A list of random thoughts about the leak, the ruling, and the reaction


1) Lying to the SCOTUS Marshall is a felony. Imagine you're the leaker, say a law clerk. You'd have to think really hard about how well you've covered your tracks. If you admit to the leak you get fired, maybe disbarred, but not likely face legal charges (though there is some disagreement on this). If you don't confess and later get caught, you get all that plus a felony charge.


2) Alito goes out of his way to say this is different than Obergafell, Loving, Lawrence, etc. in a seeming effort to reassure people that this isn't the beginning of the end of key rights expansion of the Warren and Berger eras. But his justification (the human life worthy of protection) seems to rely on a logic that, if followed consistently, would lead to an outright ban on abortion rather than returning it to the states.

3) Democrats have spent more time openly fretting about all the other things that might fall rather than abortion itself. Why is this? Does it have to do with polling? Maybe concerns about more socially conservative blacks and Latinos that still vote Democratic, but aren't particularly fired up about this topic?

4) Matt Yglesias argues that, lacking any other information, you would put more odds that it was a conservative leak just because there are more conservative judges. I'm warming to the idea that this was leaked by a conservative clerk that was worried about a defection. It is notable that they leaked a 2 month old draft, not a current one. But I'm still not sure I think a conservative leak is more probable.

5) THere's a reasonable chance we'll never know who the leaker is.

I am more concerned about a theocracy than I am about a leak.
A theocracy has been in the works since the 1930s according to one book and other sources.
My late mother, brother, and sister were, "this is not a democracy, it is a republic" types.
When pressed to define 'republic" they squirmed away.
There are millions like them.

The American Theocracy

“The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” Roberts wrote.”

I find this statement disturbing.

quote:

Originally posted by Steve Miller:
“The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” Roberts wrote.”

I find this statement disturbing.

Yes, Roberts is not helping.

quote:

Originally posted by Steve Miller:
“The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” Roberts wrote.”

I find this statement disturbing.

Also, news flash to Roberts. Too late to be concerned about the role of SCOTUS in our constitutional system. You and McConnell already broke that.

quote:

Originally posted by Steve Miller:
“The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” Roberts wrote.”

I find this statement disturbing.

In context it's not bad at all. It was criticizing the mechanism in the Texas abortion bill that made it impossible to enjoin pre-enforcement. The liberal justices made the same point, that the same mechanism could be used for any constitutional right, indeed CA introduced a similar bill aimed at guns. So what he's saying is the mechanism itself runs afoul of our constitutional norms, irrespective of the right it happens to attack.

quote:

Originally posted by Nina:
Also, news flash to Roberts. Too late to be concerned about the role of SCOTUS in our constitutional system. You and McConnell already broke that.

I see your point about McConnell, but what has Roberts done?

Not that I'm a huge fan but at least he's an institutionalist and tries his best to keep the court off the front lines of the hottest political fights of the day (cf ACA, his seemingly ill-fated attempt to thread the needle with Dobbs/Roe).

quote:

Originally posted by jon-nyc:

quote:

Originally posted by Steve Miller:
“The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” Roberts wrote.”

I find this statement disturbing.

In context it's not bad at all. It was criticizing the mechanism in the Texas abortion bill that made it impossible to enjoin pre-enforcement. The liberal justices made the same point, that the same mechanism could be used for any constitutional right, indeed CA introduced a similar bill aimed at guns. So what he's saying is the mechanism itself runs afoul of our constitutional norms, irrespective of the right it happens to attack.

Interesting. I have not seen it reported that way.

Thanks.

What has Roberts done?
Garland

Steve - I just checked and the Roberts quote was the last sentence of his dissent in the case and was actually joined by Sotomayor, Kagan, and Breyer.

So if Dobbs was decided on that basis, how does it overturn Roe?

quote:

Originally posted by Steve Miller:
So if Dobbs was decided on that basis, how does it overturn Roe?

Dobbs is a Mississippi case that outlaws abortions after 15 weeks.

Texas didn’t make it illegal, it made providers subject to civil suits (which was the clever method of making it impossible to enjoin) The dissent about the Texas case was about denying cert. Under the Roe framework, the texas law would have been invalidated eventually but not until one of the providers was actually sued.