We've done nothing, and we're all out of options, confused pikachu face. Though, personally I think this leak probably was good as it at least got public discourse going around the subject even though the justices ultimately went against public sentiment for reasons.
I'm personally WAY more concerned about Justice Thomas and Ginny Thomas and their links to the insurrection attempt, and other undermining of democracy.
It’s the duty of the court to maintain the public’s trust in the institution: without that trust the law doesn’t matter very much. This court has not been doing that very well, as evidenced by sharp changes in the opinion polling. This leak, evidence that justices are sharing unpublished opinions with interested parties, and the current weak-tea investigation are only part of the problem. But they’re big problems.
The SCOTUS is not supposed to be swayed by public opinion. The only thing that is supposed to matter is the Constitution itself, and any amendments Congress has ratified along with case law, etc. ie. if you are upset by something SCOTUS didn't agree with you on - be mad at your Congresscritter - they are the only ones with the power to change the Constitution and law.
However, there has been a growing push among some of our population that whatever is deemed popular today should be declared constitutional. That's just not how our system works - by design and for good reason.
The founders went to great lengths to ensure a populism movement could not change our federal government on a whim.
Populism movements, often based on emotional arguments rather than reality, change too rapidly and easily to form a stable platform for a long-lived government.
The erosion of public trust in the institution that is the SCOTUS is based purely on populism movements of late. Without going into specifics - the particular issues that are said to be causing this alleged erosion of trust are simply not Constitutional issues. Yet, the people demand it be so regardless... kind of the hallmark of a modern populist movement.
> The erosion of public trust in the institution that is the SCOTUS is based purely on populism movements of late. Without going into specifics - the particular issues that are said to be causing this alleged erosion of trust are simply not Constitutional issues.
WDYM? Is the SCOTUS hearing that new york gun law case, when the gun law itself was annulled anyways so the case is basically moot, not an issue? Or SCOTUS hearing the precursor case of limiting EPA regulation before the EPA has regulated anything? Or SCOTUS's multiple really significant decisions passed through the shadow docket, aka no reasoning provided?
This doesn't seem like people being mad because populationist reasoning. It reads like people being mad because SCOTUS is acting spuriously and is deviating from established law theory but there are no ways to hold them to account for doing so.
Even if a particular law has been annulled out of fear of a SCOTUS decision - that does not mean SCOTUS should not take up the case. After all, people were harmed by the law, and the law possibly was never Constitutional in the first place.
We cannot have a system where a Federal, State or Local government passes Unconstitutional laws on purpose, oppresses a population and only repeals the law when there's a real risk of a SCOTUS decision.
States like NY and CA have a history of repealing & replacing laws (with similar but slightly different laws) just to keep SCOTUS out of things (one cannot just take a case directly to SCOTUS after all).
The EPA case was whether or not government agencies and departments have the power to make up and enforce regulations on their own. The Constitution only provides Congress with the ability to create new laws and regulations, which is why this case reached SCOTUS.
The EPA was not a target, although they were the vehicle for that case. The decision from SCOTUS provides guidance to all lower courts in the nation. The importance here, is a lower court can short-circuit a complaint based off this guidance from SCOTUS. So next time some random government agency makes up a new law and tries to enforce it - a lower court can stop it quickly instead of a case having to make its way up to SCOTUS again (because that court can reference the decision and say this is Unconstitutional - getting a case in front of SCOTUS can take years or longer).
These are exactly the types of cases SCOTUS is supposed to take, rule, and provide guidance for all of the other courts in the nation.
Populism is exactly the reason people are upset with both. "Guns are bad" and "EPA is good" are emotional, populist arguments that count on people's misunderstanding or ignorance of how government, the Constitution, law and SCOTUS are supposed to operate.
Here's the thing though, both of these cases have no reason to be brought to SCOTUS because it fails to show aggrieved party or harm done. In the NY case, the law itself was already moot, and therefore the case should've been dismissed. In the EPA case, there was could be no harm done, because no regulation had passed. By this logic I should have a legal right to sue anyone due to a potential violation of any civil liberty without first proving any actual violation whatsoever... which is clearly nonsense.
SCOTUS took up both these cases for clearly political reasons as opposed to good law.
The court's been political, has been meddled with in political ways, and has had multiple important people—including signers of the constitution—point out that if they get too wacky we can and should just ignore them, for basically the entire history of the country.
> including signers of the constitution—point out that if they get too wacky we can and should just ignore them
Completely untrue.
Not only is SCOTUS the head of one of three branches of our federal government and cannot be ignored (whatever that means) - there is an Impeachment & Removal mechanism in place for when a particular Justice does not uphold their duties.
However, not agreeing with you on some issue is certainly not a failure to uphold their duties.
Frankly, none of this matters for the purposes of our government and this conversation. Only the Constitution matters. SCOTUS literally cannot be "ignored" since they are the only body of government that decides what is or is not Constitutional.
This perspective is utterly perplexing to me. The very reasoning behind allowing something as terrifying as a supreme court to exist was that its power comes entirely from the consent of the people and the other two branches. They 100% can be ignored. The executive and legislative simply don't do what they say, and poof, they're ignored. This isn't theoretical—one of their first major decisions, Marbury v Madison, was made with the expectation that if they ruled too much the "wrong" way, Madison and Jefferson were entirely willing to simply declare their decision void and ignore it. The decision may well have come out different if not for that reality (i.e. yes, they literally—literally—can be ignored).
There's the high school civics version of the court, then there's the court as it actually functions. The former has never been a close match to reality, not even in the eyes of (some of) the founders themselves.
It seems you have a fundamental misunderstanding of how the US federal government operates.
Congress can make a new law, or ratify a Constitutional amendment. That is the only way to "ignore" a SCOTUS decision. (although that is not ignoring, that is literally how the legal process works)
The President can commit a crime and do Unconstitutional things - for which they can be removed from office (Impeachment & Removal process), and then tried for crimes.
Each of the three branches has what we call "checks & balances", ie. each branch can do something to offset the power of another branch. No branch can outright ignore another branch - they have to go through their legal processes to make changes.
What you seem to imply here is both Congress and the Executive branches should just commit more crimes because it's currently popular to do or think a certain way.
The disconnect is happening because you observe the President and Congress commit crimes regularly. The Court System does not act quickly - it can take years or decades for a case to reach SCOTUS. This is why a SCOTUS decision is so important - not only does it clarify what is or is not Constitutional/Legal, but it provides guidance for all the lower courts to provide rapid judgements. This system is slow, deliberately, to avoid rapid swings that change with political tides.
If that's a reality people want... then this country is doomed. But... in order to doom it for real, a lot of crime would need to take place at very high levels first - which would lead to a dissolution of the federal government and the United States in it's entirety.
> What you seem to imply here is both Congress and the Executive branches should just commit more crimes because it's currently popular to do or think a certain way.
I never wrote "should".
The actual in-fact reality is that the court's credibility is very important, and that, as there are both legal and illegal means for the other branches to circumvent or punish them, they've repeatedly decided differently than they probably would have without that pressure and those threats.
That's how the court works. It's effectively how it has always worked. It's not apolitical (never has been), it's not immune to public opinion (never has been) and they've always relied on consent of the other branches to enforce their decrees (that fact is the very justification for why they're allowed to be so insulated from direct public input in the first place)
[EDIT] Ah, I see where you got "should". That's a paraphrase of Jefferson and Madison's opinion (among others), not mine, so take it up with them.
> they've repeatedly decided differently than they probably would have without that pressure and those threats.
To quote the "Dude" (Big Lebowski reference) - that's like, your opinion, man.
Each of the recent high profile cases are clearly constitutional issues, despite the populist sentiment to the contrary. Further, for some of these issues, Congress has had the entire history of the country to set correctly - and has chosen not to.
You should be angry with you Congress people, not SCOTUS. SCOTUS doesn't get to make up laws... but somehow people have come to believe they should when it's "righteous" or "morally right". SCOTUS doesn't even consider those factors, they only consider the text itself. Congress is free to consider those factors, but doesn't...
Look, this is super-mainstream "how the supreme court works" stuff. You can disagree but you're wrong. There's a ton of material on this, much of it's online, and a guide to the rest can be found in most any university US government course syllabus. Federalist 78's probably a decent starting point.
You're arguing with history and reality itself, not me. I dunno what to tell you.
The Federalist papers were political opinions - not law, and certainly not the Constitution.
They provide insight to what some of the founders may have thought - but then there is reality which is what we have now.
Your entire point seems to be, some people broke the law and got away with it, therefore SCOTUS is now just a thing we sometimes pay attention to when it's convenient.
That is simply not reality. It's populist, as-of late, due to some decisions that were unpopular but Constitutional. People are largely ignorant of government and the Constitution, so it's really easy to whip people up into a frenzy over some perceived evil-doing or something.
Don't like a SCOTUS decision? Get Congress to overrule it. That's how it works - there is nothing else except crimes that sometimes go unpunished or take years to be undone.
We teach this stuff in grade school because it is, in fact, that simple.
> They provide insight to what some of the founders may have thought - but then there is reality which is what we have now.
The reality we have now is that the court has never functioned the way high school civics treatments of US government describe it. Its credibility is very important to its continued power and to our avoiding constitutional crises, which means that the popularity of its decisions and the perception that it's making fair, impartial rulings matter deeply. It is and always has been a political body, but its unique mix of weakly-accountable authoritarianism and impotence—designed that way on purpose, which is why I point you to Federalist 78 as a starting point—means it operates very differently from, expresses its political will differently than, and experiences the effects of politics differently from, the other two branches.
> That is simply not reality. It's populist, as-of late, due to some decisions that were unpopular but Constitutional.
As-of late? I've already pointed out that this has always been how it works. I'm not describing how I want it to work, I'm describing how it actually works. The court's reputation does matter. That's the only thing that keeps the other branches from ignoring it. If either party thinks they can get away with ignoring it and not lose seats, that's a terrifying place to be in as far as the health of the Republic, and that's not some idle concern. Members of government, founders, and members of the court have, variously, acknowledged this reality and acted accordingly.
> People are largely ignorant of government and the Constitution
I doubt I disagree with you about what the Constitution says on this matter, nor am I ignorant of it.
> Its credibility is very important to its continued power and to our avoiding constitutional crises
This is the point of contention. It's a modern concept, when some folks of a particular political leaning didn't get their way. Suddenly, practically overnight, SCOTUS is a politically motivated organization that must keep up with popular opinions or risk "losing power". Otherwise, they're branded as evil-doers and worse...
This is simply not how our government works (thankfully).
If it did, people would have ignored Congress and the Office of the President long ago... and we would no longer have a functioning federal government, or a country for the matter.
The idea that the Judicial Branch is beholden to popular opinion and must maintain "credibility" is something that happens to unstable governments in far away parts of the world. This is not how our system works, again... thankfully.
Just because the judicial branch moves slowly and doesn't play petty politics does not mean they are not effective. Credibility has literally nothing to do with this system - it was designed that way on purpose.
> It's a modern concept, when some folks of a particular political leaning didn't get their way.
I've repeatedly pointed out that it's not, at all. It's been a feature of our political system from the beginning. The ideal is that it's not, but that's never actually been true. It's something that's been known as a feature of this particular arrangement of government since before the Constitution itself was written—when it was still in the planning phase.
> Credibility has literally nothing to do with this system
You keep using "literally" and it keeps making your points worse because they're literally wrong, while they might have merit as an aspiration, at least.
> Just because the judicial branch moves slowly and doesn't play petty politics does not mean they are not effective.
Like... they totally do play petty politics. Again, read any history of the court, it'll be pretty clear that they always have. It'd be kinda weird if they didn't, when you think about it. It's just a bunch of people, after all, as was (again) repeatedly pointed out by various founders.
I think you need to temper your idealism with some realism. Consider, for example, that 'qualified immunity' originates as a pragmatic legal doctrine rather than in statute or executive order. It is a creation of courts, notwithstanding the resultant tension with the Constitution itself (see eg Vega v. Tekoh, the most recent case in the linked summary).
Specifically, qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.
Literally everything in this article cites the Constitutionality of every presented case that built modern Qualified Immunity. In all cases, a government official is not allowed to violate your actual rights, ie. the ones provided by the Constitution or ones codified into law by Congress.
That is how the system is supposed to work.
I don't see the point you are trying to make, however.
Go read some actual cases and see just how much behavior is excused under the rubric of QI, where a petitioner's only recourse ends up being the offending agency investigating and endorsing the actions of its own employee. I find it hard to believe that you are totally unaware of how this doctrine gets abused or the questions of scope creep, and that was just one example. IF you study law and jurisprudence, it quickly becomes obvious that it is not the process of pure disinterested rationality you seem to imagine.
This is an odd take. QI can only expand as far as the courts allow it - because you can challenge it in court (and it is challenged often).
QI allows government employees to do a lot of things - except violate your real rights (provided by the Constitution and/or laws passed by Congress).
If you do not like how QI has developed over the years - then it will require either A) Congressional Law or B) SCOTUS decision to change it.
None of this has anything to do with what this thread was about.
Just because you are unhappy with some legal tool, doesn't mean SCOTUS is derelict or something. That's just absurd... and demonstrates a lack of understanding of both our judicial and legislative systems.
America hasn't been lacking in abortion discourse in awhile. The leak potentially effected the outcome of both the decision and November's election -- more undermining of democracy.
For me, it mainly undermined my trust in the Supreme Court. I’d already lost trust in congress and the presidency. Now I have lost trust in all three branches of government. Complete corruption across the board.
Power didn't start corrupting people yesterday. That sentiment is pretty much the entire reason why the US government was designed to have three branches that checks and balance each other. You don't need to trust anyone in particular if you can trust the process.
SCOTUS is the least democratic of the three branches of government. Trust in SCOTUS hardly qualifies as trust in "democracy" at all. Unless I guess you're using "democracy" in a sense that is synonymous with all aspects of American government, which would be a mistake.
> I'm personally WAY more concerned about Justice Thomas and Ginny Thomas and their links to the insurrection attempt, and other undermining of democracy.
I'm more concerned about global warming, but you can be concerned about more than one thing.
Of course - this principle is an excellent one and applies to very many areas of government. But there are exceptions and I'd argue that many/most of the exceptions are good things.
Exceptions include:
* voting records - many/most countries use secret ballots. But we didn't always (in the US)! Before secret ballots, votes were subject to coercion and bribery.
* jury deliberations - juries deliberate in secret and then publish their verdict to the court.
* espionage - controversial to say the least, but spies can be a net benefit (or a necessity) depending on your perspective.
Based on this you could make the case that draft opinions for the court to review among the court might be similar to jury deliberations and perhaps could be considered something that should not be released (or should only be released years/decades after a ruling or after the relevant opinion authors retire). Or you could make the case that you have here that "sunlight is one of the best disenfectants" -- but in that case I would just prefer that all draft opinions become public all the time, not just controversial ones. I think we can all surmise that if that were the requirement, the Justices would find a way to discuss their opinions among the Court without requiring a published draft opinion.
My uncle Jim said on facebook that his ex wifes stepson has a friend who works at the supreme court in the parking lot who told him it was definately true.
I'm in broad agreement with you, Alito more than likely leaked it himself, which is why no leaker will be found, the justices are above scrutiny. Absent finding another person who we can prove did it, I'll hold on to that idea.
> It was to prevent Roberts or Kavanaugh from getting cold feet.
why wouldn't it embolden them to prove the leaker wrong, making the wage of their sin irrelevance? It's just not a strong case. It's as least as likely it leaked from the left to create a political firestorm. We don't know.
> The big picture: Rev. Rob Schenck, a former anti-abortion leader, previously told the New York Times that he learned of court's 2014 decision on Burwell v. Hobby Lobby weeks in advance, prompting a review from the Senate Judiciary Committee.
I think this report does suggest that one of the justices leaked it and Alito is the top candidate. Based on statements from the justices about this, I’m starting to look at Barret also but we will likely never know.
I found it interesting that a lot of the reasons the report gives for not being able to identify the leaker seems to boil down to pretty basic cyber hygiene.
"The investigators were not able to readily search and analyze all event logs because at the time the system lacked substantial logging and search functions."
"There was no evidence discovered that anyone emailed the draft opinion to anyone else, although technical limitations in the Court’s computer recordkeeping at the time made it impossible to rule out this possibility entirely."
The federal courts have very basic computer systems. When I was a clerk a decade ago in a circuit court, we didn’t even have a document management system or version control. I think there might have been a shared folder with word versions of old opinions.
At least this is an improvement from the “hacker known as 4chan” days. I’m a bit confused by this report though, did they do forensic analysis on the devices of all employees who would’ve had access or only some and rely on interviews for the rest?
I imagine if someone leaked it they probably wouldn’t immediately admit to it just when asked.
>I imagine if someone leaked it they probably wouldn’t immediately admit to it just when asked.
"At the conclusion of the initial interviews, each employee was asked to sign an affidavit, under penalty of perjury, affirming that he or she did not disclose the Dobbs draft opinion to any person not employed by the Supreme Court, did not disclose to any person not employed by the Supreme Court any information relating to the Dobbs draft opinion not made public through means authorized by the Court, and had provided all of the pertinent information known to him or her relating to the disclosure or publication of the Dobbs draft opinion. Each employee was then asked to swear to the truth of the statements in the affidavit before a Notary Public. Each of these employees signed a sworn affidavit. A few of those interviewed admitted to telling their spouses about the draft opinion or vote count, so they annotated their affidavits to that effect. If investigators later determine any personnel lied to the investigators, those personnel would be subject to prosecution for a false statement in violation of 18 USC § 1001."
One of the things that confuses me is that the Justices and the employees are categorizes as two different entities i.e. saying something akin to the people with access are 82 employees and the Justices. But then all the investigation only says the employees. Does that mean all the justices weren't given the same scrutiny?
"all employees who were requested to do so voluntarily provided call and text detail records and billing statements for their personal devices for a defined period to the best of their abilities. The investigators reviewed the call and text logs retrieved but found nothing relevant in the limited logs."
All the other references that I can find look like they are limited to the Court's IT systems. That seems like it might yield evidence that someone contacted the press (if they were careless enough to use their personal device), but little else.
I don't know the specifics of that, but I'd be extremely surprised if the reporters who worked on the story didn't have means at their disposal to protect the anonymity of the source. So there's yet another reason that call/text records would be very unlikely to yield useful evidence/leads.
>The investigators determined that in addition to the Justices, 82
employees had access to electronic or hard copies of the draft opinion.
Makes me wonder how many of these are IT employees and what type of system they have in place. Do they borrow a secure system from another agency? Or do they just pass around google docs?
When I clerked for a judge (not on the Supreme Court), she sometimes asked me to write two draft opinions -- one where one side wins -- and another where the other side wins -- and she used those materials in drafting her ultimate opinion.
There are so many different things going on in how judges write. I hope that they can get some _sense_ of security again so that they feel the freedom to be as open-minded as possible in figuring out the cases before them.
I'm picturing a political cartoon where Lady Justice is blindfolded, but she's visibly sweating and nervous as she's aware of being completely crowded by people with magnifying glasses, smartphones on camera mode, etc.
That part of their deliberations already occurred... the leak was after the majority of the justices voted to approve the draft. That's why the final opinion matched so closely to the leaked version.
We have no idea what would’ve happened in a counter-factual scenario. The draft opinion is the first time the whole court sees the reasoning on paper. Even if the narrow holding doesn’t change, the reasoning used and the sweep of the rule articulated can and does change.
And there is value in that being the first time the whole Court sees it.
Cards on the table at one definite time.
How much the author had to sweat to get there, to the extent it may matter at all, should show up in the results--a ruling written with a measured, judicial temperament.
Oh of course -- I just meant that I can envision a scenario where a judge is essentially writing out a thought-experiment as he or she is trying to figure out how to rule on a case -- and then that is leaked, etc.
Even if it's a late-stage draft that's leaked, that comes with its own host of problems.
Imagine a world where drafts are trotted out by lawyers seeking to argue their interpretation of an old opinion. "The Court originally was going to hold something like my opponent suggests, but that bit got deleted, your honor!"
That would be another level of the problem of what we might call "arguing the changelog," using pieces of floor debate transcripts in the legislative history of a statute.
Justice Scalia analogized that to "entering a crowded room at a cocktail party, and looking over the heads of the guests for your friends."
And that's a concern on top of the potential for a chilling effect on the judiciary.
>I hope that they can get some _sense_ of security again so that they feel the freedom to be as open-minded as possible in figuring out the cases before them.
This presumes that the leaker wasn't one of the Justices themselves, when it almost certainly was.
Sorry if this is a dumb question -- but what would be the motive for a sitting justice to leak a draft?
To test what celebrations or outrage would happen in the streets, maybe?
If they are that concerned with public opinion -- which they shouldn't be, but say they are -- I would think that would incentivize even stronger efforts to maintain confidentiality and discretion.
(Maybe you didn't suggest that it was intentional, but an accident. Even then I might wonder why someone would let their guard down on this case. Maybe there was so much more work done on one particular case, people get physically tired, etc.)
Judges don't want people to believe public opinion can change decisions. Leaking a draft discourages judges from changing their votes or negotiating other changes.
>The investigative team received outside assistance with a fingerprint analysis of an item relevant to the investigation. That analysis found viable fingerprints but no matches to any fingerprints of interest.
This one is fascinating. Now I'm left wondering what the "item" is, or what constitutes "fingerprints of interest".
I don't understand the point of an investigation here. It's not like there's any mechanism whatsoever to hold an unethical justice to account, and that's by design. There is literally no ethical oversight over the Supreme Court.
Nah, the leaker was most likely Alito, who is on record as having done something like this before. He did it to keep Roberts's vote secure by publicly forcing the issue so he couldn't waver. That's why this report refuses to reach any conclusions, and why after initially thundering about the leak Roberts has been veeeeeeery quiet about this investigation.
Are you sure Alito is actually on record of having done it before? I know he was accused of doing it before, but as far as I can tell he never admitted it and no official investigation found any proof he did it. Am I missing something or are you jumping to a conclusion?
This is partisan nonsense for a few reasons, but mainly because...
> He did it to keep Roberts's vote secure
He had no idea how Roberts would eventually vote. Robert's been very much a wild-card, so this would be quite the reckless gamble. Further, generally speaking, SCOTUS doesn't really have much stake in politics, so I also very much doubt it was a Justice that leaked it. The public overestimates how much Justices actually care about the issues themselves; they mostly care about their Constitutionality (and philosophical implications therein).
I do think they actually know who leaked it, but naming and shaming would just lead to a lynch mob, political theater, and further erode trust in SCOTUS.
In addition to Alito having no certainty about how Roberts would vote in the end, it turned out to be the case that Roberts didn't vote to overturn Roe at all (much like more than a few, well-informed Court observers guessed that he would). If Roberts was the "target" of the leak it was definitely a "reckless gamble."
They were unable to identify the source due to poor IT security, which resulted from the sudden massive shift to WFH. We should be concerned with how much of an issue this is across all government and business.
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[ 4.9 ms ] story [ 175 ms ] threadI'm personally WAY more concerned about Justice Thomas and Ginny Thomas and their links to the insurrection attempt, and other undermining of democracy.
However, there has been a growing push among some of our population that whatever is deemed popular today should be declared constitutional. That's just not how our system works - by design and for good reason.
The founders went to great lengths to ensure a populism movement could not change our federal government on a whim.
Populism movements, often based on emotional arguments rather than reality, change too rapidly and easily to form a stable platform for a long-lived government.
The erosion of public trust in the institution that is the SCOTUS is based purely on populism movements of late. Without going into specifics - the particular issues that are said to be causing this alleged erosion of trust are simply not Constitutional issues. Yet, the people demand it be so regardless... kind of the hallmark of a modern populist movement.
WDYM? Is the SCOTUS hearing that new york gun law case, when the gun law itself was annulled anyways so the case is basically moot, not an issue? Or SCOTUS hearing the precursor case of limiting EPA regulation before the EPA has regulated anything? Or SCOTUS's multiple really significant decisions passed through the shadow docket, aka no reasoning provided?
This doesn't seem like people being mad because populationist reasoning. It reads like people being mad because SCOTUS is acting spuriously and is deviating from established law theory but there are no ways to hold them to account for doing so.
We cannot have a system where a Federal, State or Local government passes Unconstitutional laws on purpose, oppresses a population and only repeals the law when there's a real risk of a SCOTUS decision.
States like NY and CA have a history of repealing & replacing laws (with similar but slightly different laws) just to keep SCOTUS out of things (one cannot just take a case directly to SCOTUS after all).
The EPA case was whether or not government agencies and departments have the power to make up and enforce regulations on their own. The Constitution only provides Congress with the ability to create new laws and regulations, which is why this case reached SCOTUS.
The EPA was not a target, although they were the vehicle for that case. The decision from SCOTUS provides guidance to all lower courts in the nation. The importance here, is a lower court can short-circuit a complaint based off this guidance from SCOTUS. So next time some random government agency makes up a new law and tries to enforce it - a lower court can stop it quickly instead of a case having to make its way up to SCOTUS again (because that court can reference the decision and say this is Unconstitutional - getting a case in front of SCOTUS can take years or longer).
These are exactly the types of cases SCOTUS is supposed to take, rule, and provide guidance for all of the other courts in the nation.
Populism is exactly the reason people are upset with both. "Guns are bad" and "EPA is good" are emotional, populist arguments that count on people's misunderstanding or ignorance of how government, the Constitution, law and SCOTUS are supposed to operate.
SCOTUS took up both these cases for clearly political reasons as opposed to good law.
Completely untrue.
Not only is SCOTUS the head of one of three branches of our federal government and cannot be ignored (whatever that means) - there is an Impeachment & Removal mechanism in place for when a particular Justice does not uphold their duties.
However, not agreeing with you on some issue is certainly not a failure to uphold their duties.
There's the high school civics version of the court, then there's the court as it actually functions. The former has never been a close match to reality, not even in the eyes of (some of) the founders themselves.
Congress can make a new law, or ratify a Constitutional amendment. That is the only way to "ignore" a SCOTUS decision. (although that is not ignoring, that is literally how the legal process works)
The President can commit a crime and do Unconstitutional things - for which they can be removed from office (Impeachment & Removal process), and then tried for crimes.
Each of the three branches has what we call "checks & balances", ie. each branch can do something to offset the power of another branch. No branch can outright ignore another branch - they have to go through their legal processes to make changes.
What you seem to imply here is both Congress and the Executive branches should just commit more crimes because it's currently popular to do or think a certain way.
The disconnect is happening because you observe the President and Congress commit crimes regularly. The Court System does not act quickly - it can take years or decades for a case to reach SCOTUS. This is why a SCOTUS decision is so important - not only does it clarify what is or is not Constitutional/Legal, but it provides guidance for all the lower courts to provide rapid judgements. This system is slow, deliberately, to avoid rapid swings that change with political tides.
If that's a reality people want... then this country is doomed. But... in order to doom it for real, a lot of crime would need to take place at very high levels first - which would lead to a dissolution of the federal government and the United States in it's entirety.
I never wrote "should".
The actual in-fact reality is that the court's credibility is very important, and that, as there are both legal and illegal means for the other branches to circumvent or punish them, they've repeatedly decided differently than they probably would have without that pressure and those threats.
That's how the court works. It's effectively how it has always worked. It's not apolitical (never has been), it's not immune to public opinion (never has been) and they've always relied on consent of the other branches to enforce their decrees (that fact is the very justification for why they're allowed to be so insulated from direct public input in the first place)
[EDIT] Ah, I see where you got "should". That's a paraphrase of Jefferson and Madison's opinion (among others), not mine, so take it up with them.
To quote the "Dude" (Big Lebowski reference) - that's like, your opinion, man.
Each of the recent high profile cases are clearly constitutional issues, despite the populist sentiment to the contrary. Further, for some of these issues, Congress has had the entire history of the country to set correctly - and has chosen not to.
You should be angry with you Congress people, not SCOTUS. SCOTUS doesn't get to make up laws... but somehow people have come to believe they should when it's "righteous" or "morally right". SCOTUS doesn't even consider those factors, they only consider the text itself. Congress is free to consider those factors, but doesn't...
You're arguing with history and reality itself, not me. I dunno what to tell you.
They provide insight to what some of the founders may have thought - but then there is reality which is what we have now.
Your entire point seems to be, some people broke the law and got away with it, therefore SCOTUS is now just a thing we sometimes pay attention to when it's convenient.
That is simply not reality. It's populist, as-of late, due to some decisions that were unpopular but Constitutional. People are largely ignorant of government and the Constitution, so it's really easy to whip people up into a frenzy over some perceived evil-doing or something.
Don't like a SCOTUS decision? Get Congress to overrule it. That's how it works - there is nothing else except crimes that sometimes go unpunished or take years to be undone.
We teach this stuff in grade school because it is, in fact, that simple.
The reality we have now is that the court has never functioned the way high school civics treatments of US government describe it. Its credibility is very important to its continued power and to our avoiding constitutional crises, which means that the popularity of its decisions and the perception that it's making fair, impartial rulings matter deeply. It is and always has been a political body, but its unique mix of weakly-accountable authoritarianism and impotence—designed that way on purpose, which is why I point you to Federalist 78 as a starting point—means it operates very differently from, expresses its political will differently than, and experiences the effects of politics differently from, the other two branches.
> That is simply not reality. It's populist, as-of late, due to some decisions that were unpopular but Constitutional.
As-of late? I've already pointed out that this has always been how it works. I'm not describing how I want it to work, I'm describing how it actually works. The court's reputation does matter. That's the only thing that keeps the other branches from ignoring it. If either party thinks they can get away with ignoring it and not lose seats, that's a terrifying place to be in as far as the health of the Republic, and that's not some idle concern. Members of government, founders, and members of the court have, variously, acknowledged this reality and acted accordingly.
> People are largely ignorant of government and the Constitution
I doubt I disagree with you about what the Constitution says on this matter, nor am I ignorant of it.
This is the point of contention. It's a modern concept, when some folks of a particular political leaning didn't get their way. Suddenly, practically overnight, SCOTUS is a politically motivated organization that must keep up with popular opinions or risk "losing power". Otherwise, they're branded as evil-doers and worse...
This is simply not how our government works (thankfully).
If it did, people would have ignored Congress and the Office of the President long ago... and we would no longer have a functioning federal government, or a country for the matter.
The idea that the Judicial Branch is beholden to popular opinion and must maintain "credibility" is something that happens to unstable governments in far away parts of the world. This is not how our system works, again... thankfully.
Just because the judicial branch moves slowly and doesn't play petty politics does not mean they are not effective. Credibility has literally nothing to do with this system - it was designed that way on purpose.
I've repeatedly pointed out that it's not, at all. It's been a feature of our political system from the beginning. The ideal is that it's not, but that's never actually been true. It's something that's been known as a feature of this particular arrangement of government since before the Constitution itself was written—when it was still in the planning phase.
> Credibility has literally nothing to do with this system
You keep using "literally" and it keeps making your points worse because they're literally wrong, while they might have merit as an aspiration, at least.
> Just because the judicial branch moves slowly and doesn't play petty politics does not mean they are not effective.
Like... they totally do play petty politics. Again, read any history of the court, it'll be pretty clear that they always have. It'd be kinda weird if they didn't, when you think about it. It's just a bunch of people, after all, as was (again) repeatedly pointed out by various founders.
https://www.law.cornell.edu/wex/qualified_immunity
That is how the system is supposed to work.
I don't see the point you are trying to make, however.
QI allows government employees to do a lot of things - except violate your real rights (provided by the Constitution and/or laws passed by Congress).
If you do not like how QI has developed over the years - then it will require either A) Congressional Law or B) SCOTUS decision to change it.
None of this has anything to do with what this thread was about.
Just because you are unhappy with some legal tool, doesn't mean SCOTUS is derelict or something. That's just absurd... and demonstrates a lack of understanding of both our judicial and legislative systems.
The process has design features to specifically allow it to function even when run by corrupt people. That was the entire point, since the beginning.
I'm more concerned about global warming, but you can be concerned about more than one thing.
Exceptions include:
* voting records - many/most countries use secret ballots. But we didn't always (in the US)! Before secret ballots, votes were subject to coercion and bribery.
* jury deliberations - juries deliberate in secret and then publish their verdict to the court.
* espionage - controversial to say the least, but spies can be a net benefit (or a necessity) depending on your perspective.
Based on this you could make the case that draft opinions for the court to review among the court might be similar to jury deliberations and perhaps could be considered something that should not be released (or should only be released years/decades after a ruling or after the relevant opinion authors retire). Or you could make the case that you have here that "sunlight is one of the best disenfectants" -- but in that case I would just prefer that all draft opinions become public all the time, not just controversial ones. I think we can all surmise that if that were the requirement, the Justices would find a way to discuss their opinions among the Court without requiring a published draft opinion.
https://www.axios.com/2022/11/29/supreme-court-alito-ethics-...
why wouldn't it embolden them to prove the leaker wrong, making the wage of their sin irrelevance? It's just not a strong case. It's as least as likely it leaked from the left to create a political firestorm. We don't know.
That's evidence. Testimony is evidence.
The guy who claimed it is a known liar.
https://www.theepochtimes.com/reverend-who-accused-supreme-c...
https://en.wikipedia.org/wiki/The_Epoch_Times
https://www.theepochtimes.com/reverend-who-accused-supreme-c...
"The investigators were not able to readily search and analyze all event logs because at the time the system lacked substantial logging and search functions."
I'd buy either explanation.
I imagine if someone leaked it they probably wouldn’t immediately admit to it just when asked.
"At the conclusion of the initial interviews, each employee was asked to sign an affidavit, under penalty of perjury, affirming that he or she did not disclose the Dobbs draft opinion to any person not employed by the Supreme Court, did not disclose to any person not employed by the Supreme Court any information relating to the Dobbs draft opinion not made public through means authorized by the Court, and had provided all of the pertinent information known to him or her relating to the disclosure or publication of the Dobbs draft opinion. Each employee was then asked to swear to the truth of the statements in the affidavit before a Notary Public. Each of these employees signed a sworn affidavit. A few of those interviewed admitted to telling their spouses about the draft opinion or vote count, so they annotated their affidavits to that effect. If investigators later determine any personnel lied to the investigators, those personnel would be subject to prosecution for a false statement in violation of 18 USC § 1001."
All the other references that I can find look like they are limited to the Court's IT systems. That seems like it might yield evidence that someone contacted the press (if they were careless enough to use their personal device), but little else.
Makes me wonder how many of these are IT employees and what type of system they have in place. Do they borrow a secure system from another agency? Or do they just pass around google docs?
There are so many different things going on in how judges write. I hope that they can get some _sense_ of security again so that they feel the freedom to be as open-minded as possible in figuring out the cases before them.
Cards on the table at one definite time.
How much the author had to sweat to get there, to the extent it may matter at all, should show up in the results--a ruling written with a measured, judicial temperament.
Even if it's a late-stage draft that's leaked, that comes with its own host of problems.
Imagine a world where drafts are trotted out by lawyers seeking to argue their interpretation of an old opinion. "The Court originally was going to hold something like my opponent suggests, but that bit got deleted, your honor!"
That would be another level of the problem of what we might call "arguing the changelog," using pieces of floor debate transcripts in the legislative history of a statute.
Justice Scalia analogized that to "entering a crowded room at a cocktail party, and looking over the heads of the guests for your friends."
And that's a concern on top of the potential for a chilling effect on the judiciary.
This presumes that the leaker wasn't one of the Justices themselves, when it almost certainly was.
To test what celebrations or outrage would happen in the streets, maybe?
If they are that concerned with public opinion -- which they shouldn't be, but say they are -- I would think that would incentivize even stronger efforts to maintain confidentiality and discretion.
(Maybe you didn't suggest that it was intentional, but an accident. Even then I might wonder why someone would let their guard down on this case. Maybe there was so much more work done on one particular case, people get physically tired, etc.)
This one is fascinating. Now I'm left wondering what the "item" is, or what constitutes "fingerprints of interest".
Sadly, I think you are missing Alito's political slant. That aspect typically makes him a super villain and, of course, guilty of all accusations.
Accusations seem to carry far too much weight in modern times...
> He did it to keep Roberts's vote secure
He had no idea how Roberts would eventually vote. Robert's been very much a wild-card, so this would be quite the reckless gamble. Further, generally speaking, SCOTUS doesn't really have much stake in politics, so I also very much doubt it was a Justice that leaked it. The public overestimates how much Justices actually care about the issues themselves; they mostly care about their Constitutionality (and philosophical implications therein).
I do think they actually know who leaked it, but naming and shaming would just lead to a lynch mob, political theater, and further erode trust in SCOTUS.