Legal Docket - Supreme breach of trust

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We expect the U.S. Supreme Court to hand down opinions this morning and so we’ll have analysis as soon as possible for you.

Today, though, a decision we already have in a meaningful respect, but don’t have quite yet, in the most important respect and that’s the abortion decision known as Dobbs versus Jackson Women’s Health Organization.

Politico received a draft of the majority opinion and published it in full and later Chief Justice John Roberts confirmed the draft is authentic.

We’ll discuss not so much the content, because it isn’t final and we haven’t seen the concurring opinions and dissents, but we will talk about what it means that someone leaked the draft.

REICHARD: Right. Most media have focused on what the draft says about abortion. That’s important, but so is the leak, which is really a theft. There’s a thief at the court who has access to court documents.

I asked the public information office at the court for comment on the latest in the investigation as to who did it. I received no response, but CNN reported on Wednesday that court officials have asked all the law clerks to sign affidavits and to hand over their cell phone data.

Some of the clerks are now getting lawyers of their own.

EICHER: Not long after the leak, Justice Clarence Thomas spoke at a conference in Dallas on May 13th. He spoke of the damage to the court and to America’s institutions in general. Have a listen to what he says:

THOMAS: I think we are in danger of destroying the institutions that are required for a free society. You can’t have a civil society, a free society, without a stable legal system. You can’t have one without stability and things like property or interpretation and impartial judiciary. And I’ve been in this business long enough to know just how fragile it is.

REICHARD: I saw a piece by Professor Mark Movsesian in the journal called First Things, published by The Institute of Religion and Public Life. Movsesian is co-director of the Center for Law and Religion at St. John’s Law School in New York. He once clerked for Justice David Souter, decades ago.

The piece he wrote that caught my eye is titled Why the Dobbs Leak is Dangerous.

So I called him up for some perspective. He referenced that interview by Justice Thomas.

MOVSESIAN: I don't know if other people pick this up. But Justice Thomas, it was quite striking to me. He said, “This is not how it was when I first joined the court.” And he mentioned two or three very progressive justices, Justice Souter, Justice Ginsburg, and he said he got along fine with them. And he said, ”You know, we were a dysfunctional family, but we were a family.” And he said, “Now, I just don't know if I can trust my colleagues in the same way.” And I thought that was really quite a telling comment, and really quite a criticism of the current membership of the court, frankly.

Movsesian called this theft and release to the media particularly shocking, and put it into some historical context:

MOVSESIAN: Well, I say it's not shocking in the sense that there have been leaks before from the Supreme Court. I mean, everyone thinks the Supreme Court quote, unquote, doesn't leak. That's not quite true. There have been leaks before. There were leaks actually about the Obamacare decision a couple of years ago and Bostock and going back to the Dred Scott case in the 19th century.

Those were one category of leaks: after the fact, after the decisions were handed down. The purpose of those leaks differed from the Dobbs draft opinion leak:

MOVSESIAN: So those leaks tend to be maybe after the fact someone wants to set the record straight for history, right, to kind of let historians know what was going on. Sometimes they are, frankly, to make the leaker seem more important than he or she really was in the way the case was decided, you know, kind of saying, “I was there as the eyewitness and I had an important role.”

There's at least one leak in Supreme Court history that apparently involves someone trying to, to make money off a leak, with inside information about some business thing. But those are all very different sorts of things because none of those leaks threatened to destroy the trust that the justices have in one another in the way that this leak seems calculated to do.

Not only destroy trust, but manipulate the process of judicial review and integrity. The timing of the leak tells why. The justices would have had the initial vote on how they’d decide back in December after oral arguments. The senior justice in the majority would then decide who’d write the opinion, and we know that was Justice Samuel Alito.

MOVSESIAN: So Justice Alito then circulated his draft in February, and at that point, the other justices had the opportunity to read it and decide whether they were going to join that opinion, or whether they were going to write separately. And so for the leak to come out now suggests that someone, the leaker, understands how the vote is going, and has decided either to try to influence that process, or alternatively, or in a more sinister way, to just blow up the process. That's why this leak was so shocking.

Movsesian has his theories about whether the leaker meant to scare someone away from joining the majority or keep that someone on board with it. Or, whether it’s the more sinister motivation to incite public unrest and expose the justices to threats, destroying their trust in one another.

In that interview in Dallas, Justice Thomas pointed to a dicey future if that’s the case:

THOMAS: I just think that anyone, for example, would have an attitude to leak documents, that general attitude is your future on the bench. And you need to be concerned about that. We never had that before. We actually trusted.

I’d read some commentators saying, “What’s the big deal with the leak? The decision’s coming out soon anyway. Sunlight’s the best disinfectant.” That sort of thing. But all that reminded me of the line someone wrote that, “We don’t know what we’re doing, because we don’t know what we are undoing.”

Again, Movsesian:

MOVSESIAN: I know that people will look at this and say the important thing is abortion, why do we care that the justices are embarrassed? And I think that's because, you know, people who think that way may not appreciate just how much is being undone, when members of the court think they cannot deliberate in confidence, when members of the court think that they can't engage in a good faith discussion of the issues with their colleagues on the court, I think that really does threaten to destroy the institution in a way that will have very bad consequences for our law.

I wondered if this egregious breach of trust isn’t the natural consequence of what’s been going on for some time on campuses.

An infamous example of bad and immoral behavior happened at Middlebury College in 2017. Students shouted down Charles Murray and physically assaulted his interlocutor Professor Stanger.

Or in March this year, Yale law students harassed lawyer Kristen Waggoner and physically intimidated her, yet Yale didn’t condemn the students’ actions.

So many examples of people who will be our future judges and advocates now getting away with suppressing the speech of others and using intimidation to do it.

I asked Movsesian his thoughts about that.

MOVSESIAN: I’m not an expert in that. I'm just a law professor. But it seems to me that we have a kind of generalized sense of emergency in our culture today. I read this, there's a really nice essay about, in First Things actually, called State of Emergency in which the author says, you know, ever since 2016, we've had a sense on both the left and the right, that we are in a state of political emergency. And the normal rules no longer apply.

That applied to people who said the 2016 election was the, what, “flight 93 election,” right? People were saying. And then of course, after that, people were saying that the country was in grave danger. And then of course, there was the pandemic. And then you're, you know, you see arguments about free speech, that things are so dangerous now, we can't tolerate speech that says things that we don't approve of. We see all of this as an existential threat.

Movsesian emphasized the importance of identifying the thief in the court and punishing that person for doing it. Otherwise, this will only encourage someone else to do the same.

Institutions matter, and they matter whether a person thinks they do or they don’t. Whether progressive or conservative.

MOVSESIAN: I'd say that, yes, I do think conservatives support institutions, because conservatives are always very attuned to the idea the sort of peace and tranquility and order that we have has been very dearly won and could easily come apart. And that is why conservatives support institutions, maybe to a fault, because, you know, they don't want the bad consequences that come from disorder. But that being said, I think we shouldn't only criticize progressives for this, I think there are plenty of people who view themselves as conservatives today who also may not be attuned enough to the damage that is done to institutions.

I’ll let Justice Thomas have the last word, connecting the dots of our current culture to the leak at the Supreme Court, raising up a generation that conflates disagreement with disinformation, or even hate:

THOMAS: To me, the epicenter of free speech was when I was at the university. That’s where you learned to engage with people who disagreed with you, to deal with ideas with which you were not familiar or with which you disagreed. And it was back and forth and I just loved it. We called them rap sessions back then. And I said but now look at your university. This is the U of GA. How many of you can take a view on this campus of traditional families? And of course nobody, you’ve got a lot of people staring at the floor. How many of you can take a pro-life position on this campus. Staring at the floor.

I do think that what happened at the court is tremendously bad. I wonder how long we’re going to have these institutions at the rate we’re undermining them. And then I wonder when they’re gone or they are destabilized, what we will have as a country. And I don’t think that the prospects are good if we continue to lose them.

That’s this week’s Legal Docket.

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