Supreme “Stench”: How Politics Replaced Principle in the High Court

Below is my column in USA Today on the leaking of the draft opinion in Dobbs v. Jackson Women’s Health Organization. I previously discussed the “stench” raised by Justice Sotomayor and how it smelled like mendacity to blame her three new colleagues. Now that stench is overwhelming not only due to the intentional leaking of the opinion but the defense of the leaker by many in the press. The leaker is being called “brave” and a “hero” by many on the left. While denouncing what they see as the Court abandoning its principles, they are celebrating someone who violated every ethical and professional principle in leaking this draft opinion.

Here is the column:

Supreme Court Justice Sonia Sotomayor surprised many court watchers in December during the oral argument in Dobbs v. Jackson Women’s Health Organization when she complained about the “stench” of politics pervading the case over abortion rights.

The stench became overwhelming Monday night when Politico published a leaked copy of a working draft of the majority opinion in Dobbs.

Chief Justice John Roberts verified the draft’s authenticity Tuesday and launched an investigation.

The leak in the abortion case was a despicable act that shocked even the most cynical in Washington.

The draft opinion, if left unchanged, would sweep away Roe v. Wade and decades of precedent. The draft’s author, Justice Samuel 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.”

This draft and the alignment of justices can change.

What will not change is that stench. The court has lost a type of institutional innocence in maintaining confidentiality through decades of hard-fought and heated legal disputes.

Court was island of confidentiality

Even in a city that floats on a rolling sea of leaks, the Supreme Court has long been an island of integrity and confidentiality. It was an inviolate rule that members and clerks do not leak either the deliberations or decisions of the court.

Indeed, for those of us who have covered and written about the nation’s highest court for decades, we never thought this day would come.

This was clearly a politically calculated act by someone who was willing to abandon every ethical and professional principle for a political cause. There is no obvious reason to leak other than to unleash outside pressure on the court and to try to push Congress to pass the Women’s Health Protection Act to codify Roe v. Wade.

If that was the purpose, it seems quickly realized as figures like Sen. Bernie Sanders, I-Vt., used the leak to call for not just the passage of the federal law but for killing the filibuster as well: “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”

It is doubtful the leaker expected to coerce a change in votes on the court. It is certainly true that a tentative opinion can change dramatically over the countless drafts sent between chambers. It is common for majority opinions to become dissents or to fracture in a plurality decision as justices work through the issues.

However, this leak makes such second thoughts less likely, not more.

According to Politico’s reporting, Alito was initially joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Any change in the vote would now leave the impression that the court could be manipulated through outside pressure. Indeed, if Roberts was on the fence, this leak, if anything, might push him back toward the right of the court.

Faced with such a raw political act, justices are more likely to dig in than abandon their initial votes.

This leak was a move directed at Congress and the midterm elections. In some ways, that makes it even worse.

Politics is the forbidden fruit of judicial ethics. Yet it is a temptation that has been resisted through the years despite the Supreme Court being located across the street from Congress in the middle of a city where politics is the primary industry.

Injection of politics

Sotomayor’s complaint of the “stench” of politics in December was viewed by some of us as a departure from the decorum of the court. She was referring to how the three new members were widely viewed as having been nominated to reverse Roe and other cases by sheer force of numbers. It was itself the injection of politics into the deliberations.

Before the argument, Sotomayor shocked many in calling upon students to campaign against abortion laws in anticipation of pending abortion cases before the court. She declared in October, “You know, I can’t change Texas’ law, but you can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.”

It now appears that someone with access to internal deliberations of the court decided to find a way to be an instrument of change in a way that will leave a stench for many years to come. Few of us believe that any of the justices would countenance such an unethical act. The investigation instead will focus on the judicial clerks and staff of the court – an investigation that will shatter the court’s collegial and sheltered culture.

One thing is now certain. The court will never be the same. There is a loss of innocence in all of this, a realization that the court is no longer immune from politics.

It is a moment like the one described by physicist J. Robert Oppenheimer at the realization of the atomic bomb: “In some sort of crude sense which no vulgarity, no humor, no overstatement can quite extinguish, (we) have known sin; and this is a knowledge which (we) cannot lose.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.

278 thoughts on “Supreme “Stench”: How Politics Replaced Principle in the High Court”

  1. You point to “the framer’s original federalism intent,” while ignoring that they also said “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    The Constitution didn’t end with the Framers. It also says “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law …”

    The right to bodily autonomy should be among those retained by the people. The people should not be deprived of the liberty to control how their own reproductive organs are used.

    1. ATS (or not): The right to bodily autonomy should be among those retained by the people. The people should not be deprived of the liberty to control how their own reproductive organs are used.

      That is a debatable point, but it is off target. The only question is whether it is a federal or a state issue. That discussion is intentionally blurred when talking about expanded rights when the states are the ones that should be responsible.

      Take it up with the states or pass an amendment. Don’t legislate from the bench.

      1. Stating that the right to control one’s reproductive organs is an unenumerated 9th Amendment right is not “legislating from the bench.”

        1. Where does #9 talk about reproduction, ATS? Where does the Constitution talk about abortion? It talks about rights “retained by the people.” The Court created the federal right to determine when an abortion is legal. If your claim is correct, then the entire idea of the trimester system wouldn’t be proper, for it should be all or none.

          You forgot the 10th amendment. It says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Court’s overturning of Roe returns such decisions to where it belongs, the people or the State.

          Petition your State for the abortion rights you want or pass a Constitutional Amendment. Stop bellyaching and stop twisting what the Constitution says by only looking at certain parts. That is dishonest.

          1. “Petition your State for the abortion rights you want . . .”

            So tyranny of the majority is wrong on the Federal level. But it’s ok on the State level.

            That is not a principled argument. And it is not consistent with America’s system of government: A constitutionally limited *republic*.

            1. “That is not a principled argument.”

              Of course, it is principled, Sam. It is based on the Constitution. You have a libertarian ideology that I respect. However, when dealing with the law, I use the Constitution as my guide, not my doctrine. The Constitution is there to protect from tyranny and attempts to divide the powers up so that it becomes more difficult for tyranny to develop. The Constitution is not perfect.

              1. “It is based on the Constitution.”

                State-level tyranny of the majority is sanctioned by the Constitution?!

                Good luck making that argument.

                1. Sam, what argument are you having trouble with. Is it the one that states have constitutions and the people vote for those representing them?

                  It would be fair to say that government represents tyranny to various degrees because they have guns that they will use if you don’t do what you are told. However, the government is necessary for multiple reasons that you already know.

                  Now let me hear the point you were trying to make. Deal with what I said and not a straw man argument.

    2. SCOTUS isn’t saying your arguments are or are not valid. They’re saying those arguments need to be made at the state level first. Then and only then, if laws enacted at the state level are challenged, then they they may end up at the US Supreme Court.

      1. They were already made at the state level decades ago. That’s how Roe and Casey worked their way up to SCOTUS.

    3. You seem to discount the bodily autonomy of the unborn child that is murdered during every abortion. Ask any woman who’s tried to conceive and miscarried their “fetus” how they felt and they will tell you that their BABY died. An unborn child is only a fetus when it’s inconvenient to those who believe in “a woman’s right to choose”.

      1. An embryo has no bodiy autonomy. It is literally inside and attached to the woman’s body, where the woman’s body provides the embryo with oxygen, removes CO2, provides nutrition, regulates temperature, …

        More to the point, an embryo is not a legal person with any rights, nor did the Framers ever consider an embryo to be a person with rights.

        You want to refer to an embryo or fetus as a baby? Fine. It still isn’t a person and has no bodily autonomy. It only becomes a person and develops bodily autonomy at birth.

        1. ATS, a very sick grandma, “has no bodiy autonomy. It is literally inside” a hospital strapped to a bed with rails raised while the nurses “provides” grandma “with oxygen, removes CO2, provides nutrition, regulates temperature.” She will not have that long to live, and she is a non-person about her affairs managed by others.

          Your solution: Abortion?

            1. Anonymous the Stupid, you seem to be running out of words and arguments. The world sounds more peaceful.

      2. “An unborn child is only a fetus” for those who believe that words have precise meanings. And who believe that word inflation is more destructive than economic inflation.

      3. Ha….you’re inadvertantly arguing that a woman’s desire to finish her pregnancy and give birth is what gives
        value to the fetus. By contrast, an unwanted pregnancy has no equivalent social value to the woman. It’s just
        a biological barnacle.

  2. Dramatic Exchange On Thread!

    Allen Stewart says: May 5, 2022 at 11:37 PM

    Many scholars on both sides have said Roe v. Wade was poorly reasoned and based on flimsy, subjective opinions rather than the Constitution.


    This court aspires to take away rights women have depended on for 49 years. And Allen would have us believe public opinion should not factor.

    Allen argues that the court can only be guided by the Constitution. ‘And Federalist judges are the only proper stewards’.

    This argument presents the current court as ‘New And Improved’. Like the court of ’73 never read the Constitution. It never occurred to them! They hadn’t benefitted from the Federalist Finishing School.

    Like this current court is today’s Crest Toothpaste compared to what our parents used. Federalists have a clear perspective of what our Founding Fathers wanted. And they found a huge oversight in the Roe opinion.

    You see, women were never supposed to have reproductive rights. It was just a big mistake. A fluke of a ruling that somehow stayed on the books for 49 years.

    So even though the majority wants to keep reproductive rights, they have to be withdrawn. Because hick state legislatures are supposed to decide for women.

    No Federal law should shackle Christian men. Husbands must have the right to supervise their women. That was the intent of our founding fathers.

    And Federalists should be commended for having the fortitude to take away women’s rights.

    See how dumb this sounds? Just arrogant claptrap for really stupid people. But in the rightwing bubble this passes as ‘wisdom’.

    As for Allen Stewart, he is most likely the Blog Stooge. The Freddie Krueger of this forum who keeps reappearing as someone else.

    1. “This court aspires to take away rights women have depended on for 49 years.”

      What you fail to understand and don’t want to understand is that the removal of Roe doesn’t end abortion. Abortion remains based on state law. The consensus legal opinion would be that the Roe decision was a poor example of Constitutional law. Whereas the justices for the lower courts have leeway, the Supreme Court is supposed to base its decisions on the Constitution, not the popular opinion of the day. The amendment process is the only way to alter the Constitution. In this case, the question of abortion is placed back to the states where it belongs and where it has existed since colonial times.

    2. This court aspires to take away rights women have depended on for 49 years….You see, women were never supposed to have reproductive rights. It was just a big mistake. A fluke of a ruling that somehow stayed on the books for 49 years.

      You are correct, that does sound stupid. The right for women to reproduce has existed far longer than 49 years. What they’ve become dependent on over the last 49 years is a federally “legalized” means to not reproduce. That’s the opposite of reproductive rights. With that dependency came irresponsibility. The pro-life movement respects and promotes reproductive rights because they support the right of women to reproduce. They also respect the woman’s right to choose readily available methods preventing pregnancy. The pro-choice movement spawned the abortion industry that completely ignores those methods that prevent pregnancy because their business model is anchored in after-conception termination of a pregnancy. That industry will not cease to exist if Roe v Wade is overturned. Abortions will still be an available choice. I suspect that the pro-choice definition will evolve from choices made after irresponsible sexual practices, to choices made for responsible sexual practices.

      1. No, “a federally ‘legalized’ means to not reproduce” is NOT “the opposite of reproductive rights.”

        The right not to bring a pregnancy to term — for any of a variety of reasons, sometimes in combination, including a desire not to have additional kids right now, rape, poverty, risk to the woman’s health, medical diagnosis of severe fetal abnormality, … — is part of reproductive rights. Anti-abortionists do not “respect” that part of reproductive rights.

  3. ‘Note that protesting the certification of a contested election is an “insurrection” and the darkest day in the history of our democracy, whereas trying to intimidate the nation’s highest court into changing its ruling is just good citizenship.’


    1. Peaceful protest would have been fine on J6.

      Some J6 protesters were peaceful, but for hundreds of people, it was not a peaceful protest. For those people, it was a violent protest that was designed to delay or prevent the certification and intimidate Pence and Congress, and it succeeded in delaying the certification, as Pence and the members of Congress were evacuated from the Congressional chambers.

      We do not know who leaked the SCOTUS draft, or why that person did it. Mr. Pollak is assuming that the goal was “to intimidate the nation’s highest court into changing its ruling,” but he does not know this. It’s doubtful that the February first draft was even the current draft.

      1. “Peaceful protest would have been fine on J6.”

        I think all should agree on that, and for the most part, the people protesting were peaceful. Those that broke the law should be punished. Still, political retribution might be part of the punishment that left people in jail for a year. Some protesters spent a lot of time in solitary when they didn’t act violently and might even be innocent. Unanswered questions exist about their innocence. (Nordean is an example)

        When the BLM riots occurred throughout the US, many looters, arsonists and violent people weren’t arrested. They attacked a federal courthouse. The leftist control over the city government provided a free pass to most. The governing officials on the left did not uphold the rule of law.

        Full transparency is needed for Jan6, including a re-examination of the Babbitt killing and new interviews of all police officers that were there. Pelosi was the head of the chain of command for the security of the Capitol Building. That necessitates the release of ALL her communications, correspondence and activities. Everyone involved in Jan6 should release their correspondence as well. The Capitol Building videos should all be released. Those inciting the protestors should be reinterviewed, especially those known members of the FBI and the protestors thought to have a relationship with the FBI. Everyone and their superiors should be reinterviewed along with signed statements subjecting them to prosecution if they lied. Of course a new interview of the officer that killed Babbitt should be performed along with all the other officers. All that should be totally released. Some protestors are strongly thought to be from the left. They should be reinterviewed as well. The committee is not doing that though they collect that information from those on the right.

        Finally, for every person jailed, there should be a full report on why bail was or wasn’t given, why they spent time in solitary, and why they were not provided things regular prisoners obtain with signed signatures for those involved and all superiors. If one believes in the rule of law, one should demand that both sides be treated equally. I do not think that is what we saw. One arrested person was released as innocent because films showed him being led into the building by the police. That demands the release of more videos. The management of Jan6 is so biased that one can easily conclude that this was a political set-up even where some of the parties involved were guilty. We saw FBI involvement when Whitmer was kidnapped. Some of those FBI officials were transferred to the Jan6 investigation.

        One can agree with a fair policy that originates on the left, but one cannot agree with all the distortions of the law and information that occurred from Jan6.

        1. S. Meyer: Your two best sentences (for those in a hurry!):
          “Still, political retribution might be part of the punishment that left people in jail for a year.”
          “One can agree with a fair policy that originates on the left, but one cannot agree with all the distortions of the law and information that occurred from Jan6.” Thank you!

            1. ATS keeps providing his lists to prove guilt, but with time we have found that some who were in jail were unjustly accused, and at least one of those accused is now free. Another, Nordean, has videos showing he did nothing violent. Yet, despite what anonymous said and the fact that he was initially not jailed, he spent a year in prison, primarily in solitary confinement.

              Why? ATS makes his generalizations based on accusations where the accusers hide the proof. ATS is being deceptive. Charges are not convictions. They involve a lot of innocent people. ATS talks about hundreds, but how many did nothing wrong and were let into the Capitol by Capitol Police? How many of those hundreds may have been from the left or even people working for the FBI? How many that are not on the right will be convicted? How many were not arrested that were pushing for more aggressive activities but were not on the right?

              ATS is not being honest. He is not credible. Instead of linking to old data that is not based on videos and the like, he should be providing the names, offenses and videos of 50 people that were violent and destructive. We have already seen videos released that show the worst violence in part based on the angle of the videos, but Pelosi will not release the Capitol films that show other angles. One can only assume these actions by Pelosi are an assault on free people.

            2. Anonymous: This is my answer to your question:
              For one year, we have heard nothing from the Left and the media except: “Insurrection!” “Insurrection!” “The Jan. 6 Insurrection!!”
              ….More than one year later, there have been, what, about 750 persons charged in this matter?. Out of that, 11, yes, ELEVEN people were charged with insurrection/sedition (and at that, only seditious CONSPIRACY), and I think they were all from one group (Oath keepers). By far, the vast majority were charged with misdemeanors like trespassing and property destruction.
              Why is that, anonymous?

              1. lin, the prosecutors will only change for those crimes which a grand jury opines that they can prove beyond a reasonable doubt.

                1. (I think you mean indict. They already have been charged. I am talking about charges. Thanks

                  1. Sorry, I am talking about the misdemeanors, not the felony seditious conspiracy. Indictment, of course, means formally charged after grand jury.

                  2. lin, yes, but I stand by my statement. The prosecutor isn’t going to charge in situations without a hope of eventual success. Too busy as it is.

                  3. The legal system in different jurisdictions works differently.

                    In many places the police “charge” and whether a case can proceed is determined at a preliminary hearing before a magistrate.
                    In some places grand jury indictments are required for some crimes. to proceed to a trial.

                    1. Yes, the distinction is usually between felony vs. misdemeanor charges, and whether federal or state.

              2. lin, you replied to me, but you didn’t answer my question: According to you, which of those [J6 prosecutions] involve “distortions of the law” and how is the law being distorted?

                After you answer my question, then I will answer yours. Up to you whether both are answered or neither are answered.

                1. Anonymous: Please go back and read S. Meyer’s original comment. Then read my comment to him about what he said, to wit: “One can agree with a fair policy that originates on the LEFT (emphasis mine), but one cannot agree with all the distortions of the law and information that occurred from Jan6.”
                  THAT is what S. Meyer and I are talking about, and what I responded to you.
                  Please stay on topic. No more responses from me. thanks anyway.

                  1. Lin, ATS is playing word games and other games again. He is not using intellect to win the battle of words. He can’t. Instead, he is using gamesmanship and not doing well there either.

                  2. lin, I *was* on topic.

                    As you just noted, you said “one cannot agree with all the distortions of the law and information that occurred from Jan6.”

                    I asked you: According to you, which of those J6 prosecutions involve “distortions of the law” and how is the law being distorted?

                    I literally asked you to clarify what you were including in a category that you introduced, quoting you to make clear that I was asking you about what you wrote.

                    If you’re unwilling to answer that question, so be it.

  4. You posted this earlier, and it was removed for copyright infringement, and this copy will likely be removed by Turley or Darren as well.

    Fair use only allows you to copy a limited amount of copyrighted material.

  5. In the early 1960s, as a sixth-grade public-school teacher, I always began my class with the Pledge of Allegiance, followed by the Lord’s Prayer and ending with the singing of a patriotic song. This daily routine proceeded without a protest from any person or group.

    Then, one day in 1962, after the U.S. Supreme Court ruling that banned prayer in public schools, I had to announce to the class that we would no longer be able to say the Lord’s Prayer. Instead, we would have a moment of silence during which, if they wished, pupils could say their own private prayers. After several days of following this new practice, a young boy quietly came to my desk and asked if I could lengthen the moment of silence. When I asked him why, he said, “I’m having trouble getting all my prayers in.”

    I never forgot the sincerity of this child, and I think it says a lot about the influence of prayer in the public schools back in the day.

    1. “I never forgot the sincerity of this child, and I think it says a lot about the influence of prayer in the public schools back in the day.”
      We can trace a lot of our current problems with the permanent misfit class to the Warren Court. In their zeal to make things “right,” they destroyed the natural evolution of society, only to impose their sensibilities on it. In so doing, they unleashed an under-educated, deeply resentful mob into our public discourse leaving society unable to meaningfully respond. This sentimentalism in the law may have been the most damaging esoteric aspect of the era but neutering the legitimate means of enforcing societal norms both legally and culturally was the practical evil. It thoughtlessly elevated the rights of individual over society’s and destroyed any sense of balance between the parties.

    2. “. . . the influence of prayer in the public schools . . .”

      So it’s okay for the Right to inject its religious ideology into public schools. But it’s wrong for the Left to inject its ideology (e.g., CRT) into public schools.

      Adopt a principle. It’s good for your thinking.

  6. Jen Psaki smugly and arrogantly refuses to condemn the fascist behavior of their activist thugs now threatening SC justices and their families at their homes. Psaki only gets away with her unacceptable behavior because the press in that briefing room do not shout at her “Do you condemn this behavior?” “Do you condemn the leak?” “Does the president condemn this behaviour?” “Do you condemn it?”

    If this were Trump or any Republican admin there would be shouting coming from the press corps AT THE PRESS SECRETARY who stood there, tilting her head, smugly smirking and condescendingly refusing to condemn outrageous activism and destructive behavior.

    The Democrats must be decisively swept out of office in November. Their kind must never rise again.

    1. Jen Psaki’s show time on BSMFLSD should bomb in the ratings as well. She sucks something awful.

      1. With a face like hers, and a mouth as big and putrid, you know she sucks and swallows like a pro

  7. An Oddly Quiet Trump Isn’t Gloating About Alito’s Opinion

    It should be Donald Trump’s crowning achievement, one that fulfilled the deepest wish many conservatives have held for generations. Three of the Supreme Court justices appointed by the former president signed onto the initial draft opinion that appears to signal the end of the landmark abortions right case, Roe v. Wade.

    But at a moment of seeming triumph, the normally braggadocious Trump has been subdued.

    The former president, never one to shy away from taking credit for accomplishments, real or imagined, has yet to crow about the majority draft opinion. And when asked about it in interviews, he steered clear of anything resembling a victory lap. Instead, he expressed displeasure that the draft leaked.

    It is notable reticence on an issue that could give the former president another peg on which to build a possible 2024 White House bid. But it also echoes the position of much of the Republican party, which is keeping its powder dry on the draft opinion even as anti-abortion rights groups claimed victory.

    Like Trump, scores of Republicans have avoided or side-stepped discussing the substance of the ruling — something they have sought for their careers — to instead focus on the disclosure of the draft itself. For the party, the timing of the draft opinion and the soon-to-be-issued ruling on Roe is not politically ideal.

    At the moment, the upcoming midterms seem focused on inflation and other problems that are invariably blamed on the party of the current president, leading to strong odds that the GOP could win both houses of Congress. Ending the right to abortion is not broadly popular: A Washington Post-ABC News poll conducted last week found that 54 percent of Americans want Roe v. Wade to be upheld, while 28 percent want the decision overturned, with 18 percent being neutral.

    The fear among Republicans, including those close to Trump, is that a backlash to a decision abolishing a major constitutional right by a Supreme Court stacked with GOP appointees could alter the trajectory of the midterm campaigns.

    1. In unrelated Trump news today, the judge ordered a discovery schedule in Carroll v Trump, the defamation suit that E. Jean Carroll filed against Trump in response to comments he made after she claimed that he had raped her years ago.

      She still has the dress she wore and has asked the court to order Trump to provide a semen sample to test against a spot on the dress.

    1. Stooge, show us a poll from 1973 saying Americans were opposed to the decision.

      1. Irrelevant – public opinion should have no bearing nor influence on any matter before the Court, only the constitutionality of the laws involved.

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