> I believe it’s much more likely that the leaker is someone who supports the opinion rather than an opponent
> If [the majority bloc in favor of the opinion has held together], there’s no reason for a supporter or an opponent to leak an old draft now.
I don't find the reasoning behind this convincing at all. It would make for a good plot twist in a book, but in my opinion the leaker was most likely an opponent wanting to spark national outrage ahead of the final ruling, in an effort to either pressure judges if the outcome can still be changed, or as an act of vengeance against the court in retaliation for a ruling they feel extremely strongly about.
The issue is that the decision was not final; Chief Justice Roberts was still trying to persuade other justices to adopt a split-the-difference decision (uphold the 15-week law but don't kill Roe v Wade). Justices have switched sides before. Leaking it could kill any quiet negotiations. There was a second leak after the first one about this (about Roberts' position).
So someone on the hard-line anti-abortion side had a motivation to do the leak.
There's an excellent podcast (What Roman Mars Can Learn About Con[stitutional] Law) with Roman Mars (of 99% Invisible) and Elizabeth Joh (of UC Davis) that discussed many aspects of this leak and potential ruling here.[0]
They discussed the potential value in an anti-Roe-side leak. It may hold justices to an early decision. I'll let Ms Joh make the case better than I could.
The domain name "jewishrallyforabortionjustice.org" was registered two weeks before the leak and points at a page protesting the ruling. The leak was coordinated and intentional by an anti-states-rights group.
States rights, that old chestnut we only ever hear about when someone wants to maintain control of other peoples bodies (slavery and abortion, included).
Also, why are you mentioning “ jewishrallyforabortionjustice” completely unprompted?
It's the only protest I know of that seems to have been planned two weeks before the leak was public, which strongly indicates these people are involved. That they're jewish is incidental and they seem to be inclusive.
And no, states rights isn't about giving people control over other's bodies: it's about maintaining consensus and self determination. Last year people were talking about states rights to prevent from being forced to take a medical treatment they didn't want.
> It's the only protest I know of that seems to have been planned two weeks before
Who are you trying to convince with this weak argument? Is the fact that it was anticipated in advance somehow invalidating? Nothing you assert follows from what you’ve proffered (separate from the fact that what you assert is wrong).
> Last year people were talking about state's rights to prevent from being forced to take a medical treatment they didn't want.
Oh, so you mean another thing that most people agree with (compulsory vaccination to participate in society) being made into an issue so an rejectionist core can throw a tantrum and get lots of people killed along the way?
That's extremely far from agreed upon, but if you want to take people's medical choices away as a condition for participating in society I don't see how you can even make an argument for abortion.
> Is the fact that it was anticipated in advance somehow invalidating
It didn't occur to me that they might register the domain in advance of the ruling just in case. That seems a little strange but I've never planned (or even attended) a political protest so I guess I wouldn't know.
The opinion piece from about a week ago in the Wall Street Journal reporting this wavering on the margins of the conservative bloc points to a more normal, less unprecedented type of leak.
So then, one view is that the leak of the draft is just a continuation of that effort to hold the line on the full overturning, and that view seems pretty sensible. On the other hand, what to make of the fact that the leak goes to Politico and not somewhere like the Journal? Do you instead see it as a disgruntled partisan opponent trying to counter the likely leaks that led to the WSJ piece? Or simply a minor smokescreen?
I don't think there's any reasonable basis to be particularly sure either way. My gut leans toward the leak having come from the "overturn Roe" camp, but I think most peoples' "gut" on this is pretty highly correlated with their personal views on the topic.
The court's top priority, shared by everyone there, is to remain credible. I entertain the possibility that it was leaked to test the public response. So they could make a decision that would be popular (bolster their credibility and appear authoritative).
My opinion is that this issue is too contentious and should have been ignored by the court and the entire problem deferred to Congress...but then that expels the court's credibility capital. They can't resist the occasion for authority and pomp.
My biased opinion out of the way, I think a growing population of the body politic feels the Supreme Court takes on too much (way out of its lane), and Congress likes to be able to dodge contencious issues (happy to have the court insulate them) and then soapbox after the fact.
Waffling on long standing pivotal precident after 50 years smacks of a brewing revolution--in any society.
In the words of my sweet little apolitical wife (and mother) after expressing surprise at seeing her participate in discussions about this on facebook: "They are fucking with the wrong people."
Well one main issue for the court is that, having weighed in with Roe and its successors, they can't help being still involved one way or the other now.
More broadly, the ongoing total dysfunction of Congress (and/or the entire political system) has meant both parties have increasingly turned to the relatively-functional court to get their wins. The fact, at least historically, that Supreme Court precedents are seen as quite durable is another factor weighing in favor of the court's involvement. The insulating effect on the politicians is a good point, too.
There's also I think the factor that both parties have found it convenient for the Supreme Court to be very powerful and involved in lots of issues just as a motivational factor for their bases: the dialogue around presidential and senatorial races now routinely revolve around Supreme Court appointments as maybe the only important issue.
From the descriptions I've seen of the process, the decision draft starts circulating once the decision has been taken. The language can be softened or hardened, but from what I understand here Roe would be dead regardless.
I'd think the possible changes would have been with respect to the "blast radius" aka the references to (and explicit targeting of) Obergefell, Lawrence, Eisenstadt.
As far as I know the decision isn't necessarily final after the initial vote following arguments. A prominent example of this is National Federation of Independent Business v. Sebelius, where Chief Justice Roberts was reported to have initially voted to strike down individual mandate of the Affordable Care Act (a.k.a. Obamacare), but later changed his mind.
Yes, this is exactly what I meant when I said that justices have switched sides before. I understand that there was a draft opinion overturning the ACA when Roberts switched sides, though I'm not certain how complete it was.
The leak itself is enough to shape legal precedent, it's made clear that the majority of the court believes that "Roe was deeply flawed". The only way for this to change would be for the court to explicitly rebuke the arguments in the leaked draft in the new majority opinion.
I don't think "precedent" works the way for first sentence seems to think it does. The final decision will be precedent; drafts are not.
And, "the majority believes that Roe is flawed" is interesting information, but it also is not any kind of precedent. Decisions are going to depend on the details of the case before the court.
Precedent occurs when a decision is challenged and upheld. If Roe is struck down, that will not be precedent, but overturning precedent, since Row was challenged and upheld in Casey. For a decision overturning Roe to become precedent, it would need to survive at least one future challenge.
In fact, knowing how and why these opinions change during this phase could be quite illustrative and interesting.
Would also be interesting to see if Roberts received a windfall during his deliberations. Insurance companies surely appreciate the individual mandates … it’s the closest thing to printing money they could achieve.
Earlier today I heard someone state that historically the Supreme Court rules in favor of the large corporate interests. My thought at the time was it did not make sense, since technically supreme court justices are beholden to Noone. What explains this bias on the part of the Supreme Court, if it truly exist?
supreme court justices are beholden to Noone. What explains this bias on the part of the Supreme Court, if it truly exist?
The people who nominate and confirm them may very well be beholden to any number of interests. Lower federal judges are also appointed for life. It would be logical that those who nominate and confirm would select judges with a record that aligns with whatever issues they (and the ones they are beholden to) find important.
Which is an inherent part of the process of nominating anyone to any position.
Selection is an inherently political process. The goal is to eliminate post selection influences.
They are beholden to no one AFTER they are appointed. They are only appointed, however, if their views match the people who are doing the appointing, who are beholden to many.
Yet there are numerous examples of justices not rendering opinions meeting their appointee’s expectations. Many of these justices serve for decades which is plenty of time for any human to change their viewpoints.
> They are beholden to no one AFTER they are appointed.
Article V of the US constitution makes them ultimately beholden to the states. It describes how the constitution can be amended. Such an amendment can possibly threaten the supreme court. Seems very unlikely to happen, though.
They are beholden to the people and the people's perception of their credibility. At any time we can dispel that court--or just stop taking it seriously. They are terrified of being waved off. Imagine all the politicians that would jump on board if they saw a large enough groundswell (energized voting bloc) calling for the "non-constitutional illegitimate third branch" to be disbanded in favor of state courts.
We are witnessing the same with the "election fraud" Trump populist fervor right now.
100% I think this is blind wishful thinking. Roe was dead the second Republicans got their justices.
How could one know about the history and beliefs of these justices, hear their questioning, see who has pushed them onto the bench, read their speeches, hell seen that their significant other believes in q crazy, and yet somehow think they'll change their mind or find some reasonable compromise.
You are correct in the danger of this blast radius.
This is TERRIFYING to me.
I'm skeptical here that this leak any differences though in that:
How can they make this ruling otherwise?
What changes could they make that don't set a scary and dangerous precedent?
without just flat out telling their truth that this is a religious decision and giving fetus' rights greater than actual living humans.
Their argument rests on their narrow view of "deeply rooted in the Nation’s history and traditions."
If that is the logic, as you say, what is left to protect states from outlawing gay marriage, contraception, anal sex, and SOOOO much more.
What moderation could be added to this draft on this fundamental issue?
It's disgusting to me that they argue they are making some ethical stand to overturn 'egregious' decision equating this to Plessy, using this historical traditions argument.
We all know what the constitution actually did say and even worse the practices of the time.
What does history and traditions even mean too. It's obvious to me and not even slightly veiled. Hint it probably doesn't include indigenous history or the history of any non-white, wealthy, christian males in power, nor any traditions created or changed within the last 50 years.
Because if the standard is the status quo of 200 years ago, they will either let a few extreme states say no to basically every right we have lived for the last 100+ years OR they will just be hypocritically veiling their true reasoning.
It doesn't really have to do with a law (which is a large part of the issue, the dysfunction of congress forces these controversies).
It's about unenumerated rights and interpretation of liberty under the 14th Amendment.
> nor shall any State deprive any person of life, liberty, or property, without due process of law
So in the past the court said liberty includes a right to privacy, which also includes things like having a right to buy and use contraceptives (Griswold v. Connecticut).
This was extended to include women having a right to an abortion, with some qualifiers (the right was not unlimited, it said states did have some interest in protecting both the mother's health and fetus health).
The current court decision says that, while those other unenumerated rights have been found, they're different because they don't involve an "unborn human being".[1]
Thus they imply that a few cells (under some state laws this would be from the moment of fertilization) have rights that supersede (or at least conflict) with an actual person's right to have their liberty protected from the State.
The Louisiana state legislature has a bill introduced right now that seems to make abortion homicide, both for the mother who receives the abortion and anyone who administers it. [2][3]
> Thus they imply that a few cells (under some state laws this would be from the moment of fertilization) have rights that supersede (or at least conflict) with an actual person's right to have their liberty protected from the State.
This is a bizarre misreading. It doesn't say that. It says that the Constitution does not grant them the power to invalidate a state law against abortion, because Roe erred in determining that the 14th Amendment right to privacy entailed a right to abort a pregnancy.
(I'm not against abortion, for the record, but I'm increasingly disappointed with the facile arguments I hear about it. Of course this Supreme Court decision is not a 'religious decision that the fetus is a human being', my God.)
That loses the context of what I wrote. I'm trying to say that basically one of these two things are true.
if this ruling's argument is: ( unenumerated && !fit with history/traditions 200 years ago ) == states can ban
then every other 'right' we have like gay marriage, contraception, porn, anal sex, basically anything not written in the constitution that a bunch of white people 200 years ago didn't do regularly, could be made illegal state by state.
OR
This is a sham justification to further their religious beliefs and the ruling should simply write that a fetus has some type of special rights that supersede.
At least that ruling would be honest about their obvious bias and plain intent.
> What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.”
How is that not saying that because abortion specifically involves a few cells then the right to an abortion is not the same as other privacy rights?
Yes, elsewhere they make other arguments about tradition with regards to abortion not being a privacy right. They don't use a singular argument.
This may give the fetus the right to kill its host (an actual person) since a state may not allow any exceptions for abortion, including the health of the mother.
Texas passed a law denying abortions in the case of rape or incest, but I guess the notion of having a right to forced inception is hard for something that doesn't exist beforehand.
I don't think ending of these life of mother exceptions in certain states is that far fetched.
It's half way there in some states through vague language, using legal system to intimidate, ban by bureaucracy, and religious hospitals who won't even abort when there is an ectopic pregnancy.
This source is an opinion piece, but worth reading imho. The author includes state's legal language on when life of mother exception can be used.
A lot of them are vague or require an immediate emergency. Though to be fair some she includes aren't super persuasive to her argument imho.
When you empower every nut job in the state to sue it intimidates MDs to not use that very judgement.
Medicine isn't black and white and even if it was the government or citizens empowered by the govt should not get to arbitrate in the middle. Every miscarriage becomes suspect. Was her life really in danger? Etc
Basically, I'm no longer shocked at the kind of stuff that is now being said out loud or publicly fought for.
From healthcare, attacking elections, attacks on queer people etc.
I think we will increasingly see a group of states continue this trajectory and push this country to the brink. And the Supreme Court continue to enable all of this dangerous behavior.
Overruling a case isn’t an all-or-nothing thing. Upholding Mississippi’s 15-week ban would simply require the Court to acknowledge that Roe’s protection of elective second trimester abortions turned out to be an error that continues to defy international norms and attract public opposition.
Overruling that part of Roe doesn’t require a meandering rant about abortion rights writ large.
Conservatives would assert that the Constitution says what it says and means what it was intended to mean, and that what the EU does,[1] or what the polls say,[2] don't matter.
But given that nobody seriously argues that Roe has a foundation in the text or original intent of the Constitution, it's certainly fair for them to point out that Roe can't be defended by saying, as liberals usually do, that we have a "Living Constitution" that incorporates "evolving social norms." Because what the EU does and what the polls say are certainly evidence of what those "evolving social norms are."
Roe raises the question of "where exactly do those 'evolving social norms' come from anyway?" And I suspect the honest answer is "the opinions of highly educated lawyers."
According to [1], in 1973, Roe v. Wade said abortion is legal US-wide at 27/28 weeks and earlier, then in 1992, Planned Parenthood v. Casey said abortion is legal US-wide at 22/23/24 weeks and earlier. I'm not exactly sure whether the ages are inclusive or exclusive or how rounding/truncating works with the ages, which is why I made them fuzzy with the slashes.
According to [2], there are 203 countries listed. I'll look at "on request" abortions.
* North Korea is marked "unclear".
* 6 allow abortion at 23 weeks (24 weeks is also an identical list): China, Colombia, Netherlands, Singapore, South Korea, South Ossetia
* 2 additional allow abortion at 22 weeks: Iceland, Vietnam
* 191 ban abortion at 22 weeks.
* Australia ranges from completely prohibited to no limit, depending on region.
* Canada ranges from 12 weeks and 6 days to 24 weeks and 6 days depending on region.
* United states ranges from (ignoring the recent laws that prompted the ongoing cases) 20 weeks to no limit depending on region.
I feel like nobody brings up other countries when it comes to abortion, but the context seems pretty helpful (as it is for most issues, I suppose). Esp since, looking at Australia and Canada, people get on and tolerate internal divergences, and maybe we should too. I suppose is it's because they accept that their federalism is much less centralized than ours.
Men arguing over women's wombs. Love it. So this doesn't paint a complete picture. It turns out that 93% of abortions in the U.S. happen at <= 13 weeks gestation:
Among the 43 areas that reported gestational age at the time of abortion for 2019, 79.3% of abortions were performed at ≤9 weeks’ gestation, and nearly all (92.7%) were performed at ≤13 weeks’ gestation (Table 10).
So it's not like we're a country of monsters despite what's technically allowed by Roe. Now I want you to imagine for a moment what's happening in the life of a woman who chooses to have an abortion well into her pregnancy, likely after quickening when she can feel movement. Well it turns out you can't, because every case will be different. And I don't trust the state to insert itself into that decision. But I'll bet every one of these women has a story to tell and that it's heartbreaking, and that we don't make those women's lives better by forcing them to carry to term.
Data from the Turnaway Study has resulted in the publication of more than 50 peer-reviewed studies, and the answer to nearly all the questions asked, said Foster, is that the women who got abortions fared better in respect to economics and health, including their mental health, compared with those who did not have abortions.
So that's my first point, but I acknowledged some will disagree.
Now, Mississippi's law is to limit abortions to 15 weeks, so you may think it's a reasonable compromise. But with Roe overturned, it will not stop there. It's only a matter of time till some states ban abortion entirely. Some already have:
Anti-choicers will push for restrictions at the Federal level. They'll try to ban pharmaceutical abortion pills through the mail. They'll try to prevent women from traveling out of state.
Finally, outlawing abortions won't stop abortions. Never has and never will. What it will do is to punish poor women who don't have the means to travel to where abortion is legal. This is already the case under Roe, and w/o Roe it will be worse.
So sure, Roe may have been poorly reasoned. Perhaps a decision based on equal protection instead of privacy would have been better. But it's what we have, and given the virtual impossibility of amending the constitution, it's the only way we can have a Federal standard.
And no, I don't think handing it over to the states is workable, any more than it was workable to allow the states to decide segregation, voting rights, contraception, or interracial and gay marriage.
Women are entitled to equal protection under the law, and that includes deciding whether to carry a baby to term.
Men and women have similar views on abortion: https://www.vox.com/2019/5/20/18629644/abortion-gender-gap-p.... Indeed, abortion is one of the political issues with the smallest gender gap in views. Women diverge from men much more on questions like the size of the social safety net. In Mississippi, the State whose law this Supreme Court case is about, the majority of women, and people of all races, oppose abortion.
Abortion advocates are no different than any other kind of progressive advocate--they claim the mantle of an entire group to champion extreme positions that most members of the group don't support, while seeking to suppress the voices of other members of the group. In reality, all the people I know who oppose abortion are women. They're moms, typically religious, and are rarely represented in discussions among educated elites like on HN. (I myself, like most educated elites, support some level of abortion rights, though I find myself favor limiting it to the first trimester, like most Americans.)
The backbone of the pro-life movement is conservative women, just like the backbone of the pro-choice movement is liberal women. Many conservative women--and slightly more women identify as conservative than liberal--deeply care about abortion. Many prioritize abortion more highly than libertarian economics, which is why the impetus for the GOP to take action on abortion has grown as women gain more power in the party. Conservative women almost uniformly love Justice Barrett. Many Republican men, by contrast, (the Justice Roberts type, or the four Republican men who voted to uphold Roe in Casey) would love to drop or at least moderate on abortion to capture more votes in affluent suburbs.
> So this doesn't paint a complete picture. It turns out that 93% of abortions in the U.S. happen at <= 13 weeks gestation. So it's not like we're a country of monsters despite what's technically allowed by Roe.
What the laws "technically allow" are an expression of society's values and sense of morality. Laws create not only legal effects, but social norms. In many cases, the social norms are more important than the legal effect. If we made stealing legal, most people, in the short term, wouldn't steal, because of the strong social norm against it. But over time and generations, we would have normalized stealing.
And even before that, we will have legalized conduct that is immoral and wrong, even if it's rare. by your numbers, you're talking about over 40,000 second trimester abortions a year. Some of which I'm sure would be justified regardless due to fetal deformity or health risks, but you could still be talking about thousands of monstrous acts a year where neither of those factors is implicated.
> And no, I don't think handing it over to the states is workable, any more than it was workable to allow the states to decide segregation, voting rights, contraception, or interracial and gay marriage.
Leaving abortion to legislatures has worked just fine in the rest of the world. Roe was heard within a few years of similar cases in Austria, France, Italy, and Germany, except Germany which found legalized abortion to violate the Basic Law. All of those Courts determined to leave abortion to the legislature. The courts in the EU left same-sex marriage to legislatures as well: https://eclj.org/marriage/the-echr-unanimously-confirms-the-...
It's fundamentally mistaken to view every social issue through the lens of segregation of Black people. Black people were a minority, brought to the U.S. in slavery, and after they were freed, they were excluded from white society. The white majority had no common bond with the Black minority, and no material interest in their welfare. Segregation laws did not affect, directly or indirectly, the white people who voted for them. Democracy could not operate in this situation.
Contraception, same-sex marriage, and abortion are completely different, because they effect everyone. Women and gay people are uniformly distributed throughout the population. The women who support restrictions on abortion are supporting restrictions on themselves. And the men who support such restrictions will be directly affected if they have to raise an unplanned child. Because the population as a whole has an interest in the outcome, democracy can operate to find a socially acceptable resolution of a contentious issue.
Liberals have used this mistaken analogy to segregation to champion a view of the Supreme Court that wrests control of society's moral and cultural development away from the public and entrusts it to highly educated elites. Abortion is legal to 24 weeks not because the public wants it, but because a bunch of libertarian-leaning Republican judges in the 1970s and 1980s did. Had Roe gone the other way, I strongly suspect we would have reached an equilibrium today that reflects public opinion of supporting elective abortion in the first trimester, but only in exceptional cases after that.
I never made any claim about support for abortion rights of men vs women. My point is only that men should be especially circumspect about restricting what a woman can do with her body.
> Abortion advocates
First of all, I'm not an abortion advocate. I'm an abortion-rights advocate. Let me lay out my position so that it is clear:
The way to reduce abortions is to reduce unintentional pregnancies and to better support women and mothers.
To wit, I want free and universal contraception and sex education. I want better birth control options for men (and I put my money where my mouth is by having a vasectomy after my wife and I had two children). I support a stronger social safety net than America provides.
I believe we can reduce second and third term abortions by making first term abortions easier. But should a woman, for whatever reason, need an abortion after the first term, that should be between her and her medical provider. I don't think any woman wants to have an abortion, especially one after the first trimester, and so I trust women to make that decision for themselves.
> are no different than any other kind of progressive advocate--they claim the mantle of an entire group to champion extreme positions that most members of the group don't support, while seeking to suppress the voices of other members of the group.
Supporting abortion rights is not an extreme position among men or women. A majority of Americans, men and women, support Roe and think abortion should be legal in "most or all cases":
I am not trying to suppress anyone's voice. I am arguing against those who aim to restrict what I believe is fundamentally a woman's right.
> In reality, all the people I know who oppose abortion are women.
This is neither here nor there, but I happen to think that women who "oppose abortion in most or all cases" have fortunately never had to face a decision like this:
> And even before that, we will have legalized conduct that is immoral and wrong, even if it's rare. by your numbers, you're talking about over 40,000 second trimester abortions a year. Some of which I'm sure would be justified regardless due to fetal deformity or health risks, but you could still be talking about thousands of
monstrous acts a year where neither of those factors is implicated.
In Germany in 2020 there were 2,226 abortions in weeks 12 to 21. There were 648 at 22 and more weeks:
Which of those were immoral and wrong? Which were monstrous acts? Who decides?
The vast majority of women who have abortions after the first trimester don't realize they are pregnant, don't have resources to get an abortion sooner, or there is a fetal deformity.
What's immoral and wrong is to decline them the right to decide for themselves.
> Leaving abortion to legislatures has worked just fine in the rest of the world.
The U.S is not the rest of the world. We either let state legislatures decide or leave it to Congress. It is immoral to leave it to the states because it will disproportionally harm women who do not have the means to travel or who wish or need to obtain an abortion confidentially. It will increase abortions after the first trimester.
Leaving it to Congress is anti-democratic due to the Senate. But say we do leave it to Congress, which presumably has the authority to grant or restrict abortion access under the Commerce Clause. Then we're right back to the Supreme Court to rule on that authority.
> It's fundamentally mistaken to view every social issue through the lens of segregation of Black people. [...] Contraception, same-sex marriage, and abortion are completely different. [...] Liberals have used this mistaken analogy to segregation.
The analogy to segregation is because its supporters defended it as as states rights issue, just like supporters of restricting abortion access. Similarly for the other issues. These are all issues that should not be left to the states.
> Champion a view of the Supreme Court that wrests control of society's moral and cultural development away from the public and entrusts it to highly educated elites.
Do you think that Griswold, Loving, and Obergefell are also issues that should have (should still be?) left to the states?
Here's what I think: Only 6% of the country could vote when the country was founded. Since that time, we've been on a path to greater democracy. But the country still retains anti-democratic institutions, and they are currently held by conservatives and allow a minority viewpoint to restrict the rights of others. At the same time, I think the constitution and representative democracy are what protects us from mob rule.
If resting control away from the states by finding implied rights in the constitution in order to allow interracial marriage, gay marriage and so forth is what is required due to the particulars of America's government, so be it.
> Abortion is legal to 24 weeks not because the public wants it, but because a
bunch of libertarian-leaning Republican judges in the 1970s and 1980s did. Had Roe gone the other way, I strongly suspect we would have reached an equilibrium today.
If Roe had gone the other way, I expect we'd be exactly where we're about to end up with restrictions varying by state, and with constant arguments over it in Congress.
> that reflects public opinion of supporting elective abortion in the first trimester, but only in exceptional cases after that.
Which is where we are as a practical matter in any case.
They would have to be very convinced that someone was going to flip. And even then there's a good chance that the wavering Justice would see this as a ploy the same as you do, and take offense.
There is a similar concept used in commerce, where a product or service is "artificially" overpriced and then discounted to make it seem like the buyer is getting a good deal.
In the same way, it makes sense to leak an "extreme" draft and then modify it after the fires have burned a bit, because you still get the benefit of passing unpopular legislation while seeming like you compromised on the details (when perhaps the final outcome is the one you wished for all along).
On the other hand, it makes some sense to me in some cynical ways for the opposition to leak this. We've already seen e-mail blasts going out asking for fundraising in the wake of this event, which certainly will solicit funds for numerous PACs and midterm war chests. Still, though, it's not like public opinion often ways heavily on the minds of the court -- they are not elected, after all, and do not face the perils of the election cycle very much. In fact, this puts much, much more pressure on the opposition's comrades in the presidential and congressional seats to come together and act. Pressure which may not be welcome ahead of said midterms...
If the leaker is someone who is outraged by the decision, why didn't they leak it in February when it was first circulated? Why wait until now?
Also, keep in mind that the final decision was going to be made public in June, several months before the midterm elections. That's next month -- the outrage was going to happen soon enough. Why jump the gun at such a late date, so close to when the decision was going to be public anyway?
Another line of reasoning in this vein is that one group of politicians is eager to find and prosecute the leaker, the other is not. If they thought it was someone from the other side, they'd probably want a scalp.
Also, the conclusion of the article is that there's basically no metadata in this PDF. This article doesn't mention that it was created something like 7 minutes before the Politico story ran. It's going to be pretty hard to work that fact into any scenario where Politico didn't scan a paper document themselves or have someone assist them in doing so as I don't think they wrote the article in 7 minutes.
Most computers are set up to use NTP automatically and it'd take a heck of a coincidence to get the time 7 minutes before the article was published. If they wanted to fake the time they'd pick something like midnight Jan 1 that gives no info.
More likely is that they were waiting for someone to help them scrub the info from it and they hit the publish button on an already prepared article right after they got the file.
This models the leaker as unsophisticated/naive. It’s not clear to me that’s warranted given they were likely part of the Supreme Court staff. The actual effect of leaking this as opposed to waiting for it to be announced seems beneficial for supporters of the decision not detractors.
> This models the leaker as unsophisticated/naive. It’s not clear to me that’s warranted given they were likely part of the Supreme Court staff.
One thing I’ve learned the past few years is that we’ve all greatly overestimated the people in governments. I’m not sure if it’s because of movies or what that influenced that. The reality is that people are, for the most part, as dumb as anyone else. It’s just that the people are generally more private (often because it’s legally compelled) so we don’t see all the mistakes as obviously as we do in other fields.
America is also going through a wave of activism on all fronts, so being naive or unsophisticated isn’t really relevant to that.
It seems highly unlikely anyone who leaked this was part of the core of the institution of the Supreme Court. Selection bias kind of leads to an assumption that those who work for the court support the neutrality and processes of the court, and have much to lose from this action vs possibly marginal potential upside. Much more likely is this was either a low level or external actor imo.
>Selection bias kind of leads to an assumption that those who work for the court support the neutrality and processes of the court
That may be true, but a key issue with this reasoning is that there has been an increasing opinion that the move to overturn Roe v Wade is an explicitly partisan affair precipitated by bad-faith manipulations of recent SC appointments from the conservative side.
Clerks work at the Supreme Court for short periods of time, and most of these clerks are brilliant people that would succeed in almost any job. If a clerk felt strongly enough about a polarizing, complex issue such as abortion and also knew they would be considered heroes by others of similar beliefs, taking an action such as this is not only implausible but could quite possibly vault the leaker into legendary status.
Institutions with any sort of money prestige power to hand out only value loyalty and societies destroy defectors because they ultimately don't now and have never valued ethics decency or morality. We only like rebellion when its a prepackages story about someone whose values and loyalty are aligned with the present winners about their rebellion against now disgraced and powerless losers. We aren't good people we just play them on TV.
They would be more likely to get a legendary amount of shares on facebook while their actual life crashed even if folks didn't find a way to put them in jail based on a usefully broad interpretation of the CFAA for example.
One could imagine that they face merely professional ruin NOW but face actual legal action only years hence when the administration changed for example. It would an extremely dubious position to be in.
Roe v Wade is already a result of the politicization of the US Supreme Court, which is used an an upper-upper-house to pass legislation for which there is no consensus, by both parties. This has resulted in a continued erosion of institutions.
>...and have much to lose from this action vs possibly marginal potential upside
That would be my assumption as well. Clerking at the Supreme Court seems like one of the top appointments one could possibly achieve. Requiring top tier academics and some number of personal connections to secure the position. This stunt would destroy all of their future prospects.
> Certainly hasn't been true for those who make up the court. It's one of the least legitimate legal courts in the land.
It certainly seems comprised of partisan hacks these days. I see no other way to describe the recent appointments prior to this year. They certainly weren't endorsed by the American Bar Association.
They ABA doesn’t “endorse” any appointees. They rate them, and Kavanaugh, Gorsuch, and Barrett all received ratings of “well qualified” which is the ABA’s highest rating.
These three were completely obvious Republican picks a decade ago when I was in law school. Gorsuch and Kavanaugh were so-called “feeder” judges on the courts of appeals, meaning they were well regarded and sent many of their clerks to clerk on the Supreme Court. (Just like RBG and Breyer and Garland). And Barrett was a star law professor.
I mean the implication here doesn't seem all that subtle.
I think he's kind of pointing in the direction of Clarence Thomas's wife, who is a batshit crazy right wing activist that was involved in the events of January 6th.
No idea if he's right but it's well within the range of plausibility.
Yup. The closer to the election this is announced the more impact it will have. We will surely get another wave but outrage goes away quick with short attention spans.
What if this leak did not come from within? What about the possibility of a certain country with a history of hacking institutions and using that information to create division at key moments? Seems like an obvious play. I have no evidence of this and the simple answer is more likely. Was my initial thought though;
Because working in politics myself, this doesn't seem optimal for either side imho.
The actions after the leak, like the barricades going up I think was more telling. The intelligence was good enough to prompt a knee jerk reaction to protect the building, yet the intelligence is not good enough to find the leaker. Something doesnt add up!
Like your timeline. Please at-least get that right before you go spreading lies. The barricades got setup before this leak in response to the guy lighting himself on fire.
The argument I heard elsewhere is that the draft was circulated a few months ago and therefore if they were against the decision, they likely would have leaked it then. However, that argument collapses when you consider that it circulated in ~Feb but doesn't mean the leaker had it then.
Maybe, but that would be stupid and ineffective. It would be more likely to make them feel like they could not change it.
However, I submit that a supporter of the ruling actually has a smart reason to release it early, namely that it's better for them to let any possible backlash calm down before the midterm elections.
Sarah Isgur and David French of The Dispatch ran through basically all of the possibilities and basically came to the conclusion it could be anyone but most likely it was just a stupid young clerk that never had a real job (University to Law School to probably at least two clerkships before a SCOTUS clerkship) trying to play politics and not having a strategy, or at least a good strategy for what they might accomplish here. Theoretically this benefits Republicans, conservatives and the religious right more by dropping this bomb early, but that’s just speculation about future possibilities and we’re talking about judicial clerks, not political operatives. Given that applies to mostly if not all of the clerks under any of the Justices, all you’re really doing is reading soggy tea leaves.
Sarah also pointed out that the Chief Justice has, technically, firing power over all of the clerks under any of the Justices, and there’s maybe a case to be made for him exercising that power here to fire all of them if they cannot definitively prove who it was after investigation in order to defend the integrity of the Court’s deliberation process. If they can at least narrow down that it was in fact a clerk and not some other staffer and definitely not a Justice (probably wasn’t, but still better to go through the investigation), then I can’t say I would disagree with that outcome.
"and there’s maybe a case to be made for him exercising that power here to fire all of them if they cannot definitively prove who it was after investigation in order to defend the integrity of the Court’s deliberation process. If they can at least narrow down that it was in fact a clerk and not some other staffer and definitely not a Justice (probably wasn’t, but still better to go through the investigation), then I can’t say I would disagree with that outcome."
Maybe, but while the intention wouldn't be to punish these people, the outcome would amount to collective punishment. Collective punishment is bad, like so bad it is a war crime, if done during a war.
It’s the loss of a job with the nearly guaranteed promise of a new one. The hiring bonus for a former SCOTUS clerk presently going into a private firm is >$400K. It would be a terrible outcome to be sure, but we are a long ways away from what you can even think to call a war crime and the integrity of the Court is vastly more important to me than the integrity of the jobs of its staff.
By the way, the June-July recess is about when clerkships turnover and they choose to stay on for another term (at the Justice’s discretion) or move on in their careers. Clerkships aren’t forever.
And such a clerk could be particularly welcomed by an ideologically aligned firm, but less so if they have been disbarred as a result, which seems to be a real possibility. It could be a great boost to a media or political career, but not so much for a legal career.
If it’s a mass firing, do you think disbarring would be likely for any or all of them?
I think it’s incredibly likely if they determine exactly who it is and that person would deserve to see their career ended and at that point you would just fire that one clerk; but I don’t think it is likely at all if they were fired en masse because the Court couldn’t determine the exact culprit. It’s not great, but we’re still talking about a group of people who know how the Court operates because they worked there recently, and I think it would be difficult to make a case for disbarment for the whole lot if the Chief Justice actually did exercise this option.
Roberts should simply have the FBI ask each clerk if they leaked the document.
If the clerk says yes, fire them.
If the clerk says no, they are either telling the truth or committing a felony. Would the real leaker risk catching a felony charge if they don't know whether the FBI actually knows the identity of the leaker?
If the clerk refuses to answer, apply "adverse inference" and fire them, because they are either the leaker or are hindering an investigation.
Maybe I haven’t made it clear from this comment chain, but I view Sarah’s proposal as a last resort if investigatory measures fail, as I think Sarah did too when she presented it. Right now the Court is conducting its own investigation and while Roberts could bring the FBI in, he can’t control how they conduct an investigation and it would present its own dangers to the Court itself.
Let’s just grant the point for the purposes of this conversation (which is not to say I agree, this has not ever actually happened before but could be considered theft of government property, but just for this conversation we’ll set that aside): would you want to keep someone on staff that violates your trust for politically motivated reasons?
It’s not just the current Justices and staff that want to know either. There has never been a before-the-fact wholesale leak of a draft opinion, but there have been months after-the-fact leaks that saw the leaker completely shunned by the community around SCOTUS independent of political affiliation or judicial philosophy from former and current clerks to the Justices themselves. They keep it tight, and clerkships, SCOTUS or otherwise, are usually the ultimate networking opportunity. Simply put, it was unprofessional and everyone involved has an interest in determining who it was no matter what the political motivations were or the hoped for outcome.
Not recently: https://businesslawtoday.org/2020/10/anti-racist-speech-acti.... In particular the ABA recently adopted a vague and sweeping model rule of ethnics that could be construed to, for example, prevent Muslim lawyers from advocating against policies on same sex marriage inconsistent with their religion.
It is an extreme departure for a profession that historically prides itself on protecting the political process over making substantive judgments—a profession where the representation of nazis and murderers and terrorists in the name of access to the legal system for all is exalted.
In the end only Vermont’s bar, adopted the rule (even Illinois rejected it: https://www.2civility.org/isba-assembly-opposes-adoption-8-4...). But that just seems to me to be a minor bump in the road before the current crop of graduates from elite schools start replacing the folks in those bars as well.
My opinion is that if you have some papers that would hurt your integrity to come out, then their release is never the problem, it is the papers in the first place.
There has never been a leak like this in the court’s history; and the way the court works is that an opinion is not an opinion of the court until the moment it is handed down. This is a first draft from February while the court is still in its deliberative process and it has the potential to undermine the trust between Justices and between Justices and their staff not because of the contents of the draft—each and every Justice already had access to it—but because a leak happened at all and it was a politically motivated leak.
So yeah, this matters, and so does the state of the court’s integrity not because of what the general public thinks, but because if the court is to function at all, the court itself needs to believe in its own integrity.
Being a warcrime isn't about the level of badness, just the level of inconvenience to the warring nations and actual utility of the outlawed practice. Chemical weapons were outlawed only after they proved utterly impractical, for example.
I lean to this - It was leaked by an opponent, but the timing was in consultation with a political strategist as to timing. Primaries are starting up, and that's why it's now and not earlier or later. This is the perfect time to fire up the base and get them watching primaries and contributing dollars. The leaker may have had idealistic reasons, but the timing feels like it's much more cynical.
> > there’s no reason for a supporter or an opponent to leak an old draft now.
It's a big assumption that it's an old draft. It could also be the last draft circulated, and that everything since has been on concurrences or minority opinions.
Someone really doesn't like that US for once stand united (in support for Ukraine).
That someone pulled some strings to leak (or "leak", has it been confirmed yet?) this document.
I.O.W. a sign that Gerasimov and his ideas aren't completely dead, yet.
(I'm no specialist, this just struck me today as I realized none of the Americans I follow at Twitter care about the ongoing genocide in Europe anymore.)
The leak presents one side of the argument. It doesn’t make sense for a dissenting Justice to leak the majority opinion and not be able to present their alternative view.
> If [the majority bloc in favor of the opinion has held together], there’s no reason for a supporter or an opponent to leak an old draft now.
I don't find the reasoning behind this convincing at all. It would make for a good plot twist in a book, but in my opinion the leaker was most likely an opponent wanting to spark national outrage ahead of the final ruling, in an effort to either pressure judges if the outcome can still be changed, or as an act of vengeance against the court in retaliation for a ruling they feel extremely strongly about.