Uproar Over Attempt To Obstruct SCOTUS?
Of course there will be an avalanche of commentary today—and likely until the decision is released—over the leak of a draft opinion written by Justice Alito. That draft—not the final opinion—overturned liberal abortion cases by at least a 5-4 vote. How it will turn out is anyone’s guess, but what we do know is that the unprecedented leak of a draft opinion to the liberal press was undoubtedly an attempt to influence and obstruct the functioning of the SCOTUS.
Below are three Twitter threads that look at different aspects of this event.
First, Doc Shipwreckedcrew approaches it from the standpoint SCOTUS history—always a relevant approach. The question becomes, in a sense, has Roberts lost control over the conservative justices? Does the leak discredit Roberts’ manipulative approach to Court management?
For those who aren't versed in SCOTUS history, Casey v. Planned Parenthood was voted out of conference by a 6-3 vote to overturn Roe. Over the course of several months while opinions were drafted, Justice Souter convinced Justices Kennedy and O'Connor to change their votes.
Justice Souter's idea was to affirm Roe, but create a new framework for reviewing state law restrictions on abortion under a new "undue burden" standard never before adopted for any other federal constitutional right.
The final vote was 5-4, with the 3 Justice "middle" plurality joined in the outcome by Justices Blackman and Stevens. The four dissenters -- who thought they had won 6-3 at conference -- were Rehnquist, White, Thomas, Scalia, and Thomas.
The draft released is from February, and would seem to speak for 5 Justices at least because it is captioned "Opinion of the Court". There are 3 obvious dissenters, leaving only CJ Roberts as unknown. Is he attempting to repeat what Souter accomplished in 1992?
He may be, but I suspect he's played this gambit one too many times at this point and his pleas for "incrementalism" are likely falling on deaf ears with Justices who recognize that every year the Roe regime persists makes it only more difficult to overturn.
I suspect Justice Thomas--who will have assigned the opinion to Justice Alito if the Chief did not vote with the majority--has prevailed over the CJ with his view that an issue of constitutional law wrongly decided in the first instance should not be preserved via stare decisis.
In the current state of America, in which liberals take to the streets in violent mobs with impunity, this leak arguably presents a clear and present danger to conservative justices. What should be done? Mike Davis has a strong argument. This is who he is:
NOW: @Article3Project * @The_IAP * @UnsilencedOrg | FORMER: Chief Counsel for Nominations, U.S. Senate Committee on the Judiciary * Law Clerk, Justice Gorsuch
1. Oral argument made obvious the Court will overturn Roe and Casey, properly returning abortion regulations to states.
2. This unprecedented leak is a stunning, shameful, and likely illegal attempt to obstruct the Court’s deliberations on a pending case.3. This leak of a pending case puts the lives of justices in danger. The Court must issue its decision immediately.
To end this unprecedented, very dangerous assault on the Court’s judicial independence and justices’ safety, the Chief Justice should issue Justice Alito’s majority opinion tomorrow.
“Any dissenting or concurring opinions will follow.”
Davis makes some additional points in separate tweets.
First, he places this event within the context of the current political state of America, which is that of unprecedented prog assaults on the constitutional order, legal order, and the safety of citizens in their First Amendment rights to Speech, Religion, and Assembly:
Next, he pithily addresses the increasingly apparent incoherence of progs which, again, has infected American public life throught he oligarchic takeover of MSM, Social Media, and Big Tech:
The legal and constitutional illiteracy of the Left—we do have, at last check, a federal system—comes into play in this tweet:
And I liked this jab—responding to the nihilism of the prog activist journalism that has transformed our public discourse. Essentially, prog journalism amounts to: Shout them down!
Finally, we turn again to Professor Jonathan Turley. Turley’s special concern is with the current political climate and the reckless attack on our constitutional framework. Note that Turley appears to finger Sotomayor for suspicion, and gets into the legal practicalities of any investigation of the leak. The fact that Sotomayor hired a clerk who had a public profile attacking a SCOTUS nominee certainly suggests a pathological readiness to inject in-your-face politics not only into her work but also into the daily life of the Court:
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...
...This is 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.
Last December, Justice Sotomayor shocked many court watchers during the oral argument in Dobbs v. Jackson Women’s Health Organization when she complained of the "stench of politics" pervading the case. The stench became overwhelming on Monday night...
...Notably, Justice Sotomayor shocked many in calling upon students to campaign against abortion laws: “I can’t change Texas’s 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 on the Court decided to find a way to an instrument of change. One thing is now certain. The Court will never be quite the same. There is a loss of innocence in all of this - a realization that the Court is no longer immune from politics.
This smells like a prepackaged rat.
When has this Court ever issued any controversial opinions in favor of conservatives or the Constitution? We know for a fact that there are only 2.25 principled jurists on the Court. Where in heck did 2.75 Justices get the courage and principle to vote to overturn Roe?
They didnt.
These 2.75 Justices got PERMISSION. They were TOLD to overturn Roe. The Oligarchy *needs* this lithion ion battery supernova fire as the mega distraction for November. This decision checks off so many boxes for the Oligarchs that it's a no brainer. This has been in the works ever since the case was accepted by the Court.
Now watch as the Uniparty works this mercilessly through November. And watch Ukraine and the death jabs and the Southern border invasion and laptop from hell and inflation all disappear from the news, including every alternative media outlet. We will all be obsessed with this case and the predictable violence and threats and grandstanding pouring out of every pundit orifice from now till November.
And again i will say, there's no way to vote our way out of this tyranny.
I say Roberts and the other craven justices who refused to intervene in the sham election of 2020 are reaping what they sowed. Unfortunately, so are we. God help us!