Quick Loop #7

The Ministry of Truth meets the Dobbs leak

World War II poster by Seymour R. Goff

So I did change the name of the aggregation-of-links post from “Daily Aggregation” to “Quick Loop”, as in taking a quick loop around the Internet. But I don’t want to waste too much time, because I have to start with the hot news of the day.

Loose lips sink ships?

In the long history of the Supreme Court, the outcome of decisions is never released or even hinted about before the decision is released. But occasionally there is a leak. In 1857, there was a scandal when incoming President James Buchanan hinted about the outcome of the pending Dred Scott decision during his inaugural address. The decision came out two days later, and it turned out that either two or three of the justices had told Buchanan the outcome before his speech. But such leaks have been exceedingly rare in the last 50 years. Most famously, just a few hours before the announcement of the decision in Roe v. Wade was published in January 1973, a full description of the ruling was leaked to a reporter from Time. That “tradition”continued yesterday, when what is unquestionably the first draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization, overturning Roe, was published by Politico, along with a discussion about the current voting alignment in the case. [NOTE: After I wrote this, Chief Justice John Roberts has confirmed that this is indeed the accurate first draft.]

At this point, I don’t want to discuss the draft opinion in depth, but a few quick comments are in order. First, the discussion about voting alignment is almost certainly correct, because the senior justice in the majority assigns the opinion to one of the members of the majority. Had Chief Justice Roberts been a member of the majority, he would have been the most senior justice due to his position, and it’s difficult to believe that he would have assigned the opinion to Justice Alito, who has long contended that Roe v. Wade was decided incorrectly by a court that paid scant attention (if any) to the legal precedents. As this draft opinion notes, the plurality opinion in Casey v. Planned Parenthood of Pennsylvania disregarded the actual Roe opinion and instead grounded its arguments in favor of upholding the precedent in the Due Process Clause of the 14th Amendment (which is the root of the term “substantive due process”).

To me, it seems almost certain that an opinion by Justices Gorsuch, Kavanaugh, or Barrett would have spent less time eviscerating Roe and more time on Casey, which is the actual controlling law (although most people still seems to cite to Roe) and everyone on the court would be aware of that. But Justice Thomas, who reputedly was the senior member of the majority and is the only justice on the bench who was also on it at the time of Casey (from which he dissented), likely would prefer doing both and so most likely would have assigned the opinion to Justice Alito.

Second, although everybody has theories as to which individual with access to the draft would have disrespected the Court sufficiently to pull off this leak, it’s worth noting that, when Justice Thomas’ nomination was being debated by the U.S. Senate, a copy of a draft majority opinion written by him (during his term on the D.C. Circuit Court of Appeals) in a case called Lamprecht v. Federal Communications Commission, which struck down an FCC ruling that granted a female applicant extra credit for being a woman on equal protection grounds, was leaked to a legal publication, which published excerpts from it. The article cited the “lagging liberal effort to stop Thomas' confirmation”, which left little doubt as to the political slant of the leaker, and it apparently served to revive that “lagging” effort. Senator Ted Kennedy cited Thomas’s position as revealed by that leak (see pages 25604-05) in announcing his opposition to Judge Thomas’s Supreme Court nomination and urging his fellow senators to also oppose him, although the focus of the opposition to Thomas soon turned to yet another leak, this time from a Senate Judiciary Committee report: the Anita Hill allegations.

It’s widely known that Chief Justice Roberts initially supported overturning Obamacare before changing his vote in May 2012, possibly because of his worries about public opinion, and writing a new opinion that became the majority opinion on the issues where Roberts could draw a majority, and it’s now May 2022. Although it is certainly possible that a conservative was worried about another possible defection and leaked this first draft or even that an apolitical person leaked this first draft, the previous leak history of Lamprecht points at a leaker from the left, perhaps someone involved in the current “lagging effort” to stop the Dobbs opinion from being released as a majority opinion. Since this draft is dated February 10, we may speculate the leaker was hoping for a similar shift in the present case and leaked the draft when it failed to materialize, as part of a last-ditch effort to produce one.

And it’s worth noting that the leaker of the Lamprecht opinion was never caught, despite the outrage resulting from the leak, which might be what this leaker is also hoping for. However, Lamprecht did not have the profile of Roe, and the destruction of trust among the justices and their clerks (especially between the leftist bloc and the conservative bloc) as a result of this leak will be impossible to remediate unless the leaker is identified, as SCOTUS leakers consistently have been during the post-WWII era.

Third, if the leaker is caught and is a lawyer, either a justice or a clerk, disbarment probably lies in his or her future; a non-lawyer would simply be terminated. In either case, prosecution is likely. [I should note that the SCOTUS law clerk who leaked the original Roe decision was not even terminated from the chambers in which he worked — but this case, where the leak became public weeks before the expected release of the ruling, not hours before, is much worse.] One would suspect that the leaker would already have taken that likely harm into account, weighed it against the likelihood of the Democrats’ ability to pack the court in response to the end of Roe terminating at the end of the year (with Republicans seemingly poised to gain control of both houses of Congress at the start of 2023), and concluded that the potential loss of career (or even freedom) was worth the trade-off. If the leaker is identified, he or she will become a recognized star on the left. But such stardom is short-lived, because the outrage machine on both sides of the political divide always needs fresh outrages to feed on; ask Cindy Sheehan how quickly the moment can pass.

Finally, because this is a draft opinion, it is likely to have changed significantly (although probably not substantially) since its circulation on February 10, 2022. As a result, I don’t intend to do a detailed analysis of it at this time. For those people interested in a quick summary of the draft, which will differ from the final opinion, the former DOJ Office of Legal Counsel head (and former law clerk to Justice Scalia) Ed Whelan, who is now a commentator for National Review, provides one here. Whelan also has an opinion as to how the court should proceed, which is basically to issue the opinion as quickly as possible. I had also wanted to include a link to an analysis of the opinion by someone on the left who supports Roe, unlike Whelan, but so far I have been unable to find an article that focuses on the legal issues instead of the political. And once again, the Supreme Court is supposed to make decisions based solely on the law; the Constitution leaves it up to the legislative branch and the executive branch to make decisions based on political issues.

As far as the impact of this opinion, if it is actually released in a form similar to the one leaked, I’ve had a difficult time finding authoritative sources that discuss it. Most sources resemble this map in Vox, which, for example, lists North Dakota and Mississippi as having “near-total bans” on abortion, despite that fact that North Dakota law legalizes abortion up to 20 weeks and Mississippi, the state actually at issue in Dobbs, legalizes it up to 15 weeks. I admit that I personally expect that most states will end up with legalized abortion up to approximately this time limit, with a few states opting for significantly shorter limits and a few others opting for significantly longer limits — but after Dobbs, that will become an issue for state lawmakers, not federal ones.

And one person who is definitely saddened by that development is President Biden. He released a statement today on the draft that is notable for two things: 1) the lack of any comments on the betrayal of the Supreme Court’s rules (and its collegial trust) illustrated by the leak, reinforcing the idea that the leaker was someone from the left; and 2) his statement defending Roe for the reason that “Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.” It would be interesting to hear President Biden apply the same logic to Plessy v. Ferguson, which was the law of the land for 58 years before being overturned in 1954, Korematsu v. United States, which was the law of the land for 74 years before being repudiated in 2018, or the Insular Cases, which are still the law of the land for over 100 years since the most recent? Why should Roe not be another case that was decided based on the partisan political prejudices of the time it was originally argued — but that is later overruled?

Unfortunately, one potential impact of the leak is that partisans will be more willing to break the taboos that preserved confidentiality (and, therefore, collegiality) among the justices and clerks at the Supreme Court. After all, what use are those old taboos in the quest to drink liberal tears or drink conservative tears? If that is the case, the leaker will deserve a milestone marker in the partisan race to the bottom.

Vladimir the Conqueror

The conqueror is always peace-loving (as Napoleon always maintained); he would prefer to enter our capital unopposed. But so that he cannot do this, we must accept war and therefore also prepare for it.

— Carl von Clausewitz, On War.

Russia is coming up on its national holiday of May 9, which celebrates its victory in the Great Patriotic War (known as WWII outside of Russia). In an article for CNN, two reporters analyze what Vladimir Putin may do to sell the Russo-Ukrainian War while celebrating that holiday for his domestic audience. Theories range from a formal declaration of war to annexing Ukrainian territory to Russia to enacting a mandatory military draft, with many other alternatives on the fringes.

It’s worth noticing that, according to an estimate reported in The Guardian, Russian attacks are currently producing $4.5 billion in infrastructure damage in Ukraine WEEKLY. The total amount of damage so far is $92 billion. And Ukraine was already one of the two poorest countries in Europe!

Presuming that Vladimir the Conqueror is ultimately defeated in his nefarious pursuits, the question of how Ukraine will be rebuilt remains an open one. Yesterday U.K. prime minister Boris Johnson suggested that Ukraine would need a new Marshall Plan, but there are always questions as to how much non-Russian countries would be willing to contribute once the threat of Russian aggression has subsided. For his part, Ukrainian president Volodymyr Zelenskyy wants Russia to be forced to pay reparations for the infrastructure damages caused by its aggression. From a fairness standpoint, Zelenskyy’s preference makes sense — but it’s hard to forget how poorly a similar plan worked after WWI.

Minister of Truth confirms: there is no Ministry of Truth

Here’s the article in Politico, but the headline above probably says it all. The idea that the head of the disastrously-named “Disinformation Governance Board” would be a person who was quoted by the Associated Press as saying that the Hunter Biden laptop laptop should be viewed “as a Trump campaign product” certainly seems more consistent with the head of the Ministry of Truth than an expert on disinformation.

We have always been at war with Eastasia.

In the interest of fairness (which I succumb to occasionally), libertarian/conservative columnist Jim Geraghty posted reasons in National Review why such a board could actually play a positive role in U.S. policy, although he also expressed skepticism that, in execution, it would be much different from Barack Obama’s “Attack Watch”, which operated solely to benefit Obama’s supporters.

Will the first primaries of 2022 help The Former Guy?

That’s tomorrow’s topic, once we know the outcomes tonight. Of course, that also depends on me not being too depressed after seeing the results. And maybe I’ll even discuss some of the feedback from the CRT article.

Be seeing you.