The response to the leaked draft opinion overturning Roe v. Wade has unleashed a torrent of outrage on the left. While many are calling for marches and sweeping new legislation, some are focused on calling out the justices in the majority for alleged “perjury” or “lying” in their confirmation hearings, particularly Justices Samuel Alito, Brett Kavanaugh, and Neil Gorsuch. In reality, they did not lie in testimony in referencing Roe as established precedent. The suggestion of perjury is utter nonsense.
The draft opinion written by Justice Alito declares “We hold 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.”
Sen. Majority Leader Chuck Schumer (D., N.Y.) declared that some of the conservative justices “have lied to the U.S. Senate.” Sen. Susan Collins (R., Me.) publicly decried what she claimed were false or misleading answers on Roe by Justices Alito and Kavanaugh.
No less a legal figure as Stephen Colbert declared “They knew, that if they were honest, they wouldn’t get the job. So they lied, which I think is perjury. But what do I know? I’m no Supreme Court justice, I’m not a good enough liar.”
In recent hearings, some of us have criticized Democratic members for demanding assurances on how nominees would vote on particular cases or issues. However, both Democratic and Republican nominees have largely stuck to rote responses on Roe and other cases to refuse to make such commitments. As Justice Ruth Bader Ginsburg famously insisted, there would be “no forecasts, no hints.”
The problem is that politicians often display a type of selective auditory attention problem: they hear what they want to hear. Indeed, confirmation hearings are highly choreographed on both sides. Each senator seeks to secure a thirty-second clip showing that he or she secured assurances or trashed a nominee.
For pro-choice senators like Sen. Collins, it is essential to have some answer that would support a claim that, despite seemingly antagonistic judicial philosophical views, a nominee would not likely overturn Roe v. Wade and Planned Parenthood v. Casey.
Notably, however, these same senators have supported the Ginsburg Rule, which is customarily cited to refuse to make promises or predictions on votes. Indeed, I have long been a critic of the rule because it is used to refuse to even discuss judicial philosophy. So nominees now just restate elementary points of judging without saying anything of substance.
Most of those crying “perjury” do not cite the specific perjurious language.
Take Alito. Many of us said when Alito was nominated that he was presumptively opposed to the logic of Roe. After all, in 1985, Alito wrote as a Justice Department lawyer that the Constitution does not contain a right protecting abortions.
However, appearances had to be observed.
The late Sen. Arlen Specter (R., Pa.), asked him if he agreed with that statement today and Alito responded in classic confirmation nonspeak. He first repeated the facts (by noting that he was a Justice Department attorney at the time) and then went rote: “Today if the issue were to come before me. The first question would be the question that we’ve been discussing and that’s the issue of stare decisis. And if the analysis were to get beyond that point, I would approach that question with an open mind.”
That says absolutely nothing but how every jurist approaches case precedent. You begin with the touchstone of stare decisis and the preference for preserving precedent. You then approach the countervailing question with “an open mind.”
When Sen. Dick Durbin (D., IL.) pressed him on whether Roe is “settled law,” Alito responded again by stating the obvious:
“Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So, it’s been on the books for a long time. It has been challenged in a number of occasions. And I discussed those yesterday. And the Supreme Court has reaffirmed the decision–sometimes on the merits; sometimes, in Casey, based on stare decisis. And I believe when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis…”
That again says nothing. Indeed, it was decided in 1973 and that is a long time ago. Plessy v. Ferguson was on the books for 58 years before it was overturned in 1958. It was also supported by stare decisis but it did not matter.
He never pledged to preserve Roe. Even if he did, he never promised that he would never change his mind on such cases.
Then came Gorsuch.
I testified in the Gorsuch hearing and he was widely viewed as a Roe skeptic. After all, he wrote a book that declared the “the intentional taking of human life by private persons is always wrong.”
When asked about that statement in the context of Roe, Gorsuch responded: “Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment.”
When Durbin asked if he accepted that, Gorsuch stated another truism: “That’s the law of the land. I accept the law of the land, senator, yes.” In other words, he accepted that Roe is the established precedent. That is about as earthshaking as saying he accepts that the Supreme Court sits in Washington. Likewise, then-senator Al Franken asked Gorsuch if he viewed Roe as “settled law.” Again, that is like asking for the location of the Supreme Court. Gorsuch declared “It is absolutely settled law.”
Then came Kavanaugh.
Kavanaugh also stated the obvious in calling Roe “important precedent” and noting that the Court strives to preserve precedent. When pressed by Sen. Dianne Feinstein (D., Cal.), he again said that such cases are “entitled the respect under principles of stare decisis” and “one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.”
Kavanaugh succeeded in repeating nothing but verbal nullities.
The one exception to this pattern of confirmation nonspeak was Barrett. At the time, I wrote that Barrett was refreshingly and surprisingly honest about her judicial philosophy and approach to Roe. She specifically rejected the claim that Roe constitutes “super precedent.” Barrett said that this term “define[s] cases that are so well settled that no political actors and no people seriously push for their overruling. And I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category.” (Notably, Judge Ketanji Brown Jackson took the same position against Roe as super precedent.).
What is most striking about these claims that the justices lied is that most of these critics insisted during their confirmations that they were clearly antagonistic toward Roe. Nothing that they said changed any minds on their judicial philosophy as hostile to the logic of Roe.
Notably, liberal nominees have used the same language about cases like District of Columbia v. Heller, supporting gun rights. They acknowledge that it is a settled precedent but that does not guarantee that they will vote to preserve it. Indeed, they have voted to limit or overturn past cases with which they disagree. No one called for perjury prosecutions or denounced them as liars.
None of this is likely to matter in the echo-chambered news today, particularly with the approaching midterm elections. That is why Bismarck warned that “people never lie so much as after a hunt, during a war or before an election.”
413 thoughts on “No, Justices Did Not Commit Perjury in Their Confirmation Hearings When Asked About Roe”
Jonathan Hurley overlooked relevant statutes and case law. The broadest federal statute criminalizing lying is 18 U.S.C. § 1001, which makes it a crime to “knowingly and willfully . . . make any materially false, fictitious, or fraudulent statement or representation” in the course of “any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government. There’s no requirement that the statement be under oath.
Fraud to obtain federal employment is defined as, “Whoever knowingly and willfully falsifies, conceals, or covers up a material fact, or makes a false, fictitious, or fraudulent statement or representation, or makes or uses a false statement or report knowing the same to contain any false, fictitious, or fraudulent statement or entry in connection with the application for or receipt of compensation or other benefit or payment under subchapter I or III of chapter 81 of title 5, shall be guilty of perjury . . .” 18 U.S. Code § 1920. The statute does not define the phrase “obtained by fraud.” Fraud is defined by nontechnical standards and is not to be restricted by any common-law definition of false pretenses. One court has observed, “[t]he law does not define fraud; it needs no definition; it is as old as falsehood and as versatile as human ingenuity.” Weiss v. United States, 122 F.2d 675, 681 (5th Cir. 1941), cert. denied, 314 U.S. 687 (1941). The Fourth Circuit, reviewing a conviction under 18 U.S.C. § 2314, also noted that “fraud is a broad term, which includes false representations, dishonesty and deceit.” See United States v. Grainger, 701 F.2d 308, 311 (4th Cir. 1983), cert. denied, 461 U.S. 947 (1983)
Omission and concealment of a fact such as providing an evasive statement to gain employment on the federal bench is both fraudulent employment and perjury. In Judge Kavanaugh’s Senate hearing, Sen. Dianne Feinstein (D-Calif.) then, she asked if he agreed with former Justice Sandra Day O’Connor that a women’s right to control her reproductive life impacted her ability to “participate equally in the economic and social life of the nation.”
Kavanaugh responded by saying that, “as a general proposition,” he understood the importance of the precedent set in Roe v. Wade, and outlined the rationales that undergirded both Roe and Planned Parenthood v. Casey, which reaffirmed a woman’s constitutional right to obtain an abortion before fetal viability. Such a statement, being now falsified by Kavanaugh’s 06/24/2022 opinion, is a false statement and an omission.
Feinstein then outright asked Kavanaugh what he meant by “settled law” and whether he believed Roe v. Wade to be correct law. Kavanaugh said he believed it was “settled as a precedent of the Supreme Court” and should be “entitled the respect under principles of stare decisis,” the notion that precedents should not be overturned without strong reason. Kavanaugh’s latter statements reaffirm the former. Judge Kavanaugh’s statements are “knowingly and willfully . . . make any materially false, fictitious, or fraudulent statement or representation.” 18 U.S.C. §§ 1001, 1920.
Turley is correct. Post-Bork, nominees of all judicial philosophies, most recently Ketanji B-J, respond as did Gorsich, Kavanaugh, and Alito.
He’d also have been correct were he of the opinion they lied under oath.
While Prof. Turley and other lawyers understood that Gorsuch and Kavanagh made no commitment to maintain Roe, I’m not sure that a layperson would have come to that conclusion. Neither Sens. Collins nor Murkowski are attorneys and we don’t know what the two candidates said in their prehearing meetings in the Senators’ offices. Both nominees needed the votes of the pro-choice moderates IIRC and may have said what was necessary to secure their votes.
It would have been wrong for the Senators so solicit such a commitment.
Agree his article is written around an incomplete suggestion that the only relevant answers given were “during” the conformation hearings. All while there is clear accessible evidence that(specifically in Susan Collins later statements), that she felt “mislead” by answers given in her “personal” meetings held in her office.
Abortion issue aside, “It’s not perjury because everybody does it” isn’t the compelling argument you seem to think it is.
Neither is “they weren’t lying, they were just obfuscating their intentions in a deliberately misleading manner.”
Totally Agree Corey. Turley should turn in his law license and George Washington University Law School should forbid him from ever teaching students again.
What a foolish statement about turning in his law license.
In saner times, what was an administration’s response to policies that if continued would guarantee huge midterm losses for the party in power? Was it to expand on those policies? Or was it to change course and moderate? Are Democrats committing political suicide, or are they going all in with a card up their sleeve? Think about it. Get out of the historically normal box and start spitballing from the crazy box.
What could they possibly be doing that gives them confidence they will defy political history?
Consider the fact their has been a wave of catastrophic fires at facilities involved with food production. Consider the fertilizer and grain shortages as a result of the Russia/Ukraine war and overall supply chain disruptions. Consider skyrocketing inflation, recession and the real risk of shuttered businesses and more unemployment. Consider that this administration is bragging that they we were directly involved in assisting Ukraine shooting down a Russian transport plane and the sinking of a Russian warship. Consider Biden told US soldiers in Poland that they would be going into Ukraine. Consider Biden told the world that Putin cannot remain in power. Consider politicians are already saying we’re in this war and we’re in it to win it. Consider flooding our country with illegal immigrants, lethal drugs and potential terrorists. Consider the raging violence and unfettered criminal activity.
How does any population respond to all of this, especially if they are struggling to feed their families? Peacefully? Are they going to peacefully accept gas and food lines? Rationing? How will they respond if they have been tagged as national security threats and without the social (ESG) score needed to provide for their needs? Is martial law in our future? Are the midterms potentially not in our future?
Yeah crazy, but what isn’t these days.
Jonathan Turley, you participated as a Republican witness in impeachment hearings and removal trials in Congress, including the impeachment of President Bill Clinton and both the first and second impeachments of President Donald Trump. Turley supported the impeachment of Democratic President Bill Clinton and opposed the impeachment of Republican President Donald Trump. (from Wikipedia) therefore you have NO CREDIBILITY to speak or write about these things. You are nothing but a Right wing twisted liar. By the way, I did not waste my time reading all your bull dung!
Anon: “Jonathan Turley, you participated as a Republican witness …”
He appeared as an expert witness with an obligation to render an opinion based on his information and his judgment as best he could without bias. It makes no difference who called him.
Jonathan Turley, you participated as a Republican witness in impeachment hearings
Republicans asked Turley to participate. Turley represented the Constitution.
You need to address where Turley got the Constitution wrong, during either of his testimony. Instead of the constant fact free ad hominem attacks
Turley is a duplicitous hypocritical stooge but that doesn’t necessarily make him wrong; he’s still a law professor and is quite knowledgable.
This is a literal argument ad hominem, do better.
So you didn’t read it and yet you know it’s all a lie. This is why we are in the predicament we are in. Grow up.
Conservative only means making change slowly after considerabke thought.usually used by those in power. The opposite is liberal means fast change without thought nor consideration. Usually by those out of power or trying to become powerful and very unsure of themselves..prone to error of not thinking before acting .
Explains why socialists are more prone to wars with high death tolls quick to blame others. LBJ classic example.
The notion of ‘settled law’ is absurd. Prohibition was settled law, until it wasn’t. If the Constitution is open to amendments and overturns, all lesser things are as well.
The only “notion” that bears is impeachment and conviction for subversion, abuse of power, usurpation of power, negligence and dereliction of duty, and the failure by Justices to adhere to the oaths they swore to “support” the “manifest tenor,” and no other, of the U.S. Constitution.
No, Prohibition was not settled law, nor was it a Supreme Court decision. And that the Constitution can be amended is entirely irrelevant. Logic is not your forte.
The crux of a reasoned debate on the matter would appear to reside in the fact the U.S. Constitution does not criminalize murder with unadulterated specificity and thus, the matter is left to preventive sanction under State law and regulation. To date, all states have enforced such prevention at some level. The elephant in the room, largely ignored in this dialogue is the direct bearing of the 8th Amendment, underscored by Supreme Court precedent, that brings this matter under Constitutional auspices. The Eighth Amendment to the United States Constitution, prohibiting “cruel and unusual punishments” is derived from the English Bill of Rights of 1689 outlawing certain kinds of punishment, held by the courts as pertaining to such heinous and cowardly acts as drawing and quartering. And this is precisely analogous to the subject matter at hand: The pulling apart of a human being, part by part or limb by limb, as it exits the mother’s womb.
Justice Brennan opined in Glass v. Louisiana, 471 U.S. 1080 (1985):
“in explaining the obvious unconstitutionality of such ancient practices as disemboweling while alive, drawing and quartering, [and] public dissection, . . ., the Court has emphasized that the Eighth Amendment forbids “inhuman and barbarous” methods of execution that go at all beyond “the mere extinguishment of life” and cause “torture or a lingering death.” . . . [B]asic notions of human dignity command that the State minimize “mutilation” and “distortion” of the condemned prisoner’s body. These principles explain the Eighth Amendment’s prohibition of such barbaric practices as drawing and quartering.”
The general principles that the United States Supreme Court relied on to decide whether or not a particular punishment was cruel and unusual were determined in Furman v. Georgia, 408 U.S. 238 (1972), wherein Justice Brennan wrote, “There are, then, four principles by which we may determine whether a particular punishment is ‘cruel and unusual’.”
• The “essential predicate” is “that a punishment must not by its severity be degrading to human dignity”, especially torture.
• “A severe punishment that is obviously inflicted in wholly arbitrary fashion.” (Furman v. Georgia temporarily suspended capital punishment for this reason.)
• “A severe punishment that is clearly and totally rejected throughout society.”
• “A severe punishment that is patently unnecessary.”
“The function of these principles, after all, is simply to provide means by which a court can determine whether challenged punishment comports with human dignity. They are, therefore, interrelated, and, in most cases, it will be their convergence that will justify the conclusion that a punishment is ‘cruel and unusual.’ The test, then, will ordinarily be a cumulative one: if a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes.”
Aside from the clearly supportive foundational precept contrary to the abortion practice as cited (the disallowance of drawing and quartering of humans), this precedent reasoning is demonstrably applicable to the extent that all asserted components of the principle are interrelated and converge in the abortion process: it is tortuous and degrading to human dignity, it is severe and arbitrary in its execution, it is rejected by a majority of citizenry and is patently unnecessary. This conclusion is irrefutable on any platform of sound reasoning, without which the concept of adjudication is futile, civil order is impossible and civilization does not exist.
This sounds like the kind of set-up you get on an LSAT exam followed by a series of questions.
Hard to believe that Estovir is actually a physician.
He graduated summa cum laude from the University of the Bahía De Cochinos.
Former prosecutor, Andrew McCarthy takes the view that releasing the draft opinion was criminal.
He also states that the Court should decide the case soonest using Alito’s draft. Any watering down will show that the Court gets shaky in the face of mob intimidation. Do that and the next time there is a difficult issue….bricks instead of briefs. This is not the time to go wobbly. The mob has no legitimate say.
I can see the demonstrators now in front of a Supreme Court justices home. Who the hell do these people think they are?
The Progressive Brown Shirts. They do exactly what the left wants….Chaos. Cloward and Piven.
American citizens exercising their constitutional right to protest the third political branch of government. And, yes, I meant to say the Supreme Court is a political entity.
I agree completely. And, unlike the MAGA bunch who stormed the Capitol, they have not attacked the building and the people in it. Protest, not criminal riot–there is a difference!
Nearly all of what occured J6 was protest.
During the Kavanaugh protest one protestor took an Axe to a senators door.
Ultimately charges were dropped and the axe was returned.
Alishi Babbit was murdered – it is not legal to murder someone merely for tresspassing in a public building.
It is increasingly likely the woman killed int eh west tunnels was beaten to death too – and that is what sparked the worst violence at the capital. Current and Former law enforcement and military – responding with violence to egregious police brutality.
It is possible I am wrong – but what little video we have supports what I have said.
We should be able to easily agree that all of the video of J6 should be made public.
Then you can spend your nights reviewing it to look for more insurectionists. And the rest of us can see what the whole picture paints.
As to the violence of prochoice protestors – remarks from Schumer, Pelosi, Waren, Watters and many others are more incitement than anything said at J6 by Trump or anyone else.
Supreme court justices have received death threats.
So you understand the ramifications if any of the 5 justices were to actually be attacked ?
J6 would look like a picknick.
Regardless you rant of J6.
There was no insurection – had protestors brought guns – Trump would be president.
They did not. Contra left wing nuts – no one sought to impose Trump on the country by force.
What they wanted was real inquiry into an lawless, and corrupt election.
There was no arson, aside from breaking down illegal barriers there was very little destruction of property.
There was very little looting. No one brought bricks. No one threw bricks.
The left wing protests of the summer – resulted in arson, death, and wanton destruction.
Billions in property damage.
To what purpose ? to seek redress for the laughably false beleif that thousands of unarmed black men are murdered by police each year.
There are more black men killed each year in my small city by other blacks than unarmed black men in the country killed by police.
Whether you like it or not – the 2020 election stinks to high heaven.
Ignoring all the speculation, claims of fraud, lawlessness, large scale corporate bribery.
throughout the country Biden LOST ground everywhere in comparison to Clinton, and Trump gained ground everywhere.
With the exception of half a dozen cities that Biden never visited where the results were dramatically deviant from nationwide tends.
That prooves nothing – EXCEPT that REAL INQUIRY is required.
Well stated. Truth is stronger than lies, but, unfortunately, there are too many people who are willing to disregard the truth, even when the lies aren’t theirs.
Truth is unfortunately not stronger than a modern public education – or worse advanced education at Harvard or Yale.
Most of the arguments we face from the left today are both OBVIOUSLY ludicrously stupid, and unbeleiveably short sighted.
Svelaz is arguing that Myorkas has the discrition to do whatever he pleases to NOT enforce immigration law.
Assuming he wins – the next Republican HHS secretary will have the power to ignore PPACA into non-existance.
Is there no democrat ever that thinks – What will republicans do with the power I am claiming I have ?
On J6 protesters were constitutionally free to beleive the election was stolen – even if they were actually wrong.
The right to assemble, freee speech, perition govenrment are not preconditioned on being right.
They were free to PLAN to protest.
Next they were free – just as Kavanaugh protestors and prochoice protestors, to go into the capital and bring their demands directly to congress.
But unlike Kavanaugh protestors and prochoice protestors they were DENIED that right.
That has as of yet not been investigated.
You ranted like loons when violent protestors were removed from in front of the whitehouse – which is NOT where the law is made.
No one who threatened to kill trump has been charged with sedition.
Sorry – but there is a massive double standard.
I was very disturbed by the conduct of Kavanaugh protesors, it changed my perspective. Bu with few exceptions they were not criminals.
You are free to be disturbed by J6. But you are a hypocrite if you treat it differently, with respect to the law.
What we see with the J6 prosecutions is typical of the left – make up the law as you go and apply it one way to your enemies and another to your friends.
The jan6 “hearings” are simply that. No “making up the law as. . .”, no “laws” are being made in the committee.
Also, I imagine you felt it COMPLETELY appropriate for congress to hold the(several years long), Benghazzi hearings, huh?
And that makes them wrong.
Congress is not a law enforcement agency.
They have two roles:
The creation of laws
The oversight of government.
Any committee that does not have one or both of those as its CORE purpose is unconstitutional.
Unfortunately the only over site of congress is voters.
So the only means to reign in most rogue actions by congress is voters.
But the absence of oversite does not make the conduct of the J6 comittee legitimate.
Benghazi was legitimate govenrment oversite – just as the hearings into the Beruit Marine baracks bombin were.
The difference is that Reagan took public responsibility quickly, and as a result the hearings were not politically charged and focused on what went wrong and why.
The oposite occured with Benghazi. From the start the Obama administration LIED about Benghazi.
Clinton knew within hours of the start that this was an al Qaeda affiliated organized terrorist attack and told some foreign leaders that.
Without the lies – the hearings would have proceded much as the Beruit ones.
Some people would have lost their jobs. Which is appropriate when there is large scale government failure.
But Benghazi took on further significance when it was discovered that Hillary Clinton had exfiltrated classified material from the State Department SCIF to her basement bathroom server. Later we learned that a hostile foreign power had accessed this information in real time.
We are fighting over J6 – with democrats trying to manufacture a crime – this was a real crime – a violation of the espionage act.
While it was not the most consequential violation – but it was the largest violation ever of the portion of the espionage act barring reckless or careless releases of classified information by a government employee, and most anyone but Clinton would have been prosecuted.
Regardless, the investigation of conduct by those in government is government oversite – a legitimate role for congress.
With respect to the J6 hearings the following fall into legitimate government oversite.
Examining the conduct of the Capital police.
Examining the conduct of both the legislative and executive branches in preparation for J6.
With respect to subpeonas for people advising the president – that is an issue for the courts – so long as they decide the issue consistently from one administration to the next.
If you decide that All Trump’s advisors must testify – then the Republican congress in 2023 can have a field day eliciting testimony from anyone in the Biden whitehouse.
Executive priviledge exists or it does not, and if it does it must have clear scope that is determined by uniform standards – not one party vs. another
Personally I thing executive priviledge exists, but that it is extremely narrow. Matters of national security primarily.
Separately The whitehouse counsels office and Trump’s lawyers are independently protected by lawyer client priviledge.
Beyond that I woulds subject everything else at the whitehouse to congressional oversite. Biden, Trump, the same.
With respect to private parities there is no oversite role that allows congress to subeona a private party.
With respect to its legislative role – that is still a narrow domain.
Post Iran contra the courts expanded limited grants of immunity to members of the executive. I would go further.
Congressional subpeonas to private parties should automatically include immunity to whatever they testify to.
This might stop congress from trying to function as a partisan parallel DOJ.
But those are my views.
It is up to the courts to decide what congress can subpeona,
But whatever they are permitted, is permitted regardless of who is in power.
Conducting the J6 hearings the way the Benghazi ones were – would be fine with me.
Limit the hearings to government oversite. respect whatever the courts past limits regarding executive priviledge, and follow the rules of the house – requiring proportionate representation, and each party selecting its own members.
And you can have whatever J6 hearings you wish.
What you have has no resemblence to Benghazi,
And to the extent that there was a governmentr screw up on J6 – it was with congress.
There’s already an investigation occurring. No way to know whether a crime occurred until they determine who leaked it.
It strikes me as unlikely that a February first draft would be the current draft, so it’s foolish to assume that any changes in the final version come from “mob intimidation” rather than the normal court processes of refining drafts. Also no reason to assume that the majority who voted to reverse and remand agreed with everything that Alito wrote in the first draft and would sign onto it now.
They should go on with their normal processes and release the actual opinion when they’ve each written what they want in terms of the majority or plurality opinion, concurrences, and dissents.
“The mob has no legitimate say.”
Agreed, but Andrew McCarthy doesn’t either, nor do you, nor do I. The ones with a legitimate say are the Justices.
“No way to know whether a crime occurred until they determine who leaked it.”
Exactly who would be authorized to anonymously leak a decision early?
This leak is a crime.
Ask the Marshal of the United States Supreme Court, Col. Gail Curley, who is on the case.
If Justice Alito leaked it, for example, that would be legal.
Better for you to remain silent and be thought a fool than to speak and remove all doubt.
Good to know, Justice Alito leaked the decision, and you persist anonymously – such conviction and aplomb – how courageous.
If my aunt had balls, she’d be my uncle…
sadly, she doesn’t, she isn’t, Alito didn’t leak it, and “leaking” a Supreme Court decision is a crime.
You wish to pretend that you guesses are fact.
I will not join you in your delusion.
I did not claim that “Justice Alito leaked the decision,” because unlike you, I do not pretend that a possibility definitely occurred. Take an English class and learn how conditional (if-then) statements work.
Nope, not a crime.
If we accept the unlikelihood that the February first draft would be the current draft, then we are left with an assumption, only, that there are subsequent drafts in existence. That would mean that your next phrase, “so it’s foolish to assume that any changes in the final version come from “mob intimidation” rather than the normal court processes of refining drafts,” employs a bit of faulty reasoning, because we do not know if any subsequent drafts have been written, and would be relied upon as the final draft. Certainly, any further drafts penned after the leak, and the subsequent outbursts from “frenzied” supporters of Roe, could easily be influenced by the justices’ desires for self preservation, depending on their fear levels, and the levels of intimidation used. Plus, it is certainly no consolation to average Americans, hearing that an investigation is “already occurring” which, presumably, involves some agency under the control of the current administration. There are no assurances that this will not be swept under the proverbial rug, as seems to be this administration’s favorite ploy. The mob might not have a “legitimate say,” but the possibility of influence does still exist. And that is descriptive of the current state of affairs in this country, today; scream the loudest, scream the longest, threaten violence, and carry out violence, and your cause will be catered to.
“we do not know if any subsequent drafts have been written”
Agreed, we don’t know.
But it is unlikely that no edits have occurred in the intervening 2.5 months. It’s identified as a first draft because Alito himself expected to edit it. It’s identified for circulation to others for feedback.
“That would mean that your next phrase, “so it’s foolish to assume that any changes in the final version come from “mob intimidation” rather than the normal court processes of refining drafts,” employs a bit of faulty reasoning, because we do not know if any subsequent drafts have been written, and would be relied upon as the final draft.”
No, there is no faulty reasoning. It is very likely that the final draft will differ somewhat from the first draft. That’s simply the nature of creating a first draft and circulating it to get feedback, with an expectation of editing the first draft in light of the feedback and given one’s own continued work on making one’s argument stronger. (Have you ever written drafts for publication where you seek feedback from others and go through rounds of revision before settling on a final draft? I have, though not as a lawyer. Is it especially the case if you’re co-authoring something with someone. In this case, it isn’t formal co-authorship, but the others will formally decide either to join the opinion or choose to write a concurrence or dissent.) My point is simply: IF there are differences between between the first draft and whatever the final version is, THEN one should not assume that the edit occurred in response to “mob intimidation,” because that is not the only reason that edits would occur to a first draft. There is nothing “faulty” in noting that fact.
“any further drafts penned after the leak, and the subsequent outbursts from “frenzied” supporters of Roe, could easily be influenced by the justices’ desires for self preservation”
Again: I expect that further drafts were already written in between mid-Feb. and last week.
Your conjecture that “further drafts penned after the leak” could be “influenced by the justices’ desires for self preservation” is possible, but it isn’t certain, and frankly, I doubt that they’re so easily influenced. They have lifetime appointments and security details.
“threaten violence, and carry out violence, and your cause will be catered to”
According to our LE agencies, there is more domestic violent extremism / domestic terrorism on the right than the left.
I wonder why the same judges who go far beyond what Roe requires to strike down anti-abortion laws also bend over backwards to uphold gun control laws?
By the way, would you believe me if I told you that FJB voted for the Human Life Federalism Amendment?
I looked at my notebook and found this lecture by Turley:
“We should want our justices to have consistent voting records based on their views of jurisprudence. The alternative is outcome driven justices who adopt conflicting interpretations to reach the “right” result. To their credit, liberal justices like Ruth Bader Ginsburg follow a consistent view of the Constitution, allowing for more evolutionary rights as part of a “living” Constitution. While this view certainly has many detractors over the fluidity and indeterminacy of the underlying rights, these justices have a reasoned and good faith foundation for their approach.”
If a right of privacy, in fact, had no conception in the Constitution as written by 18th Century men, so be it. I don’t wish to live pursuant to a document frozen in time for over 200 years written by men though brilliant who could not possibly have foreseen what the future would hold. I therefore subscribe to the living Constitution jurisprudence which Turley acknowledges IS a *reasoned* approach and propounded *in good faith* despite those who claim otherwise.
The Constitution already provides a reasoned approach to an unforeseen future. The genius of the creators of the Constitution is that they foresaw an unforeseen future and provided a method to react to that future. It’s called an AMENDMENT. That’s why there is no need for a ‘living Constitution’ approach. If issues arise of sufficient import, there is that built-in method of maintaining a ‘living Constitution’. And it was intentionally made to be a slow, deliberate process to prevent knee-jerk reactions to popular political passions of the moment. Only when a change is widely accepted over time and across a large portion of the populace should such changes occur. That’s why we as a country have made fewer than 20 additional Amendments in 230 years.
And if the Court finds it necessary to protect a minority from discrimination by the majority or otherwise makes an unpopular decision, the Congress can correct that decision by an AMENDMENT.
It’s due to the fact that the Court has dutifully created a Common Law by virtue of its decisions interpreting the Constitution broadly that there has been the need to pass only 20 Amendments.
“It’s called an AMENDMENT.”
So there needs to be an amendment to protect every right not listed in the Constitution? That’s going to be a very, very long list. (Besides, 9A already handles that issue.)