The leaking of a draft opinion in Dobbs v. Jackson Women’s Health Organization has rocked the Court and Washington. The 98-page draft opinion is dated Feb. 10, 2022 and authored by Associate Justice Samuel Alito. I have two columns (in USA Today and The Hill) today on the opinion and the disgraceful leak from within the Court.
The opinion is joined by Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. It declares that “Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The opinion can change but the damage done to the Court as an institution will likely be lasting. This shattered a long tradition of the Court of strict secrecy and integrity in the handling of drafts.
The leak is the greatest crisis faced by Chief Justice John Roberts and the greatest security breach in the history of the Court.
While leaks have appeared periodically on internal strife or issues on the Court, I cannot recall anything of this scale. Roe itself was the subject of leaks. The Washington Post did run some leaks the court’s internal deliberations. Then there was a premature disclosure of information hours before the formal release of the opinions. A few hours before the release, word got out on the holding of the Court. However, that all pales in comparison to the release of a draft opinion months in advance of the expected release.
Chief Justice Roberts has confirmed the legitimacy of the draft and the launching of an investigation.
The question is how the Court will proceed in the investigation. Anyone taking this deeply unethical act is likely to have taken steps to hide their tracks. I would be surprised if there were a paper trail or email record. However, anyone who would take such a reckless act may have been equally reckless in the means used to violate the Court’s rules.
If the culprit is a lawyer, disbarment would seem a virtual certainty. This person may be a hero in the eyes of some, but will remain a pariah in the eyes of any ethical lawyer. Yet, disbarment could be the least of the problems. If a suspect lies to the FBI, there could be prosecution under 18 U.S.C. 1001.
Thus, the culprit will have to make a decision today of whether to radically increase the potential costs of this act. There are a relatively small number of individuals with access to these drafts. It is likely that the culprit will be contacted quickly with others by investigators. That will prove a critical moment that could transform an unethical into a criminal act.
“Betrayal is the only truth that sticks.” ~Arthur Miller
When ‘Sibelius’ was decided Roberts appeared to signal that the Court, particularly his vote, was willing to submit to media, or mob, or cocktail party pressure.
That is his legacy. A degraded, spineless Court.
https://thefederalist.com/2022/05/03/john-roberts-cowardice-on-obamacare-is-why-the-left-thinks-it-can-bully-and-extort-scotus/
Might be a crime after all
https://www.breitbart.com/law-and-order/2022/05/03/abortion-opinion-leak-may-be-federal-crime
“The removal and use of Supreme Court documents without authorization likely runs afoul of 18 U.S. Code § 641, which provides criminal penalties for anyone who ’embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record…or thing of value of the United States or of any department or agency thereof.'”
Nonsense! There is no evidence publicly available that any of that occurred. It is overwhelmingly assumed that a Supreme Court law clerk who was authorized to have a copy of the draft opinion leaked a copy of it to a reporter. Presumably the leaked copy itself would have been an additional copy made of the authorized copy, rather than the authorized copy itself, since that presumably needed to be accounted for, and used by others.
Dan: “knowingly converts to his use or the use of another, or without authority”
+++
Do you think that he had authority to hand the draft opinion to a reporter?
I suspect there are 9 Justices who will have a strong opinion on that.
Nine Supreme Court justices do not have the authority, individually or collectively, to charge anyone with a crime, let alone to concoct new crimes that they believe, individually or collectively, that the Congress has been derelict in not creating statutorily; the justices are judges, not prosecutors or legislators. If the draft was leaked by a law clerk who was authorized to possess and utilize it– as virtually everyone now seems to assume was the case– then he or she was not forbidden by law to make a copy of the draft, and then to gift it to whomever he or she chose, including a journalist. Not every improper action is a crime that is forbidden by law. Professor Turley himself readily admits, supra, that the leak was not a criminal action, if it was, as assumed by seemingly everyone, leaked by a law clerk, rather than, say, stolen by a cat burglar.
Dan Hand, I assume it was stolen by someone in Thomsk.
Tomsk
I’m an exception to your claim. We don’t know who leaked or why, and I’m just going to wait and see what the investigation turns up instead of making unwarranted assumptions.
“Nine Supreme Court justices do not have the authority, individually or collectively, to charge anyone with a crime”
So? There is another branch that deals with charging and arresting. You know that, right?
“the justices are judges, not prosecutors or legislators. ”
Wow, you have Civics 101 down pat.
“then he or she was not forbidden by law to make a copy of the draft, and then to gift it to whomever he or she chose”
“possess and utilize it” doesn’t necessarily permit distribution of it. You know that, right?
“Not every improper action is a crime that is forbidden by law.”
Sometimes they are misdemeanors that Democrat leadership makes sure get punished and jailed without bail while spending most of that time in solitary confinement.
Thank you for using so many words, but it would have been better if such verbiage was merited.
There is no publicly known evidence that any crime has been committed, including a theft of the draft decision. Leaking an unclassified document to a journalist is not a crime. The breaking of institutional protocol is not a crime. Lacking evidence of a crime, using law enforcement to trace the leak could be improper, and might even amount to a federal crime, in and of itself, as I originally noted [infra].
“There is no publicly known evidence ”
That is all that needs to be said, and I am not sure that is true. If you don’t know, you don’t know. All the rest is only an exercise in your typing skills.
My wife was a federal court clerk. I strongly suspect this is against the law.
Regardless, it is Never done. Especially not at the supreme court.
It is an unethical, immoral, career ending move.
If someone on the right leaked this – they will never hold another job in law again – if they do not end up in jail.
Unfortunately if someone on the left leaked this – they will never work – outside the left again – though there they will likely have a lucrative future.
This is likely to make life dramatically more difficult for future clerks – and others with access to draft opinions.
It will reinforce the view that those on the left are not ethical or moral.
If the left wants people not to beleive they stole and election – this would not be the way to do so.
Over and over we see the left engage in the illegal the immoral, the unethical and the bat$hit crazy.
I would note – if this was a leak by the left – it is likely a huge political mistake.
If the court is actually preparing to overule Rowe – it politically favors democrats for that ruling to come out as late as possible – so that most people react knee jerk without thought.
This leak makes whatever the final opinion is less shocking.
It will reinforce the view that those on the left are not ethical or moral.
We only have to look back as far as the Kavanaugh appointment. We know some staffer of Feinstien leaked the fake letter. We know Feinstien as Ranking member of the committee was obligated to share any and all information with the chair. But she hid the existence.
We know democrats operate with the “what ever it takes” philosophy, and democrats have zero values, other than amassing power.
That a leftist law clerk would leak this is not out of character for someone that is invested in the dogma of the left.
Those were my thoughts too. It was stupid to leak it now – November is still distant enough that people will remember perfectly well the reasons they were turning on our dems. I’m thinking the clerk, if that was indeed what happened (not convinced it wasn’t a broader scheme, though) was too green to realize this was not a final ruling and is actually indicative of not a whole lot. Certainly not what states would end up doing individually. Short sighted is an appropriate description, but then again, what’s new?
A “broader scheme” by whom?
I agree with you that the leak will dissipate the impact of the final decision, and so will not affect the election to favour Democrats. I think its purpose was different: to mobilise pressure against the ostensible majority to try and change the outcome. This will fail, unless one of the five is assassinated; I think the risk of that has increased appreciably, given the fanaticism we are witnessing.
“It will reinforce the view that those on the left are not ethical or moral. … Over and over we see the left engage in the illegal the immoral, the unethical and the bat$hit crazy.”
No doubt you’ll say the same about the right if it turns out that it was leaked by someone on the right.
Oh, wait, no you won’t. You’d have already done so, just as you did here for the left.
Leaks were more common before Chief Justice Roberts got on the bench. It was not illegal then and it still is not illegal. Whoever leaked it knew the consequences and was willing to take the risk.
It may never be known. It’s possible. If that could be the case justice Roberts and the justices would be less trusting of their clerks or even other justices.
The right is already spreading unfounded rumors about Justice Sotomayor’s staff and issuing threats. It’s dangerous and irresponsible. Her staff faces serious threat of harm from the nut jobs on the right which is well known for violence and murder when it comes to the abortion issue.
The leak may have galvanized a large voting block of women, republican and democrat against candidates supporting abortion bans. It’s not just women on the left that have abortions. It’s those on the right as well. Evangelical, Catholic women have had an abortion in secret. It wouldn’t be surprising. Now that the option is threatened I wouldn’t be surprised if many would now vote against these bans. Despite being “pro-life”.
I used to know the rules on this – but there are rules regarding the handling of draft oppinions – there is a very limited number of people with access. It is likely the leaker will be found.
Are you daft ?
Of course there is clear evidence.
It is likely that only the chief justice has the authority to direct a draft to be provided in any form to anyone beyond the clerks and justices and a very very limited few others.
NO one else may share or allow to be shared a draft decision.
I strongly suspect this is a significant violation of the law – the decisions of the supreme court ALWAYS have winners and losers.
Knowing an outcome before it occurs is a valuable commodity.
People can easily make alot of money knowing how to invest before a decision.
Regardless, as long as the draft is real then on its face the law was violated.
The only question is by who.
Are you directing that question to me; or, are you accusing all of us lawyers (retired, in my case) who see no indicia of a crime in this leak of being “daft?” If the latter, Professor Turley himself would fall into that “daft” category:
***
Yet, disbarment could be the least of the problems. If a suspect lies to the FBI, there could be prosecution under 18 U.S.C. 1001.
Thus, the culprit will have to make a decision today of whether to radically increase the potential costs of this act. There are a relatively small number of individuals with access to these drafts. It is likely that the culprit will be contacted quickly with others by investigators. That will prove a critical moment that could transform an unethical into a criminal act.
***
Yet, disbarment could be the least of the problems. If a suspect lies to the FBI, there could be prosecution under 18 U.S.C. 1001.
First its not a crime. BUT if you lie to the FBI, that is investtgating… bad manners? a lie, about something that is not relevent to an invesitagation that is not happening, because no crime is committed…..
Screw lawyers can’t keep their lies straight.
You’re projecting your own confusion onto others.
Dan hand,
Wouldn’t this section of 18 usc 1001 apply to whoever leaked the draft?
“ Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.”
Would a draft be a part of a “judicial proceeding”? It was after all documents submitted to a judge as in sending the draft to the other justices. No?
Judges– or, in this case, justices– and their law clerks are not parties to the cases to which they are assigned. The parties are those who are suing and being sued, respectively (or, in criminal cases, the prosecutors and defendants, respectively). The section of the statute that you cite refers only to the things submitted “by such party or counsel”– not to those things (e.g., the draft now at issue) created by the judiciary officers (i.e., judges / justices) and employees (e.g., law clerks) working on a case.
“ I strongly suspect this is a significant violation of the law…”
What law?
Drafts are not classified documents. A clerk would be authorized to handle them including making copies for other justices to review.
“ It is likely that only the chief justice has the authority to direct a draft to be provided in any form to anyone beyond the clerks and justices and a very very limited few others.”
The draft was written by Alito. It’s Alito’s draft, why would Roberts dictate who is allowed to have it.? Aren’t the justices independent on making their own choices?
“ Regardless, as long as the draft is real then on its face the law was violated.”
Again, what law are you suggesting has been violated? Leaking unclassified information is not illegal. It may be against policy, but it’s not a criminal act to leak such information.
Breitbart has NO credibility as a source of anything other than alt-right blather.
I do not follow Breitbart.
But I can not think of ANY media that is trustworthy. Wapo, NYT, CNN, MSNBC – not a chance.
How about Cornell Law School – are they credible ?
https://www.law.cornell.edu/uscode/text/18/1905
Nick Martin: “Peter Brimelow, a former National Review editor who now runs the racist website VDARE, celebrated the Roe news by posting on the alt social media site Gab: “Next stop Brown vs. Board!” ”
https://twitter.com/nickmartin/status/1521555176515014656 [image of Brimelow’s comment included]
I guess Brimelow is a bigot like George (the commenter who posts garbage here daily) — both a racist and a misogynist.
Leaked by the Russkies to divert attention from events in Ukraine.
And they got it how ?
Hillary?? Joe?? Hunter???
And just like that, the hook up culture begins to transform.
“In case you’re a man who doesn’t care about Roe v. Wade, just know that if abortion gets banned, hookup culture will be absolutely decimated,” Bridget Gwyn wrote in text accompanying her Monday night TikTok video, according to the Daily Dot.
https://www.theblaze.com/news/hookup-culture-decimated-abortion-overturn
This is nonsense.
This decision does not ban abortion, it merely removes it from the domain of SCOTUS.
I think the decision is wrong, but it will not have enormous impact.
Most states already have very liberal abortion – that will be unchanged.
In a few states abortion will be illegal – and as before Rowe women will travel to where it is or
take a morning after pill – which was not possible in the 60’s
Further even Gutmacher – PP’;s statistical wing found repeatedly that restrictions on abortion did little beyond push women to make decisions earlier – which is very wise.
Of course it is nonsense. This is not a demographic however that understands the mechanics of federalism. They were born in the Rowe v Wade era and all they’ve known is the PP propaganda that abortion is a “legitimate” birth control option. Reagan said, If you want more of something, subsidize it; if you want less of something, tax it. Overturning Rowe v Wade doesn’t do either, but it does give the perception that the federal government will no longer “subsidize” the practice of abortion. I see this as a huge win against the administrative state. Maybe I’m being overly optimistic, but with one SCOTUS decision, people that have paid little attention to local, county and state politics will shift their attention away from petitioning the federal government to provide for their needs.
You disagree with overruling roe v wade? Mmm…interesting.
“ In a few states abortion will be illegal – and as before Rowe women will travel to where it is or
take a morning after pill – which was not possible in the 60’s”
Those states wont just stop at where they are, they are already intending to go further. Nothing prevents those states from banning the morning after pill and banning women from traveling to get an abortion in a state where it’s legal. There’s even proposals to stop companies from paying employees to receiving an abortion at a legal state.
Only wealthy women will be able to travel to a legal state. Those who are poor or lack the means are out of options.
Contraceptives will be fair game if Alito’s opinion makes it to the final draft. According to Alito’s interpretation contraceptives are not part of our history and tradition.
Nothing prevents those states from banning the morning after pill and banning women from traveling to get an abortion in a state where it’s legal.
Really? That’s fascinating. So how would they do that exactly? Force women to register their pregnancies and then prosecute them if they don’t register a live birth? Are they going to setup checkpoints at the border and ask women if they have any “fruits, vegetables, pregnancies” to declare? You should write for The Babylon Bee.
Authorities tried to remind the nation’s women that abortion law will just be in the hands of the states and no one has to be a Handmaid, but it was too late as the nation’s feminists had already donned their uniforms and declared themselves the willing citizens of the theocratic government of Gilead.
https://babylonbee.com/news/women-line-up-outside-scotus-to-receive-their-new-handmaids-tale-outfits
Olly, Missouri has already proposed banning travel for Missouri residents to get an abortion in another state. Suspicions will be raised when a pregnant woman suddenly is not pregnant. In Texas they tried to send a woman to prison because she had miscarriage and claimed she had abortion. The crazy right has always found ways to accuse others of violating the law without proof.
Banning contraceptives is not out of the question for the majority of the zealots who are in state legislatures. They do see contraceptives as abortions.
When all of your Schiff-level imaginations ever become reality, then get back to me. Until then, the only real world impact of reversing Roe v Wade is that the legality of abortion will be determined at the state level.
Other than abortion, what medical procedures should we leave up to the person and keep the government out? Right now there aren’t any. Even abortion is regulated, only 7 states allow abortion at any time – there are other regulations, like who can perform them. There is much work to do, to get government out of medical decisions.
One last thing, this ruling won’t change a single existing law.
I agree that this will not be catastrophic.
I agree that government improperly meddle in other healthcare choices.
I would have struck down the vaccine mandates on the same grounds as abortion.
We have the right to control our own bodies.
While abortion is slightly more complicted – at somepoint there is something inside a preganant woman that is not her body.
I further reject conservative justices continuing to pretend there are no unenumerated rights.
Our founders thought pretty much the opposite – there were nearly unlimited unenumerated rights.
But there is a difference between this is a bad decision and claims the world will end.
I further reject conservative justices continuing to pretend there are no unenumerated rights.
Our founders thought pretty much the opposite
Not even close. Rights existed before governments. We are endowed. The debate, who declares those rights? The People. That is the only way it can possible work.
What happened in Roe, 5 Guys in robs endowed the the people. Now 6 people in robs are taking them away. But not really. The people will decide because that is where the power rests in our form of Government.
I don’t think this is a bad decision. Nor do I think it clear that the founders accepted the existence of unenumerated rights that the Supreme Court was empowered to enforce. The founders had a pretty strict notion of what it meant for judges to interpret law, and rejected explicitly the idea that the courts should operate as a legislative review board, exercising a veto power over state law. On the other hand, the founders had a clear view that federal power was limited, and believed it should be prevented from encroaching on the rights and powers of the people and the states. They expected the Supreme Court to keep the federal power within its delegated authority. The 14th amendment changed that to some extent, but the proposition that it gave new license to the Supreme Court to discover previously unknown unenumerated rights seems dubious to me.
I think it’s a terrible decision. Name another ruling where the Court has overturned precedent in order to **curtail** rights rather than expand them.
He writes “Casey relied on cases involving the right to marry a person of a different race, Loving v. Virginia, 388 U.S. 1 (1967); the right to marry while in prison, Turner v. Safley, 482 U. S. 78 (1987); the right to obtain contraceptives, Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U. S. 438 (1972), Carey v. Population Services International, 431 U.S. 678 (1977); the right to reside with relatives, Moore v. East Cleveland, 431 U.S. 494 (1977); the right to make decisions about the education of one’s children, Pierce v. Society of Sisters, 268 U.S. 510 (1925), Meyer v. Nebraska, 262 U.S. 390 (1923); the right not to be sterilized without consent, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); and the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures, Winston v. Lee, 470 U.S. 753 (1985), Washington v. Harper, 494 U. S. 210 (1990), Rochin v. California, 342 U. S. 165 (1952). Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v. Texas, 539 U.S. 558 (2003) (right to engage in private, consensual sexual acts), and Obergefell v. Hodges, 576 U.S. 644 (2015) (right to marry a person of the same sex). … None of these rights has any claim to being deeply rooted in history.”
Alito claims “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” but I do not trust Alito to be truthful. I believe that he’d be totally happy to overturn some of the rights in that list — such as same-sex marriage — if he can convince other Justices to join him in it.
His argument is in significant part: we’re going to focus on what men thought about abortion when the 14th Amendment was passed, 50 years before women would get the right to vote; men’s bigotry towards women then justifies the choice to restrict women’s bodily autonomy now.
“I think it’s a terrible decision. Name another ruling where the Court has overturned precedent in order to **curtail** rights rather than expand them.”
Of course, ending Roe expands rights. You might not like where those rights lead, but it is an expansion. A vote by nine justices controls the freedom to decide for the rest of the 330 million people. The end of Roe means States and the people within have the right of control.
Abortion isn’t going away. The decision isn’t much different than a state’s decision and the people living in the state on what constitutes murder. Your thoughts are contrary to democracy. Abortion is not going away. Instead, the decision will be more representative of the people.
Abortion is not going away. Instead, the decision will be more representative of the people.
SM,
Of course it isn’t. If, as the Left asserts that abortion has majority support throughout the country, then that will be reflected at the state level. My hope is that minority communities begin to ask why Planned Parenthood has put 79% of abortion facilities in Black and Hispanic communities? Would they be equally supportive of an organization called Planned Defense that made “legal” access to guns easier in their communities? It’s a paradigm shift that needs to happen.
John B Say,
I gotta say that this leak certain brought out points that you would agree with the left. Such as autonomy of ones body and unenumerated rights. An interesting perspective you rarely show.
Svelaz, the left used to agree with civil liberties. Today, they are too busy cancelling them.
That is a major change. Look at the Democrat Party of JFK and look at how important civil liberties were to them. That is no longer the case.
It will be catastrophic for the poor women who can’t travel to a distant state or afford to take the time off. Only the ones who can afford the travel and other expenses to have an abortion in a legal state will not be seriously impacted.
A whole plethora of problems will be created. Adoption? Who will be adopting children from black women? Would prospective adoptive parents be discriminating against white or black babies? What about those with health issues from pregnancy complications?
A whole host of problems will be created and I don’t thing gif right to life crowd will be taking care of it. Or even address it. As it will most likely be the case. The state will carry the burden and taxpayers will balk at spending money on these welfare kids. I’m not saying if will certainly happen but it’s a possibility.
So the same people who yelled “my body my choice” when it came to facemasks, now have no problem with gubermint telling women what to do. How is it that republicans get so mad when their plans are leaked? They are always ready to jail anybody who comes forward and tells the truth.
You are correct – hypocrisy abounds – right and left.
I am libertarian.
Your body your choices – abortion, face masks, vaccination, drugs – whether HCQ or Marijuana.
That said – you have an absolute right to remove a fetus from your body, even if that results in its death.
What you do not have is the right to kill the fetus.
Contra the left. sometimes the right and all to often the courts – rights are not subject to the whim of the majority.
Alito is correct – Rowe was decided wrongly,
But two wrongs do not make a right.
Shouldn’t the question of abortion fall to the legislative process? If it is signed into law, then there would be no ambiguity or challenges in the courts.
Should it fall to the legislative process to possible require you to donate blood?
Should it fall to the legislative process to possible require you to donate bone marrow?
People have personal rights. Bodily autonomy is one of them. Legislatures can already regulate for safety. But it is not their right to demand that pregnant women carry a pregnancy to term against their will.
If safety as you claim is the domain of the legislature – then abortion is also – the safety of the fetus.
Neither the right nor the left seem to grasp there is no way to frame abortion as a right – without exposing all public health laws as unconstitutional. Nor to frame abortion as within the domain of democratic legislation – without brings the same public health mandates the right opposes.
The problem is a fetus has no rights. It’s not even a person legally. A fetus is not an independent entity.
Does a mother “own” an fetus? Who is ultimately the decision maker, the mother or the state?
“Does a mother “own” an fetus?”
Slavery is illegal.
No, Stooge, poor women in redneck states deserve the same choice as women in free states.
In your ethereal realm of perfection, who picks up the trash, manages the dump, and maintains the sewer system?
If everyone is actually equal, enjoys the same IQ, and everyone has the same level of wealth, who is going to complete those types of tasks?
Don’t worry, your job is safe and all jobs have value.
And the people in blue states have the same right to choose whether to wear a mask, or vaccinate, or have government close their jobs as those in red states.
Laws are challenged in the courts all the time – that is normal and there is nothing wrong with it.
It is the legitimate role of the courts to determine if a law or government action is legal or constitutional, and if it violates individuals rights.
A rational rights respecting framework would respect the absolute right people have to control their own bodies, and therefor to have abortions. The legitimate domain of the state is NOT whether you can have an abortion, but whether you can do so in a fashion that unnecessarily results in the death of the fetus.
Alito is right – Rowe was wrongly decided, but there is no evidence Dobbs will be any less constitutionally unsound.
“Shouldn’t the question of abortion fall to the legislative process?”
Since when did America become a tyranny of the majority?
It was leaked for 1 reason – to try change the vote.
It is an insurrection
You can guess why it was leaked, but you do not know why it was leaked.
You can guess that he doesn’t know why it was leaked, but you don’t know that he doesn’t know why it was leaked.
The only person(s) who know why it was leaked is the person who leaked it, and anyone that person explained their reasoning to.
Now that there appears to be a degree of certainty that Roe/Casey will be overturned, the Court should get the decision out promptly. Every day that passes invites assassination of one or more of the five Justices said to be on board. An assassination would preserve Roe and, if more than one are killed, could change the balance on the court, since Biden will nominate the successors. I don’t know if this was part of the motivation for the leak, but in today’s environment it could certainly be one of its consequences.
Are you assuming that the final version of the opinion for the court and the final version of any concurrences and dissents have all been written? I don’t assume that any of those are in their final version. The actual text of these rulings matter.
Justices have long had security protection, as there are plenty of nuts out there thinking of murdering them and other judges.
Earlier this year, the head of the U.S. Marshals Service said that federal judges were the target of more than 4,500 threats last year. In 2020, anti-feminist lawyer Roy Den Hollander murdered the son of federal judge Esther Salas and wounded her husband at their home.
I’m not assuming anything. Just identifying a risk that is now higher.
The assassination of a supreme court justice right now would likely result in the collapse of the federal government.
I will be very interested to read Mr. Turley’s analysis of the decision itself. I’ve done a once-over on the draft opinion, and it’s sweeping. Throws out the underlying right found in Roe. There have always been big problems with the Court’s abortion rulings, especially Casey and thereafter. Roe was legislation and vulnerable for that reason alone, but Casey was a real mess.
I am going to read it again, looking back for their discussion of the 9th amendment, which was cited in Roe and in the rulings on same-sex conduct and same-sex marriage. On first read, it looks like the draft sharply limits the reach of the 9th, but I want to look again. I also will re-read Obergefell to get a firmer grasp of its reasoning. The draft did nothing more than say that abortion and marriage are different issues, but I draw no comfort from that.
So now abortion gets thrown back in everyone’s faces. The Repubs take a purist “no” position, and the Dems take a purist “yes” position. The public is in between, but neither side seems to want to acknowledge that. This is going to be a real fustercluck.
Jake J: Thanks for the Nice comment, and thought-provoking.
(one caveat, you mention that “Roe was legislation…” I think you meant to say that Roe involved [challenged] legislation…” ??? There are already enough people out there who think that the Court “legislates!”
I am a pretty big fan of Roe’s three-trimester framework. To me it was “Solomon-like.” But it was essentially legislation. If I were emperor, the Roe framework would be the law of the land. I consider it an artful compromise, not to mention common sense and clear. Casey, on the other hand, was an impenetrable mess that I think did real long term damage to the pro-choice legal edifice. Having gone back and re-read the draft’s analysis of the 9th amendment angle, along with the rest, and I see how sweeping that opinon is.
My reading is that it eviscerates the privacy doctrine that has been the basis of decisions on abortion and sexual relations. As someone who decided to take “Yes” for an answer after the 2015 Obergefell ruling and marry my same-sex partner, I have a sense of foreboding. Who do I pick, the Dems who want to disarm me, or the Repubs who want to revoke my marriage? One way or another, each party is driven to invade my life.
Sorry, Jake but Rowe was abysmal law. Alito is mostly correct – it is wrongly decided. As you note it is essentially legislation. Though the Dobbs draft is not better.
Regardless, it is not the goal of courts to provide a framework.
it is to decide whether laws unconstitutionally infringe on rights.
Each of us have the right to control or body. We can have plastic surgery, we can remove warts and even limbs and organs.
Women are free to remove a fetus from their body right up to birth.
What is NOT a right – and therefore within the domain of the state, is killing the fetus.
The “right” abortions decision would be – it is outside the power of government to regulate whether women can have fetus’s removed from their bodies. It is within the powers of government to protect that fetus in the process,
Abortion never should have rested on the right of privacy – though real it is not the strongest right implicated by abortion laws.
The left is now engaged in fear mongering. The fundimental threat to rights today remains from the left not the right.
The right is conservative – not ideological. Conservatism protects the status quo. Changes that do not fail become the status quo.
Birth Control and Gay marraige are status quo.
How do you think the same people who want government to take over your life over CAGW nonsense, are going to respond to the real problems that come with population decline.
Look at China response to Rising population, look at the lefts attempted response to normal warming.
Do you really think that an ideology where rights do not exist and freedom’s only exist when they do not run afoul of abysmally bad understanding of the common good, is ultimately going to be friendly to homosexuality or Gender idiocy ?
Rowe was legislation.
Dobbs shows no sign of being better.
Natacha
Please make the argument for the constitution protecting the right to abortion (privacy) until the moment of live birth. How does constitutionally protected privacy end at viability? Roe is flawed, period.
Instead of my commenting, why not read the actual Roe opinion if you have questions? As I recall, the opinion held that the point of fetal viability outside the womb is the point at which the state has an interest in regulating abortion. Prior to that point, it’s a matter of privacy between the woman and her doctor.
the opinion held that the point of fetal viability outside the womb is the point at which the state has an interest
The court can’t ‘say’. The court can only use standards in the constitution. It is the center of the whole debate. SCOTUS making up stuff. If the draft opinion holds, all that happens, the people through their state legislature control.
Most of us understand that the left can not be trusted regarding the constitutions – what is or is not a right on the left depends on whim and the issue.
But those of us arguing for a meaningful constitution should not be seduced into the same poor arguments.
There is no right to life mentioned in the constitution. If you are overly strict about it – laws against murder are unconstitutional.
Just because something is not in the constitution does not make it a right.
I have not read Alito’s 9th amendment analysis – but I have read Federalist constitutional scholar Randy Barnett’s.
Which is supported by the writings of the founders, the priviledges and immunities clause in the constitution. The history of the clash over unspecified rights straight through to the reconstruction amendments and the 14th amendment priviledges and immunites clause and their history
The correct originalist understanding of unenumerated rights, is that they are nearly infinite.
The right to privacy is not an unenumerated right – it is self evident in our right to security in our person and papers.
The right to control over our body is not unenumerated – it is self evident in our right to security in our person.
It is also the foundation of all property rights – if you do not own yourself, you own nothing.
Rowe was error, But Dobbs looks to be no better.
All sides would be best served grasping that actual rights are real – not whimsy.
If government can say you MUST get vaccinated – it can also say you can not have an abortion.
Neither are true.
Government can not infringe on your right to remove a fetus from your body.
But it can endeavor to ensure the fetus survives.
So, constitutionally protected privacy (a “fundamental right”) ends where the Supreme Court of 1973 arbitrarily determined that the state has an interest. What interest?? Flawed. Doesn’t matter which side you stand on this, Roe was flawed and the Congress was too lazy, or busy enriching themselves, to make it right.
Fetal viability is a moving target of science and medicine.
Contra the left – the courts must rely on the law and constitution NOT science in determining constitutionality.
The state can take an interest in the fetus whenever it pleases.
It can not interfere with a persons right to control their body regardless.
The state may not stop the removal of a fetus from a womans body at any point in pregancy.
It CAN however legislate to enable the survival of the fetus.
The right to an abortion is the right to not be preganant.
It is not the right to kill the fetus.
Tom is one of the Blog Stooge’s many puppets today.
Mmmmm, love those intellectual replies.
A right to homicide is not provided by the Constitution, homicide is not “natural” or “God-given,” and a right to homicide cannot be considered per the 9th Amendment as it is not conceivable or plausible.
The age of the human victim is immaterial to an act of homicide – whether the homi, or human, is old, middle-aged or young.
The location of the human victim is immaterial to an act of homicide – whether the homi, or human, is domiciled in a cave, a tree, a lean-to, a carriage, a vessel or a womb.
The means of support of the human victim is immaterial to an act of homicide – whether the homi, or human, is fed and nurtured intravenously, by his own hand, by the hand of another human or by an umbilical cord.
Human life begins after the 24-hour period of fertilization.
All killings are not homicide.
There is no criminally sanctionable duty to sustain the life of another.
You are not legally required to provide another with one of your kidney’s – even temporarily, even if that other would die if you do not.
Should you choose to do so, you can change your mind right up to the point your kidney is inside the other persons body.
One of the problems with abortion is that both sides confuse what is allowed by right – the removal of the fetus from the women’s body,
With what is intended – the destruction of the fetus.
The woman has the right to remove a fetus from her body – even if its death is the result.
The state may legitimately at to ensure the fetus survives – so long as it does not interfere with the woman’s right to remove it.
Most abortions occur at the embryonic stage, not the fetal stage. Implanted embryos cannot survive being removed from a uterus. The state cannot legislate to ensure that the embryo survives, because the embryonic stage is long before viability.
Partisans look to the results to formulate their principles, patriots look to principles to explain the results.
This is a significant question.
https://instapundit.com/518469
Young, that looks like a homemade journal you posted from.
Look again.
Yet another Biden gaffe or did he say what many prolifers like me have said for decades?
Either way, it is the truth. Kill a child, abort a child, death to a child. No more euphemisms
https://abcnews.go.com/Politics/biden-reacts-leaked-draft-supreme-court-opinion-abortion/story?id=84467397
“Biden reacts to leaked draft Supreme Court opinion on abortion”
“The idea that we’re going to make a judgment that is going to say that no one can make the judgment to choose to abort a child, based on a decision by the Supreme Court, I think goes way overboard,” he said.
#DemsAbortChildren
I am appalled at the leak, but no crime has been alleged. Siccing the F.B.I. on suspected or potential leakers would itself arguably be a criminal offense: https://www.justice.gov/crt/deprivation-rights-under-color-law
How about the potential to intimidate Supreme Court Justices into altering their opinions?
Please cite a federal criminal statute wherein leaking an unclassified document that you have legitimate access to would be proscribed as a crime, based upon the possible “intimidation” that the government official(s) who wrote or subscribed to the document might subjectively sense.
Facts, laws, norms, and statutes were abandoned by the Left a 100 years ago. Be real: personal attack, intimidation and killings are their means of persuasion. With $billions in theft at stake, it should be understood they will do whatever it takes to crush the opposition including the innocent, most defenseless of all: aborting a child, as Biden stated.
When you see such a Leftist committing an actual crime, feel welcome to report back to me, and to the police. There is no evidence publicly available that suggests that this leak was criminal in nature.
The laws implicated have been posted by others.
Get past it. This was an illegal act.
I would further note – it is highly likely that the leaker will be exposed.
The courts are near certain to require politico to disclose its source.
Theft of Government Documents, Records, etc…..same thing that got Sandy Berger (that Democrat fella) into trouble after he stuffed documents into his socks and underwear and snuck them. out of their Repository.
There is a specific Statute that covers that. I am too lazy to do your homework for you.
Making a copy of a non-classified government document that you have legitimate access to as a law clerk, and then handing the copy to a journalist, is nothing like the stealing of classified documents from a government repository. Laziness is the least of your shortcomings….
WOW!!!
That is correct. This is not a violation of the espionage at.
Beat that straw man to death.
That does not make it moral legal or ethical.
Bahahahha. You say that after what this country was just put through with the FBI working as the gestapo for Nancy Pelosi??
The coverup is already in play.
“Chief Justice John Roberts on Tuesday directed the marshal of the Supreme Court to launch an investigation into the source of a leaked draft opinion showing that a majority of justices were poised to overturn Roe v. Wade.”
marshall
Call in the FBI? Oh hell no. Hand the investigation to the marshall of SCOTUS. A group of very limited sources.
Sounds a lot like the FBI that never investigated the DNC email steal. Or the Las Vegas shooting that never got solved. Or the Two bombs planted in DC on Jan 6 that can’t be solved.
He is following protocol
Stick to Agronomy
Now Anonymous does her hate thing against farmers (Agronimist). Obviously she has never watched a farmer operating a computer in a modern day tractor or measuring the moister content in corn to know how long to keep it in the dryer. Her inference is obviously that farmers are just a bunch of hayseeds. As more and more time goes by she reveals herself through her greater use of “Hate Speech.” Even though she uses “Hate Speech” every day I am not calling for her to be kicked off of this blog. The response to her speech should be more speech by those who do not agree.
If no law was broken, then WHY would the FBI get involved? They only investigate crimes, not breaches of protocol. Turley hasn’t cited any actual US Code that says it’s illegal to leak a draft SCOTUS opinion.
The US Marshals traditionally act as an arm of the federal courts. If you get a writ of execution on a federal judgment it is a deputy marshal who seizes the property, not the FBI. More importantly, the FBI no longer has or deserves the trust of the nation.
You don’t speak for “our nation” or how it feels about the FBI. You Trumpsters don’t get it–most Americans DO NOT agree with you. Federal Marshals are NOT the FBI, either so your argument doesn’t even make sense. The thread to which I was responding had to do with allegations of “cover up”. “Cover up” of what if no law was broken? The opinion was due out next month anyway. An early leak of a draft is really not the big deal here, but alt-right news will play it up to avoid the inconvenient truth of just how outrageous the logic and effect of this opinion will be and its far-reach consequences.
Natch, Glad you asked.
https://www.rasmussenreports.com/public_content/politics/partner_surveys/voter_approval_of_fbi_declines
Rasmussen is not considered a reliable source of polling.
More reliable than you.
Work it, Sammy. You look divine
REGARDING ABOVE:
The Blog Stooge is a closet queen who presumes every guy is gay. What an icky creep!
Natacha – I realize you have no moral compass, however here in Arizona this is a big deal. The SC has never leaked up to now and it has been a Point of Pride for the court.
Paul, the court is T-rump institution with 3 members appointed by a twice impeached president who never won the Popular Vote.
Three members approved by the Senate.
Anonymous – not convicted. 🙂
The SC used to: 1. honor the doctrine of stare decisis; 2. be comprised of Justices who didn’t lie to get on the bench so that they could carry out the mandates of the Federalist Society; 3. who understood that the role of the SCOTUS is to protect rights guaranteed by the Constitution and Bill of Rights from the tyranny of states, not play politics. Where do you get off accusing me of being immoral because you don’t agree with what I write? It’s proof of your indoctrination as a disciple. Why is the leak such a big deal, anyway, since the opinion was due out next month anyway?
Nutacha – as with everything us – you do not live int he real world.
The federalist position on abortion is close tot he opposite of what you claim.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3921358
Or you could try
https://www.amazon.com/Restoring-Lost-Constitution-Presumption-Liberty/dp/0691159734
The federalists are leading the charge for the originalist understanding that the constitution limited the powers of government and expanded the rights of the individuals.
Dobb’s is ANTI federalist.
Federalists are essentially libertarian, the rights version of liberals.
The difference between federalists and liberals is that federalists more universally side with individual rights over government powers.
Natacha – 1) you do not have a moral compass 2) stare decisis is NOT written in stone.
If no law was broken, then WHY would the FBI get involved? They only investigate crimes,
Like a girls missing diary?
Or when they investigate Supreme Court nominees during the confirmation process.
Of course Roberts asked the Court’s Marshall to investigate. Why would he want to involve the Executive Branch? The Court has its own security force, and this is likely an internal matter. Separation of powers applies. If it turns out that the FBI is needed, for instance if the document was hacked or taken out of paper recycling in another govt facility, he will ask for them.
“It’s the [Constitution], stupid!”
– James Carville
_____________
The significant element in this Supreme Court leak episode is the erroneous, malicious, subversive and corrupt act of the judicial branch to uphold and perpetuate a lie, that which is erroneous and false. For 50 years, the judicial branch has allowed something fully unconstitutional to prevail – that the Constitution provides a right or freedom of abortion – when abortion has always and clearly been a State issue.
(Conjure the American Founders providing a right to abortion in their Constitution, while attempting to build a country and needing every last American their wives can possibly make, in order to grow and defend the nation).
When Lincoln executed the unconstitutional act of suspending habeas corpus, Chief Justice Taney immediately struck the act down (Lincoln ignored and cancelled Taney and the Constitution). For 162 years, the judicial branch has allowed the degradation and nullification of the Constitution and Bill of Rights, while simultaneously facilitating the incremental implementation of the wholly and self-evidently unconstitutional principles of communism. For 50 years the judicial branch has promoted the absurd idea of the relevance, legitimacy and bearing of precedent; the judicial branch must and shall do the hard, onerous work of adjudication…from scratch. The fact that the 18th Amendment was valid until the 21st Amendment caused it to be invalid, proves that the right and freedom of ingestion (9th Amendment) is ignored, and that bias, whimsy and corruption prevail. Justices and judges are not elected, and their failures and fancies (“having no objective reality”) must be impeached forthwith.
Turnout, by design, in 1788 was 11.6%, and as Ben Franklin clearly stated, America is a restricted-vote republic, not a one man, one vote democracy, which is impossible and self-destructive. Ironically, China conducts government per the American Framers and Founders – representative government derived of a restricted-vote.
The difference is the Constitution.
Starting with the Supreme Court, it is long past time begin to “…fundamentally transforming the United States of America…” back to the future of 1787, and to the literal English words of the Constitution and Bill of Rights.
About a century later, the Supreme Court vindicated Taney on the habeas corpus issue. In the Hamdi case, three opinions said in dicta that habeas had to be suspended by Congress. If you add up the number of justices who signed those opinions, they were a majority of the court.
“If the culprit is a lawyer, disbarment would seem a virtual certainty.” You have too much faith in the system, run by and for liberals. If the leaker is a liberal they won’t be disbarred, they will be hailed as a hero and no doubt get multiple job offers from they American-Hating leftest media.
Bad actors will use the services of unscrupulous people and then never trust them.
Benedict Arnold was a pariah in England
Anyone here remember Daniel Ellsberg? Hint: The Pentagon Papers.
Anyone remember Edward Snowden?
I’m cautious about extending the analogy because until now, we ALL believe the Supreme Court of the USA would not be a victim of this sort of leak.
Many of you may recall my prior comments about the effectiveness of ‘enhanced interrogation techniques.’
Folks, if you want to find the leaker, EIT is the fastest way to do it —
As for the punishment, I’ll leave that up to others.
Richard says:
“Folks, if you want to find the leaker, EIT is the fastest way to do it —“
You really think waterboarding law clerks is appropriate?
Either that or gender affirming surgery
🔪🍒😆
Lawyers? Seems too good for ’em. 😉
“You really think waterboarding law clerks is appropriate?”
+++
I can see the humor in it. Can I watch?
Sure. Whatever floats your boat.
This is a poor comparison. Ellsberg and Snowden revealed information intended to be kept secret. The information in both cases showed that officials were being at best hypocritical and at worst lying. Here, the decision will be made shortly and all the opinions will be published. What was disclosed here was a step in the process of deliberation. The effect of the disclosure is not to make public something that will remain secret and thereby reveal hypocrisy or lying but instead to influence the outcome by mobilising the forces of intimidation while deliberations are still underway.