Not only editorials, but threats by members of congress, mobs outside the courthouse, media frenzies.
cubanbob ... John Yoo was on a panel discussion hosted by Norte Dame the morning after the leak and linked by Powerline this morning where he suggested this might cause more than one Justice to rethink the current practice of hiring clerks fresh out of law school, and might lead to employment of professional clerks who will stay with the Justice or the SC for extended periods to increase their institutional loyalty.
The early release of the decision was made to trigger riots over the hot summer nights. But it has backfired. Everybody is OK with ending the mass murder.
I don’t think the Pentagon papers case is a good comparison to this leak. That case turned on the public need for the free flow of information.
Nixon made a career destroying mistake in pursuing Ellsberg. The "Pentagon Papers" all concerned misbehavior by the Johnson Administration. There was no good reason for him to get involved in the case. He was upholding a principle when the politics were all wrong. In pursuing this matter, the "Plumbers" came into existence and the rest was the material of Greek tragedy.
What if the purpose of the leak was to lock in the original vote by raising the cost of switching?
Knowing the stakes maybe Alito leaked it to gather up all the liberal arguments, thus ensuring they were fully and properly rebutted.
Wouldn't THAT cause heads to explode across DC?
Lefties are now "helpfully" publishing the home addresses of the conservative justices (though for some odd reason they included liberal pro-dem Roberts in that list too) while blue check twitter dems are publicly musing about assassinating those justices.
Those are clearly "mostly peaceful" public musings no doubt....
I think we all know what was the purpose of the leak.
https://twitter.com/JackPosobiec/status/1522230135562326016?ref_src=twsrc%5Etfw
But, sure, let the gaslighting continue.
"Diversity" means riots.
Now, ain't that the truth. And Diversity is their strength.
Is this really a leak leak? There was no secret? Most of the other leaks mentioned are someone trying to reveal something hidden?
This so called leak was not leaked to expose a secret. It was leaked to put pressure on the judges or to get it out there away from the mid terms?
It seem plausible to me either side could have leaked the draft. The left to pressure the judges to change - the right to pressure the judges to hold firm. I do not know the judges and have no way of knowing how the pressure might effect them? Perhaps the leakers think they know?
Glenn Reynolds suggests that the Supreme Court simply dispense with clerks altogether, and do their own work and research — as they did during the first hundred years or so of the Court's history.
The question over abortion isn't about rights, really. The question is about authority of the government to control aspects of citizen life. When that authority is not explicitly granted to the government in the Constitution, the government is supposed to let the citizenry manage their own lives. The government is limited explicitly from infringing on the citizen's rights, for both enumerated and non-enumerated rights, removing certain questions from the realm of government interference at all. We are today so far from those ideals of understanding how the Constitution should work, that even to state such is considered outrageous.
Leaks in this case is designed to call in the Militant Leftists to threaten and intimidate Justices into changing their vote.
Can Of Cheese for Hunter said...
10:39 Drago for the win.
11:43 Can of Cheese for runner up- the notion someone leaked to a left wing outlet to lock the vote is stupid.
Loose leaks. Planned commercials. Baby on slab. Something wicked this way progresses.
What does the early leak of the draft accomplish regarding "government action" when the final ruling will come out and be the official action? Nobody outside the Supreme Court knows where they currently stand on this case more than two months after the draft. The fact is that this draft may only have been one of the drafts being circulated to draw out discussion. Why haven't all of the drafts been leaked?
Then, too, there is the fact that the abortion issue is being treated as binary : legal or not, when the issue is far more nuanced - day after pills allowed? how about within the first trimester? Second trimester? third trimester? How about for mother's health? How about if divorcing spouse agrees to all expenses and to raise if mother doesn't?
I don't see any of this being discussed - just that abortion is bad or right to abortion frees woman from being tied down through an unwanted/unexpected pregnancy. Shouldn't we be exploring these nuances? Im certain that there will be as many opinions on them as there are people.
gahrie said...
Somebody leaking the contents of a diary belonging to the niece of the president is so important that the FBI has to investigate and the homes of reporters searched
They didn't just search the homes, they did the same thing as they did to Roger Stone. Premorning raids. For Ashley Bidens diary that told about her showering with Daddy. The FBI is the gestapo arm of the left.
This was done to intimidate the justices. The left is now calling out their Brown shirts to go to the Justices houses to intimidate them some more. Every single person who does this should be arrested, but we all know that will never happen, because the left can be as violent as they want, and the media will lie to our faces about it. This is all the left has...Intimidation, hate violence, and lies.
Kay said...
Hmmm now I’m curious as to what could happen if the ruling later contradicts the document that was leaked. I can just imagine the endless theorizing that would follow about whether or not it was the leak that changed the decision.
That is why I'm willing to believe it's possible it was leaked by someone on the Right (I put it 70 - 30 Left - Right). Because we know there were 5 votes for that opinion in Feb, and we expect that there currently still are those 5 votes, any loss of that majority would tell us that the "Justice(s)" who moved to Roberts' position are morally craven losers.
So it's now much harder for Roberts to win in his campaign to find for Dobbs, but leave Roe "officially on the books".
The fact that the Left has so firmly embraced the leaker is the thing most heavily weighing me towards "it was the Left"
wendybar said...
This was done to intimidate the justices. The left is now calling out their Brown shirts to go to the Justices houses to intimidate them some more. Every single person who does this should be arrested, but we all know that will never happen
Don't bet on that.
3 of them live in Virginia, where those kind of protests are illegal. And the VA AG is Republican Winsome Sears, who strikes me as a "take no shit" person.
So if they try it in VA, I expect arrest, prosecution, and trial in a place where the jury will be willing to find the thugs guilty.
IIRC, ACB lives in Indiana. Which means her husband can easily get armed if he isn't already, and where I don't expect any prosecutor to be able to find a jury willing to convict him for shooting any people threatening his wife / kids
(I say he'll use the gun, because that way the sitting SCOTUS member doesn't have to deal with the charges)
Democrats haven’t been this mad since Republicans told them they had to give up slavery.
"This is all the left has...Intimidation, hate violence, and lies."
You left out "good intentions".
We deserve everything the left does and uses to crush American norms, crushing the country you still think you live in.
Every move is a "one off" and certainly won't stand, won't happen again, or "isn't that bad".
I understand. Fighting them would be against you principles. "we're better than that" and that jazz.
Q: What's worse-ignorance or apathy?
A: I don't know and I don't care
This is why we can't have nice things. Because there is no honor in those that serve. Who did it? who knows, a member of the court? A clerk? Everyone on the list would be a political operative. This kills any idea that the Supreme Court is a body that defends the Constitution based on legal theory, so lets all be done with that! We will just let the SC be a super legislature. A number of little kings who can dictate to us. Sorry, founding fathers. Lets have a civil war! we won't take dictators!
Watergate was a minor leak by a minority that drove DNC, WaPo et al mad with hope and change for unearned, dysfunctional leverage. #HateLovesAbortion
I am reading that Justice Joan Ruth Bader Ginsburg had voiced opinions similar to Justice Samuel Anthony Alito Jr.'s analysis.
so why is the leak earthshaking or is it the 5 to x split
I am reading that Justice Joan Ruth Bader Ginsburg had voiced opinions similar to Justice Samuel Anthony Alito Jr.'s analysis.
alt-history : if this case had come up while she was present how would she vote?
so why is the leak earthshaking or is it the 5 to x split
Andy McCarthy is asking that the decision be published now since the purpose of the leak was intimidation. Waiting until June allows more intimidation. The left has not been sane for years, at least since 2016.
===========
does Mr McCarthy assume decision matches the leaked draft or does he believe leak was successful intimidation? and is differeent/changed it but release now would be CYA for Justices
Tom Goldstein at SCOTUSblog is suggesting three leaks.
I love the perfect symmetry in your post, Wendy
Blogger wendybar said...
This was done to intimidate the Congress critters. Trump is now calling out their Brown shirts to go to the house to intimidate them some more. Every single person who does this should be arrested, but we all know that will never happen, because Trumpers can be as violent as they want, and the Fox News will lie to our faces about it. This is all Trump has...Intimidation, hate violence, and lies.
Maybe things are different at the august level of the Supreme Court. But every practicing lawyer knows, as an absolutely fundamental core premise, that the breach of an oath or obligation of confidentiality is an unforgivable thing. That is true absolutely with regard to the confidences of a client, but also pertains to agreements and understandings with those to whom you are opposed as well.
The law could not function without this core principle.
I am astonished and disappointed that our esteemed host seems to be more interested in entertaining theories about who is hurt and who benefits, than in condemning the absolute villainy of the act.
And I am willing to believe that it was someone on "my side" as likely as someone on the "other side."
Marc said...
Tom Goldstein at SCOTUSblog is suggesting three leaks.
Goldstein is furiously spinning to make the leak sound like justified retaliation. It does not make sense that the WSJ got a separate leak from another source. The WSJ and Politico appear to have gotten the exact same information, the initial vote to overturn Roe and the Alito opinion, though Politco provided a more detailed report and published the actual opinion. He is essentially making, but without using the words, the illogical assertion that what he claims is the first leak to the WSJ was from a conservative to shore up the anti-Roe majority by subjecting Kavanaugh and Barrett to a firestorm. Merely from the fact that it was Alito writing the opinion it's not hard to guess that the court likely split 4-2-3 or 5-1-3, and who is in each group.
Occam sez there was one leaker who provided the vote and the opinion to at least Politco and the now infamously left-leaning reporting staff of the WSJ where it filtered over to the editorial page and somebody decided they were doing Roberts a solid (or Roberts confirmed the info to aid his attempts at persuasion) with that reference. Politco then felt justified in, or was pushed into, publishing their more detailed account after the WSJ opinion page mention.
Howard is missing Trump so much he inserts Trump into my post, because he wants to DATE Trump. Howard is lovesick. Poor widdle Howie.
Goldstein is furiously spinning to make the leak sound like justified retaliation.
This thought occurred to me, also. The progress of the investigation will be interesting to observe.
Christopher B said...
Marc said...
Tom Goldstein at SCOTUSblog is suggesting three leaks.
Goldstein is furiously spinning to make the leak sound like justified retaliation
It's funny, because the kind of "conservative leak" that Tom is postulating has happened twice before: 1: Warnings that someone had flipped on the ObamaCare case, when Roberts did so, and warnings that Gorsuch was screwing us on the trans case.
So there's history to make the claim "conservatives leaked to the WSJ" believable.
Goldstein never mentions this in his article.
IMAO, the reason he never mentions this, is because instead he tries to claim that the "unprecedented" leak to the WSJ justified the opinion leak to Politico.
An argument that loses power when you admit that the WSL leak was not actually "unprecedented".
The draft opinion leak, OTOH, was "unprecedented".
And the problem is that, while there's no fix (other than getting rid of clerks) to the problem of people leaking about a "justice" defecting, there is a "fix" to the leaked opinion problem: you stop giving your opinions to the other side to read and critique.
If you want SCOTUS to function as a Court, you want to avoid that
What if the purpose of the leak was to lock in the original vote by raising the cost of switching?
Someone who wanted to lock in a conservative ruling leaked this to ...... Politico.
Exactly. That only works if the leaker trusts Politico to not reveal the source. If Alito (or his parties) is the leak that could lead up to his potential impeachment and removal if it were revealed. That would be a lot of trust to put into Politico. Especially with the reporter being friends with a rival's law clerk.
The leak isn’t to cause the opinion to go public sooner. It is, I presume, to affect a decision making process still ongoing.
Which is why it is dangerous. No matter which side. It destroys the Court. If we want to argue in public about a topic, run for Congress. Judges are not supposed to be appealing to the public to save their side.
I am astonished and disappointed that our esteemed host seems to be more interested in entertaining theories about who is hurt and who benefits, than in condemning the absolute villainy of the act.
I echo that. It's either obtuse or corrupt. I haven't figured it out yet.
(T)he kind of "conservative leak" that Tom is postulating has happened twice before: (1) warnings that someone had flipped on the ObamaCare case, when Roberts did so, and (2) warnings that Gorsuch was screwing us on the trans case. So there's history to make the claim "conservatives leaked to the WSJ" believable.
I don't recall or never knew of these warnings; curiouser and curiouser. My own presumption, for what little it is worth, remains that the leaker is one of the leftist clerks. I admit that this is likely because leftists are more mad, bad, and dangerous to know.
Ann Althouse said...
What if the purpose of the leak was to lock in the original vote by raising the cost of switching? Then Andy’s solution aligns with the leaker’s.
You are correct. But there's two problems with that:
1: They leaked to hard core lefties at Politico. Which means it had to be completely anonymous, which is a hard thing to pull off
2: The Left, up to and including the Biden* White House, has solidly rallied around the leaker
So either the leaker has perfect anonymity and is a tactical and strategic genius able to play the entire Left like a fiddle, or else the leaker is on the Left
But in any event, the Left's eager willingness to attach themselves to the betrayer means that the proper response is to punish that support of betrayal by going with Andy's proposal.
Because what we should all want is a society where people keep their commitments. And to get that you create a society where the violation of commitments, or the celebration of the violation of commitments, brings a heavy cost
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