The Daily Parker

Politics, Weather, Photography, and the Dog

Who took a leak on the Supreme Court?

South Texas College of Law Houston Law Professor Josh Blackman sketches out a timeline pointing to a right-wing Justice's clerk as the likely source of the Dobbs leak:

First, where did the leak come from? Most people are presuming this leak came from someone with access to the opinion, such as a Justice or a clerk. That presumption is probably correct, but it is also possible there was some illegal exfiltration of the document. ... People who are fanatical about abortion may go to great lengths to support their cause.

Fourth, Politico got the scoop. Not the Washington Post or New York Times or WSJ or NPR. Or, perhaps other outlets had a copy of the opinion, but only Politico was willing to run it. I still think WSJ had the opinion last week, in light of their editorial. The Supreme Court is in worse shape than I could have imagined.

Josh Marshall draws lines between Blackman's dots:

[T]he rapid-fire follow-up reporting on John Roberts’ position on the Mississippi case, just hours after the Politico exclusive, made me think at the time that the leaked draft opinion wasn’t a one off thing. It seemed part of a larger breakdown of secrecy or on-going leaks tied to the Mississippi abortion case. You don’t come up with details about the Chief Justice’s position and arguments from internal deliberations on one of the biggest cases in decades in an hour and a half if you’re beginning from a cold start. Then this morning I found out about this Wall Street Journal opinion page editorial from April 26th in which they fairly transparently write about current Court deliberations in the Mississippi case, specifically that John Roberts was trying to pull an unnamed conservative Justice back from fully overturning Roe.

[W]hy the column in late April? And why the specifics? It certainly reads like the authors had an inside read on on-going deliberations and fears that Roberts might be in the process of sneaking a defeat from the jaws of victory.

It reads even more like that when you read the piece in the context of the subsequent leak.

Blackman is a big advocate for overturning Roe. But that’s mostly neither here nor there for our present purposes. What’s interesting is that he’s written extensively about previous cases when Roberts nudged the Court toward less right-wing decisions and cases where there were leaks and pressure campaigns trying to prevent him from doing so. So Blackman is something of an expert on this on-going pattern and history. He seemed to spot it from his first read of the Journal editorial. Indeed, if I’m reading his piece correctly he seems to think the Journal may well have had a copy of the Alito opinion too.

(Emphasis in original.)

So, some clerk in Justice Alito's (R) or Thomas's (R) office gave photocopies of Alito's first draft to a number of right-leaning outlets, and Politico published first. All of this to push the Court towards a more extreme position than Chief Justice Roberts (I) can agree with.

More Dobbs reactions

A day and a half after the unprecedented leak of Justice Alito's (R) draft opinion in Dobbs v Jackson, everyone and her dog has a reaction piece:

  • David Von Drehle in the Post warns that Alito's arguments in Dobbs, if accepted as the final majority opinion, would imperil many other rights based on privacy law: "[S]hould Alito’s draft opinion be affirmed by the court’s majority, there will be little to prevent states from enacting limits [on contraception] if they wish. Women will have only as much guaranteed autonomy over their childbearing as they had in 1868. Alito’s draft recognizes the rights of an hour-old zygote, but not of a 12-year-old impregnated by a rapist."
  • Jennifer Rubin concurs, saying the Court's "religion-driven mission" puts other settled law like Griswold v Connecticut and Lawrence v Texas in the crosshairs: "At its core, this Supreme Court’s right-wing majority seems eager to cast aside the restraints of precedent, making good on their supporters’ agenda rooted in Christian nationalism. In assuming life begins at conception (thereby giving the states unfettered leeway to ban abortion), Alito and his right-wing colleagues would impose a faith-based regimen shredding a half-century of legal and social change."
  • Josh Marshall calls bullshit on Alito's long-professed "originalism:" "Alito recognizes that there are interpretive frameworks that address new issues not explicitly referenced in the constitution. That’s in this decision. But he keeps coming back to “history and tradition” as what really seems like a separate basis of authority. Basically old school values. And lots of rights won’t make that cut."
  • Alex Shephard calls bullshit on Republicans trying to blame the leak for the Court's loss of legitimacy when, really, the activist Republican justices killed it: "There is a long tradition in conservative circles of finding every opportunity to claim victimhood. ... [But] the court’s legitimacy problems can, frankly be traced back to Bush v. Gore, if not earlier, when five Republican-appointed justices decided a presidential election based on their own partisan affiliations; this paved the way for President George W. Bush to appoint Samuel Alito."
  • Law professor and former Federal prosecutor Joyce Vance concurs, saying "Reversing Roe, particularly in the manner Alito does, condescending, patronizing, forcing an end to women’s full participation as equals in society, will forever change the belief that the court is above politics and the public’s confidence in the Court."
  • Adam Liptak of the Times agrees, hinting that Alito or one of his clerks might have leaked the draft as away of pressuring Justices Kavanaugh (R) or Gorsuch (R) to stay in the majority.
  • George Will, fresh from his local dispensary, says the end of Roe gives everyone a chance to start over. Everyone, I suppose, except the women whose lives will be ruined or lost because of unwanted or unsafe pregnancies.
  • Stephen Colbert Tweets, "I can’t believe how gullible Susan Collins is. But Susan Collins can." But Eric Garland reports on some aspects of Collins' history that paint a much worse picture of the Senator.
  • Julia Ioffe reminds us that five of six of the Republican justices were appointed by presidents who lost the popular vote.

But, hey, guys? Please keep covering the other stories of the day. Like, for example, the corruption of Justice Thomas (R) and his wife.

Justice Ketanji Brown Jackson

The US Senate did something pretty cool yesterday:

The Senate on Thursday confirmed Judge Ketanji Brown Jackson to the Supreme Court, making her the first Black woman to be elevated to the pinnacle of the judicial branch in what her supporters hailed as a needed step toward bringing new diversity and life experience to the court.

Overcoming a concerted effort by Republicans to sully her record and derail her nomination, Judge Jackson was confirmed on a 53-to-47 vote, with three Republicans joining all 50 members of the Democratic caucus in backing her.

Not everyone shared in the joy of the day. As applause echoed from the marbled walls, Senator Mitch McConnell, Republican of Kentucky and the minority leader, turned his back and slowly walked out, as did most of the few Republicans remaining on the floor, leaving half of the chamber empty as the other half celebrated in a stark reflection of the partisan divide.

“When it came to one of the most consequential decisions a president can make, a lifetime appointment to our highest court, the Biden administration let the radicals run the show,” Mr. McConnell had said earlier, making one last argument against Judge Jackson, whose nomination he framed as an example of extremists taking control of the Democratic Party. “The far left got the reckless inflationary spending they wanted. The far left has gotten the insecure border they wanted. And today, the far left will get the Supreme Court justice they wanted.”

Senator McConnell is full of shit, of course, and he knows it. Jackson would have made any Republican Senator's heart sing only five years ago. But, hey, thanks to Senators Susan Collins (R-ME), Lisa Murkowski (R-AK), and Mitt Romney (R-UT), we may have gotten the last bipartisan confirmation in our lifetimes.

On July 1st, Justice Jackson will become only the 7th person to sit on the Court who wasn't a white guy.

President Biden's first State of the Union

As I did in 2020, this year I live-posted SOTU on Facebook. Here are my posts, in the order I made them:

OK, here we go with the SOTU. Last time (2020) I needed two martinis and watched with the sound off. This time, I see no need for alcohol and I'm happy to listen. What changed, I wonder?

Ukrainian ambassador gets an extended standing ovation from the entire government of the United States. She might prefer fighter jets and ammunition, but it was a nice gesture

We're putting troops along the Russian border...whoo boy

Yes! End "trickle-down" policies which only concentrate wealth at the top

Infrastructure decade. Yes.

It's so nice to hear a coherent, positive speech from a man who cares about the job he has

I was already a little concerned about the "make it in America" rhetoric, and then cue the GOP chanting "USA, USA!"

Dignity! Yes, this is where Biden excels. Nice.

The wise grandfather is such a welcome contrast to the ugly uncle

I did not predict a chief prosecutor for pandemic fraud. Very good.

"The only president ever to cut the deficit by $1 trillion in one year." Partially disingenuous, but still true

Anti-virals on the spot at no cost if you test positive at a pharmacy. Wow

Bipartisan standing O on "our kids need to be in school."

"Let's see each other as...fellow Americans." Most of the GOP clapped too. Good.

Strong statement against "defund the police." And yes! Repeal the liability shield protecting guns!

Awww. Justice Breyer looks so cute

Wow, Katanji Brown to "strong borders" in one sentence? Grandpa missed a paragraph break

Did the speechwriters run out of time? It seems like we're in the "and another thing" section. The recap in sonata-allegro form, I suppose

Wow, connecting military burn pits to his son's cancer

ARPAH [Advanced Research Projects Agency for Health]. We can do this.

The state of the Union is strong because you, the American people, are strong.

Of course the outburst was from Boebert.

Wow, what a contrast from last time. No martinis required, but I believe I will have a wee Lagavulin.
Meanwhile, Cassie has graduated to loud snoring:

And yes, I did have a wee Lagavulin:

Here's the unedited thread:

Still the top news story

My friend in Kyiv posted on Facebook an hour ago about how many parking spaces are available in her neighborhood. She also couldn't figure out for a few seconds why there was a pillow in her bathtub this morning. So things could be better over there.

How much better could it be?

Meanwhile...

Maybe in my lifetime we'll have peace in Eastern Europe and a transit system in Chicago as good as any in Europe 20 years ago. I'm not sure which is more likely.

Earth to Warren...come in, Warren...

One hundred years ago today, President Warren Harding installed a "Radio Phone" in his White House office. As the Tribune reported, "Navy radio experts commenced work to-day installing the latest scientific means of communication."

Flash forward to now:

  • Margaret Talbot argues that Justice Amy Coney Barrett, whom nobody ever elected to public office, is playing a long game to bring her right-wing Catholic ideology into the mainstream—or, at least, to enshrine it in the law.
  • Times columnist Margaret Renkl, writing from Nashville, argues that Tennessee has bigger problems than just one school board banning Maus.
  • Ultra-low-cost airlines Spirit and Frontier have merged, after years of dating and several previous feints toward the altar.
  • The oldest pub in the United Kingdom will close because of lost revenue during the pandemic, according to its current proprietor. The landlord hopes the pub, first opened in 793 CE, reopens soon.

And finally, Max Boot asks, why does anyone care what Ben, Jerry, Whoopi, or Joe have to say? In my conversation just now with the reader who sent me the link, I pointed out that people have had about the same reaction to every new communications technology back to the printing press. (Probably back to the stone tablet, if you really think about it.)

Sigh of relief

This is welcome news:

Justice Stephen Breyer will step down from the Supreme Court at the end of the current term, according to people familiar with his thinking.

Breyer is one of the three remaining liberal justices, and his decision to retire after more than 27 years on the court allows President Joe Biden to appoint a successor who could serve for several decades and, in the short term, maintain the current 6-3 split between conservative and liberal justices.

At 83, Breyer is the court's oldest member. Liberal activists have urged him for months to retire while Democrats hold both the White House and the Senate. They contended that Justice Ruth Bader Ginsburg stayed too long despite her history of health problems and should have stepped down during the Obama administration.

Of course, we'll be sad to see Breyer retire. But it looks likely that we won't have another opportunity to appoint a non-partisan justice for many years.

Now if only Thomas and Gorsuch would retire...

Monday, Monday

The snow has finally stopped for, we think, a couple of days, and the city has cleared most of the streets already. (Thank you, Mike Bilandic.) What else happened today?

Finally, Weber Grills apologized today for its really unfortunate timing last week, when it emailed thousands of customers a recipe for BBQ meat loaf—on the day singer Meat Loaf died.

What to teach law students

UC Berkeley Law School dean Erwin Cemerinsky and UTA Law & Government professor Jeffrey Abramson try to keep a stiff upper lip when teaching in the shadow of the most partisan Supreme Court in a century:

For the first time in American history, the ideology of the justices precisely corresponds to the political party of the president who appointed them. All six conservatives were appointed by Republican presidents and all three liberals were appointed by Democratic presidents.

If students are to one day become effective litigators on constitutional rights, they will need to understand the ideologies of the justices interpreting the law. In the past, we certainly discussed the ideology of the justices with our students, but we must focus on it far more now as the ideological differences between the Republican-appointed justices and judges and those appointed by Democratic presidents are greater than they have ever been.

Second, we must remind students that there have been other bleak times in constitutional law when rights were contracted. From the 1890s until 1936, a conservative Supreme Court struck down over 200 progressive federal, state and local laws protecting workers and consumers. In the late 1940s and early 1950s, the court refused to stand up to the hysteria of McCarthyism. The current court will not last forever, though it may feel like that to them.

Third, we should direct focus on other avenues for change. Students need to look more to state courts and legislatures, at least in some parts of the country, as a way to advance liberty and equality. For instance, the Massachusetts Legislature passed a law known as the “Roe Act,” protecting a woman’s right to abortion under state law, no matter what the Supreme Court decides.

In case you didn't already notice it's 1890 all over again, I suppose. I also quibble with "For the first time in American history, the ideology of the justices precisely corresponds to the political party of the president who appointed them." I believe that was also the same situation in 1790, with the first Court appointed by Washington.

Evening reading

Messages for you, sir:

I will now go hug my dog, who set a record yesterday for staying home alone (8 hours, 20 minutes) without watering my carpets.