Last week appeared to be given over to discussions of the Dobbs leak, as well as discussions of Roe and Casey in general. I actually made a couple of updates to my last Quick Loop post on May 9 (Monday) to keep all of the discussion together, so if you didn’t see the link to Cathy Young’s article about the political issues on Roe repeal or Eugene Volokh’s article about possible legislation blocking proposed state bans on interstate travel, you might want to take a look. I only have one more thing to say about the leak, and then I’m moving on.
There’s a Hole in My Bucket
In Washington, D.C., leaks are an important currency, used to gain favorable treatment from the media by providing chosen reporters with a valuable scoop. In the second volume of his autobiography, The Good Years, former N.Y. Times reporter Russell Baker recounts that President Lyndon B. Johnson once called him up and offered to “leak like a sieve” to the Times if it supported his agenda; unfortunately for LBJ, Baker could hear some laughter in the background when Johnson made this offer, which meant that LBJ was making this call as a performance in front of an audience. But leaking hasn’t abated any since LBJ’s day almost 60 years ago, and technology makes leaking easier. But even in that leak-crazy city, the Dobbs leak has dominated conversation.
One consequence of the Dobbs leak has been to cast a bright light on the amount of leaking that has been taking place on the Roberts court. CNN Supreme Court reporter Joan Biskupic has been offering her opinion that this leak will be part of Chief Justice John Roberts’ legacy, and that is unquestionably correct. Biskupic also offered her opinion that none of the leftist justices were involved in this leak, saying, “from what I know of them, they would never have been party to anything like this, and I doubt that their clerks would have been.” That may also be correct — because when the leftist justices leak information from the Roberts court, it appears that they normally leak to Biskupic.
For at least a decade through 2020, Biskupic published many long analyses of Supreme Court deliberations, most notably about the Bostock ruling in 2019 that cited a large amount of information from conferences held among only the justices, making it obvious that at least one of the justices had leaked information to her. The series of leaks were largely praised by Biskupic’s fellow travelers in the media, but most Court observers had no doubt that the primary leaker was Justice Ruth Bader Ginsburg, Biskupic’s longtime friend. However, SCOTUS took no action to stop the leaks.
After Ginsburg died, Biskupic wrote about their twenty years of friendship. But one of the questions that was immediately raised was whether Biskupic’s impressive sting of leaks from the Supreme Court would end with Ginsburg’s death. [Spoiler alert: the answer so far has been “yes”.]
Somehow it seems very “meta” that the person who received and published so many leaks over the years would be leading the complaints about this latest leak.
The Washington Post also published an article about the leaks that included some newer leaks, and Josh Blackman of The Volokh Conspiracy wrote a column about what we know from these new leaks. For one thing, according to leaks from three unidentified persons with ties to the conservative Court members, it doesn’t appear that any fracturing has occurred during the revising and editing process among the five-person majority, which gives support to the theory from Blackman and SCOTUSblog’s Tom Goldstein that the draft disclosure came from someone on the left, perhaps even (as Blackman speculates) someone who is “not a clerk or Justice, but instead obtained [the first draft] through some improper means at some point in the past.”
However, the longtime history of leaking during Chief Justice Roberts’ term, and the fact that leaking is still taking place leads Blackman to question the culture of the current Court, as well as any effort to identify the leakers:
Apparently, only leaked opinions are investigated, but talking to the press is tacitly accepted. Such has been the practice for years. Roberts took no action in response to incessant leaks to CNN. [Note: this refers to the Biskupic leaks discussed above.] These leaks need to stop. But the Chief Justice, once again, has proven himself to be utterly unable to manage this situation. As Roberts purports to clamp down on leaks, his precious institution remains a sieve. These leaks undermine the seriousness of the Marshal's investigation.
As a result, Blackman believes that there is a reasonable change (about 50/50) that Chief Justice Roberts may choose to step down at the end of this term. As Blackman notes,
What better way [for Chief Justice Roberts] to virtue signal and promote bipartisanship then to vote to uphold Roe v. Wade, and let a Democratic president replace him with a 50-50 Senate.
Since Blackman offers no evidence that Roberts is actually considering this and refers to it as a “virtue signal”, it’s difficult to believe that this “prediction” is motivated by anything more than Blackman’s partisan cynicism, though.
Oh, and before moving on from the Court entirely, I want to go back to the discussion from last time about the change in Court standards for issues like standing that took place almost immediately after Roe. One of the best examples of that is provided by the complementary cases of Shapiro v. Thompson (1969) (a 6-3 plaintiff victory from the Warren Court) and Edelman v. Jordan (1974) (a 5-4 defendant victory from the Burger Court, written by future Chief Justice Rehnquist (who was appointed to SCOTUS in 1972), with Justices Douglas, Brennan, Marshall, and Blackmun dissenting), although the cases were only five years apart. The relationship between the two cases was well summarized by law professor Ben Johnson in The Volokh Conspiracy:
In Shapiro, the Court simply ignored the question of whether the Eleventh Amendment barred retroactive relief and affirmed the judgment below ordering payment. When the Court examined the question five years later in Edelman, it had to sheepishly admit that it had fouled up earlier cases because it had not been paying attention to all the questions included in those cases.
As noted before, there was an undeniable lack of judicial rigor in Supreme Court decisions made through the time of Roe.
Love the Sinner . . .
. . . Hate the Sin? The first half of that Christian saying seems to sum up the current relationship of conservative Christians to The Former Guy (“TFG”), but the second part of that saying could easily be amended to “double down on the sin.” I talked about this in relation to David and Nancy French last time, but the examples continue to spiral. For example, this article from the N.Y. Times, to which a friend alerted me, discusses an upcoming “seismic shift” among “white evangelical churches” into two clusters: one that embraces the messaging and political combativeness of TFG, despite his direct refutation of the teachings of Jesus, and one that does not. Perhaps we should end the A.D. (or C.E., in academia) era and start a new series, A.T. (or maybe A.T.F.G.?).
One of the central teachings of Jesus, from the Sermon on the Mount, was present in both the Gospels of Matthew and Luke. In Matthew, Jesus is quoted as saying, “But I tell you, do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also.” [Matthew 5:39] In Luke, Jesus is quoted as saying, “If someone strikes you on one cheek, turn to him the other also.” [Luke 6:29] This command is clear and unambiguous: Jesus tells Christians that they are not to take revenge, because God will handle it. God has the sole power to punish sinners. As Proverbs 20:22 commands, “Do not say, ‘I will pay you back for this wrong!’ Wait for the Lord, and he will avenge you.” One Christian site explains the difference in the following fashion:
We are to stand up for ourselves. We should stand up for others that are hurting. Retaliation is needed at times, but our retaliation should not take the form of revenge. Christians can question those who wrong them. We should practice self-protection without a desire for personal revenge.
And then there is The Former Guy and the churches that wallow in his wake. A sermon such as this one, described in the Times article, might still pass muster with Jesus’s commands:
“America is no longer a Christian nation,” the pastor said, setting up a message about resisting the broader culture’s pressure to change “what we say, how we raise our kids, how and when we can pray, what marriage is.” The sermon’s title was “Stand Firm.”
Yet it remains concerning that a majority of people in the church were offended by the former pastor’s sermon on the racist environment that used to be present. For example, I remember growing up in the 1960s in a major northern city where it wasn’t a “tiger” that we caught by the toe when we played “eeny-meeny-miney-moe”; it was a word that sort of rhymed with “tiger”. And school brawls were usually accompanied by a chant of “fight, fight, [tiger replacement word] and white, come on [less favored brawler], beat that white!” I couldn’t imagine believing that I was unaffected by that environment, even if critical race theory is still nonsense.
But an even scarier trend was brought to my attention by another friend, as reported by NPR:
Why had a group of conservative American Christians converted to Russian Orthodoxy? * * * *
Over a year of doing research, [post-doctoral fellow Sarah] Riccardi-Swartz learned that many of these converts had grown disillusioned with social and demographic change in the United States. In [the Russian Orthodox Church Outside of Russia (ROCOR)], they felt they had found a church that has remained the same, regardless of place, time and politics. But Riccardi-Swartz also found strong strains of nativism, white nationalism and pro-authoritarianism, evidenced by strong admiration for Russian President Vladimir Putin.
“For many of them, Putin becomes this sort of king-like figure in their narratives,” she said. “They see themselves as oppressed by democracy because democracy is really diversity. And they look to Putin because democracy isn't really, as we see right now, an option [in Russia].”
However, despite the alarmism in this piece, overall membership in the Russian Orthodox churches in the U.S., including ROCOR, covers only 0.4% of the U.S. population, and membership in ROCOR itself has declined by 14% — but the number of parishes has grown by 15%. Thus, it seems like ROCOR is appealing to small self-selected cells, not to a mass movement. Consistent with this, the NPR article later notes:
Those who have followed the influx of extremists into American Orthodoxy agree that those individuals are fringe within the church and are mostly concentrated in newly founded ROCOR parishes.
Kinda like QAnon. Or, dare I say it, the Ku Klux Klan. It definitely might explain the small outcroppings of pro-Russian sentiment in MAGA world.
Some longtime ROCOR faithful have found these views bewildering, given the church's history. Lena Zezulin, whose parents were among the founding members of a parish in Long Island, N.Y., said that the community was always inclusive of non-Christian Russian immigrants living among it and proud of its immigrant roots.
“We had Muslims in the community,” she recalled. “My summer camp had Buddhists in the community. So those people were kind of lovingly absorbed into the group because they all came over [to the U.S.] together.” * * * *
Zezulin left her longtime ROCOR community and has started attending an Orthodox Church in America parish because her priest would not condemn the [Russian invasion of Ukraine].
"You know, somebody just said we should stand and pray for both sides. Well, were the Brits supposed to pray for Hitler and Churchill at the same time?" she said.
We’ll see how long the GOP can accommodate a ROCOR-friendly MAGA wing. My money is on “not very long.”
Primary numbers
Continuing that theme: Since the inauguration of President Joe Biden, the Republican Party has been held together by a uniform distaste among both wings for Biden’s outspoken support for the far left. But the current primary season has exposed cracks in that common front. As the post-TFG single-party-majority in D.C. seems ready to fall in November, the GOP schism seems likely to swallow up the next two years, perhaps far more significantly that the anticipated backlash over Dobbs (although, as we have noted, there is disagreement on that topic, which largely relates to how long the U.S. will need to achieve a democratic equilibrium on the abortion question).
However, before I discuss the current primary battles, I want to use this opportunity to quote myself with regard to partisan primaries:
[The extremism in partisan primaries is] turning me into an advocate for “jungle primaries” (technically called nonpartisan blanket primaries), where all the candidates for an office (regardless of party affiliation) face off in the first round, which serves as the primary, and the top two candidates face off in the second round. As more and more Americans become independent of party affiliation (a process that, in my case, resulted specifically from TFG), I’m beginning to feel that such jungle primaries are the only real way to return to sanity, because increasingly polarized parties are increasingly selecting candidates who represent only their fringe of the electorate in partisan primaries.
I believe this approach is superior to the approach of “ranked-choice voting”, because ranked-choice voting still limits your choices to the potential extremists who win the party primaries and any independents who may choose to run against the major-party candidates. Thus, to get one of the general election slots in ranked-choice voting, you generally still need to win a partisan primary. In nonpartisan blanket primaries, you do not — and so someone who doesn’t necessarily appeal to a hyper-partisan sliver of the electorate still has a reasonable shot at ballot access.
This “hyper-partisan sliver” theory played itself out in the Ohio primaries last week, as TFG’s “Celebrity Apprentice: The Post-Presidency Years” candidate J.D. Vance won the Republican nomination for Senate with just 32% of the primary vote and will be an overwhelming favorite against Democratic candidate Tim Ryan in the general election in November. The victory stands as a significant accomplishment for TFG, because Vance was running a weak third in the polls when TFG endorsed him. The next big TFG endorsement battle plays out today in West Virginia and Nebraska.
The two most interesting GOP races are the Nebraska governor’s race and the West Virginia congressional race. In the three-candidate Nebraska governor’s race, the candidate endorsed by TFG, Charles Herbster, has shown his commitment to TFG’s values — because he has been accused of sexually harassing eight women, including a Republican state senator, in 2019 (the two are currently suing each other about the incident). The current (term-limited) governor said that “sexually assaulting women should be disqualifying for anyone seeking to serve as a leader”, but Herbster, who has reported spending at least $11.3 million on his campaign so far, has taken to comparing himself to TFG as the recipient of a “politically-timed smear.” In another similarity to TFG, Herbster has a record of paying his property taxes late almost 600 times. The governor endorsed one of the other two candidates, but the election seems to be going down to the wire.
Similarly, in the West Virginia congressional race, where both candidates are incumbent GOP congressmen who have to face off due to redistricting, TFG has endorsed the candidate, Alex Mooney, who did not vote to investigate the January 6, 2021 Capitol riots, even on a nonpartisan basis. To hide the fact from his base that his endorsement is based entirely upon Mooney’s personal loyalty to TFG, TFG has targeted the other candidate, David McKinley, for voting for the bipartisan infrastructure bill in the House (as did both of West Virginia’s senators, Democrat Joe Manchin and Republican Shelley Moore Capito, because the repairs needed to infrastructure in West Virginia are some of the most pressing in the country). Of course, when TFG was President, he always touted how much he wanted to spend on infrastructure, but what’s a little thing like ideological consistency to his supporters? TFG’s attack on the infrastructure bill has brought both senators into the battle on McKinley’s side, as well as the Republican governor, with Manchin even issuing a rare cross-party endorsement. But again, polling shows the race to be relatively even, so the actual vote will tell the tale.
Basically, TFG’s entire campaign pitch is that working cross-party is wrong, even for worthwhile goals, and who are you gonna believe, me or your lyin’ eyes? And yet it may work in both races, and the stupidity may persist. For example, TFG’s son Donald Jr. tweeted this just a few hours ago: “You can’t find baby formula in the United States right now but Congress is voting to send $40 billion to Ukraine. Let’s put American First for a change.” Perhaps TFG’s followers, including his son, believe that there is some negative correlation between manufacturing and distributing baby formula and support for Ukraine, but extraordinary claims (such as claims about stolen elections) generally require extraordinary proof. Can anyone even envision a remote connection between the availability of baby formula in the U.S. and aid to Ukraine?
Of course, if TFG’s son’s evil friends in the Kremlin would abandon their war of aggression and conquest against Ukraine, Congress wouldn’t need to send Ukraine $40 billion in military aid — except maybe to help repair the destruction and damage that TFG’s son’s evil friends in the Kremlin have already done to Ukraine. But no matter what you believe about sending aid to Ukraine, it bears no relationship to the availability of baby formula in the U.S. . . . except perhaps if you believe that everything bad that happens in the U.S. is the fault of Old Deluder Satan Joe Biden, and so anything he advocates must also be bad.
End bits
I used to be a member of the American Civil Liberties Union. In the 1980s, the ACLU began to abandon its commitment to free speech and become just another partisan leftist organization, and so I abandoned it. This article in The Atlantic by Lara Bazelon illustrates how far off-course it has gone since then, by noting its prominent role in the Johnny Depp-Amber Heard trial. The ACLU today is a sad relic of the ACLU in decades past.
And finally, many of us watched the Kentucky Derby on Saturday and saw one of the most stunning upsets in horse racing history, as Rich Strike, the longest shot in the race at 80-1, a horse that had been purchased for $30,000 after winning a claiming race at Churchill Downs in September 2021 (his only career victory), and a horse that just got into the race as an alternate on Friday morning (because the field is capped at 20, and Rich Strike wasn’t among them — becoming “also eligible” by ranking 21st in the final rankings), ran down the two favorites in the stretch to win — the second time in the Derby’s 149 years that the longest shot in the race had won (the first was 1913) and also the second horse to win the race from the farthest-outside starting spot (#20).
But the trainer and jockey are an even better story than the horse. The Daily Racing Form has a story from April 20 about how elated the trainer — who generally runs horses at small tracks in the Ohio Valley, and who had won exactly one graded stakes race in his entire career — was just to have a horse that qualified to go to the race as an alternate (little knowing what lay ahead). And Tim Sullivan of the Louisville Courier Journal wrote a profile on the jockey, Sonny Leon from Venezuela, who rode the same circuit, generally around Ohio (mostly at Belterra Park in Cincinnati and at Mahoning Valley Race Course in Youngstown), and had never won a graded stakes race — until Saturday, against 19 of the best riders in the business.
Enough nonsense for today. Rich Strike is a great story about the possibilities that may be in our future. Be seeing you.