Dahlia Lithwick: The Biggest Mystery of the SCOTUS Leak Isn't 'Who Did It?'

[Nevilledog]

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With a series of leaks to the press and some choice comments, the conservative justices seem to be taking a page out Tony Soprano's playbook.

slate.com
The Biggest Mystery of the SCOTUS Leak Isn’t ‘Who Did It?’
There are good reasons to think the SCOTUS leak is not a leak at all.
2:18 PM · May 21, 2022

https://slate.com/news-and-politics/2022/05/what-if-the-scotus-leak-is-not-a-leak-at-all.html?via=rss_socialflow_twitter

There are actually three mysteries surrounding the leak of a draft opinion that stands to overturn Roe v. Wade from a notoriously leak-proof Supreme Court. The first mystery, of course, is the much-discussed and debated whodunnit. The second is the related speculation around why such a galactic infraction of the courts norms around secrecy occurred. But to my mind, the biggest mystery of all is why some of the current justices—with broad latitude to mitigate the institutional rupture as a result of the leak—have opted to make it worse. The real, enduring question is why the nine people who could have calmed the situation have instead, in many cases, opted to exacerbate it.

Consider that the leak was, first and foremost, a broadside against the court’s own legitimacy; the story it whispers to schoolchildren about comity and decency and rising above the rancor. Gone. Maybe that shattering of illusions was long overdue. But nobody knows better than the members of the current court that shattered illusions hamper the court’s ability to function, both internally and as an institution.

Consider also the deep weirdness around the reporting from January that Chief Justice John Roberts had allegedly asked, “in some form,” for the justices to wear masks and that Justice Neil Gorsuch declined and Justice Sonia Sotomayor had to participate in sessions remotely. That entire drama, with its junior-high whisper campaign, ended with a bizarre joint statement from Gorsuch and Sotomayor pinkie-swearing that they were good friends, and later a more bizarre statement from the chief justice claiming that he never asked anyone to mask on the bench. Putting aside the silliness of the entire episode (and man, it was ridiculous), what was indisputable was the extent to which, as Joan Biskupic put it at the time on CNN, the long-standing norm at the high court around leaks was that “regardless of tensions among the nine, they will close ranks, particularly against the press.”

That hasn’t happened around the Dobbs leak. You might have expected the court to rally around its own institutional legitimacy, waving the flag of mutual bipartisan adulation and mutual affection and regard. The justices could have followed the lead of Roberts, who expressed horror at the leak and pledged that it would not interfere with the court’s work. Indeed, he promised us that it would change nothing: “To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed,” he said. “The work of the Court will not be affected in any way.” But the justices themselves have speedily shown that the work of the court has, in fact, already changed.

*snip*

[Wounded Bear]

1. I've always figured it was a trial balloon...

to judge public sentiment. Hopefully, it blows up in their faces to where we sweep the mid-terms.

[uponit7771]

3. +1,

[ananda]

7. Yes, I also think it might have backfired.

It came from the hard right because they wanted to
change the political discourse.

But antagonizing the vast majority of women is
more of a bete noir for them, I think.

[SCantiGOP]

14. You might be right,

but my guess is the opposite from a trial balloon. I think it came from one of the hard core staff of Alito or perhaps Thomas, maybe even with their consent, in order to “lock in” the decision.
It would be very difficult for one of the 5 usurpers to change their vote now. Had it remained private, there could have still been discussion and compromise among the two sides on the Court.

[Lonestarblue]

15. I agree that it was a trial balloon, but with a more sinister reason.

The right-wing radicals wanted to see just how much controversy a straight decision to overturn Roe would be to decide how much it might hurt the Republican Party. The Court may very well now uphold the Mississippi law, essentially saying that hey we’re not ignoring women’s rights so that Republicans do not lose votes this Fall. With Republicans possibly in charge of Congress next year, Biden can do nothing for two years and in 2024 Trump or someone worse becomes president. Then the Court has a clear path to overturning Roe, Obergefell, any remaining parts of the Voting Rights Act, and any other rights such as access to birth control that the religious right wants them to outlaw.

[cachukis]

2. It is nearly impossible to give up a perspective that has led you to power.

That sentiment defines the America of today.
We were designed to share power through elections of people who carried our sentiments to the negotiation table. Those ideas were based on the good of the society. Each point was to be discussed on its merits and comity was the expectation. Good ideas, well argued could be shared by all.
Despite all that high thinking, fallacies persisted; slavery comes to mind.
Politics is always in play. One has a responsibility to one's constituency.
The constituencies of politicians has narrowed.
Those who have accumulated much wealth let that matter rule their actions.
They can afford many mistakes and maintain their protective comfort.
They, like all of us, hang with like minded thinkers.
But those driven by their philosophy and molded by their financial success are transformed at some point to leave their old world behind. They have to assimilate into their new surroundings to continue their successful ways.
We are now defined by the perspectives of the powerful who demand that we acknowledge their wisdom and will do better by following their guidance.
The humbling factor of achievement on the shoulders of others gets lost in the megalomania of one's name on a plaque on a building.
The Supremes, many of whom really are unworthy of their position, serve at the behest of a philosophy that is riven with falsehoods. Try telling them that today.
These Supremes are in so deep, they can't see the flies in their eyes, because of the flies in their eyes.

[Picaro]

4. This should be a post on its own

Great writing.

[erronis]

12. Agree. Lots of conscise items that need thought and comments.

Please at least space them into little paragraphs. I know DU doesn't have a good embedded formatting editor.

Further discussions below on QFT (somewhat OT) are also fascinating.

I like how some DU discussions can bring out a wealth of ideas from a single topic.

[ananda]

8. QFT: "they can't see the flies in their eyes, because of the flies in their eyes. "

Excellent analogy.

[cachukis]

9. Stole it from Heller in Catch 22.

Your QFT reference is so on. The deeper I get into real absolutes the fewer I find. Physics was my penchant in early years. Can't keep up with it today, but I apply it to philosophy. Think we ignore philosophy too much.
One of my recent attempts: Everyone always does the best they can at the time they are doing it. Have yet to hear or read a rebuttal that works.

[erronis]

13. May be entangled with QD also. Vis Penrose, consciousness

[cachukis]

16. QD I suspect, Quantum Dynamics. Vis Penrose

a new perspective for young energetic minds.
Being in the flow and studying it is the coolest thing.

[ananda]

19. cool beans.. and agree

Thanks

[gibraltar72]

5. I believe it was to get people talking about

something other than all the stuff coming out about the insurrection. I believe someone thought they could get us talking about this, rather than all the evidence of conspiracy including a Supreme Court justices wife as a conspirator. Oh look it worked.

[blogslug]

6. This statement from Thomas just confirms for me that he's always resented Chief Justice Roberts

...Asked about the deep friendships and regard for one another at the court, Thomas replied, “Well, I’m just worried about keeping it at the court now.” He unfavorably compared the current court to the ”fabulous court” under Chief Justice William H. Rehnquist, naming the justices he liked in that era. “This is not the court of that era,” Justice Thomas said, adding: “We actually trusted each other. We may have been a dysfunctional family, but we were a family.”

I still say Clarence holds a grudge because he thought either he or Scalia should have been made Chief Justice instead of John Roberts. The fact that Roberts occasionally sides with the law as opposed to ideology just makes him madder. So he and Ginni plot to just burn it all down.

[cachukis]

10. I rest my case.

[Hekate]

11. Kick

[usonian]

17. So, it was intended to undermine the integrity of our operations

[NullTuples]

18. This is the same court that said a law that avoided judicial review was none of their business

Specifically, the Texas abortion law that was crafted to allow a Legislature and Executive working together to completely sidestep review by the courts. That in and of itself one would think would make it unconstitutional. Yet the Court refused to even look at it saying that because it was crafted that way it's apparently outside of the rules of being recognized as Constitutional or not.

[Hekate]

20. Great essay. Plus nicest photo of Justice Clarence I've ever seen. He looks so--avuncular. nt