One Leaker…Two Leakers…And Three Leaks…Supreme Court Abortion Draft Makes For Mystery

Thy best blog spot for Supreme Court news—even when a leaked draft to oveturn Roe v. Wade is not making national headlines–is SCOTUSblog.

The New York Times referenced The Wall Street Journal today in their court coverage, as does the post below from this blog.

Start from the premise that there were actually (at least) two leakers, and three leaks. The first leak was to the Wall Street Journal editorial board last week. In substance, it was that the court had voted to overrule Roe v. Wade, but that the precise outcome remains in doubt because Chief Justice John Roberts is trying to persuade either Justice Brett Kavanaugh or Justice Amy Coney Barrett to a more moderate position that would uphold the Mississippi abortion restriction without formally overturning Roe.

While not formally presented as relying on a leak, the editorial transparently does. The most obvious example is that it predicts that Alito is drafting a majority opinion to overrule Roe, but gives no explanation for that prediction and none is apparent. We now know that Alito did draft that opinion.

The second leak was to Politico. Likely within the past few days, a person familiar with the court’s deliberations told them that five members of the court – Alito, Kavanaugh, and Barrett, along with Justices Clarence Thomas and Neil Gorsuch – originally voted to overturn Roe and that remains the current vote. In addition, the position of the chief justice is unclear. The remaining justices are dissenting.

The third leak was also to Politico. It was presumably – but not certainly – by the same person. Someone provided them with Alito’s Feb. 10 draft opinion.

It is also important to look at the leak of the opinion through the lens of the fact that someone – almost certainly a conservative – had just before leaked the court’s tentative decision and the state of the voting to The Wall Street Journal. That leak was itself an extraordinary and unethical breach of confidences and certainly caused very deep concern inside the court.

My guess is that someone on the left felt somewhat justified in releasing the opinion in response. Through the opinion, one would see what the Journal was saying Kavanaugh and Barrett were considering. That leak was a historically unprecedented violation of the deepest and most solemn trust among the justices and the court’s staff. It wounded the institution.

For followers of the Court and politicos alike, this has been a week not short on drama. The story grows as a nation simmers, tensions rise, and our democracy shudders with concern about what will follow.

And so it goes.

Conservatives May Get Roe Reversal, But Public Is Mighty Angry At GOP

I have been closely following the huge waves resulting from the explosive news of the leaked Supreme Court draft regarding an attempt to destroy Roe v. Wade. Each day, there is a raft of truly well-thought-out articles and analyses about the story first reported in Politico. Such information about a legal matter that was settled law for 50 years regarding women being in control of their own reproductive health care had to be reported. Once the information was made known to a reporter(s) and able to be authenticated by the news operation there was a professional duty to report such a powerful development to the nation.

As I make my way through the news reports what most intrigues me is the larger questions at play. First, is the matter of additional strain on our democracy that this highly-combustible and seemingly open-ended eruption will have on a nation that is already so fraught with division and open rancor.

Second, is the way the Supreme Court, and perhaps the justice system as a whole will be viewed as a corrupt bargain struck by powerful conservative players in partisan positions.

The third reason I am pressed closely to this news is how the ramifications of undermining privacy within the framework of Roe will potentially impact the strides this nation has made with gay rights. To pretend that Justice Alito is any more sincere about not undermining my marriage than he is about the precedent with women’s health rights would be laughable if not so damn serious.

What we do know is the calculations of a political and legal strategy conservatives have schemed over and blatantly exercised has likely born fruit with the undermining of Roe. Where this mindset moves next is the issue that has generated much coverage since Monday.

Roxane Gay wrote a strongly worded Op-Ed piece in today’s New York Times.

I do not know where this retraction of civil rights will end, but I do know it will go down as a milestone in a decades-long conservative campaign to force a country of 330 million people to abide by a bigoted set of ideologies. This movement seeks to rule by hollow theocracy, despite our constitutional separation of church and state. The people behind this campaign do not represent the majority of this country, and they know it, so they consistently try to undermine the democratic process. They attack voting rights, gerrymander voting districts and shove unpopular legislation through so that they can live in a world of their choosing and hoard as much power and wealth as possible.

Conservative columnist S. E. Cupp wrote a perfectly toned article about the ramifications for the court and the nation this week.

Whatever you think of the leak, and however you come down on abortion, this news is deeply troubling and has vast implications, not just for women but all American voters. And it’s just another in a long line of chilling consequences from one election in 2016, an election that in so many unforgivable and irreparable ways, shredded the democratic institutions that hold this country up.

Make no mistake about her final paragraph in the column.

The Republican partisan strike on the Supreme Court in 2016 was nothing less than the weaponizing of the judiciary. To have ‘conservatives’ pretend they still have any true claim to that word is bizarre. When Senate Majority Leader McConnell, in the face of an open seat on the Court, stated that “people should have a voice in the selection of their next Supreme court justice” conservative principles of governing were discarded and replaced by raw power.

For those who are true conservatives, the actions of their Republican senators in 2016, must have been painful as stated principles gave way to partisan moves. To not have a hearing on a nominee named in March of 2016 and then wait for almost a year for a new justice to be seated–after an election season had passed–is just what it looks like.

A partisan power play of the most damaging kind to the nation.

During a recent 28-year period in this nation–or to put that into the lingo of politicos–seven presidential election cycles–Republican presidential candidates had won the popular vote only once. Yet those white men appointed six of the nine justices. Then the GOP senate majority cast their votes for conservative nominees against a vastly changing nation demographically, socially, and culturally.

The nation is now royally ticked off.

The folly and pure hubris of conservatives taking reckless actions with our democracy are now coming home to roost. Beware what one seeks, the old saying goes, as you may actually get it.

And so it goes.

Why Journalism And Anonymous Sources Matter, Supreme Court’s Draft On Roe V. Wade Makes Point

We are told by some partisans that news sources are to be distrusted, reporters are not integral to democracy, and that there are even ‘alternative facts’.

Late Monday evening, all those lines fell faster than Russians on the Ukraine battlefield.

It was reported by Politico the Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito.

The ramifications of this story are enormous. Not only for health care rights for women, but also for privacy being understood, for decades, as an unenumerated right. Privacy has been a foundation for several large court decisions from the right to use contraception, to engage in private consensual sexual activity, and to marry someone of the same sex.

Make no mistake about how the legal weight of this abortion ruling could move the court going forward.

While all these issues and many more will be debated at length starting with Tuesday morning coffee in homes around the nation, I wish to give credit to the journalism profession, and specifically two reporters.

Josh Gerstein and Alexander Ward.

We all should be proud of how they did their job with this story.

It needs to be noted that these journalists not only reported the story but also gave the full rounded coverage by writing that “it’s unclear if there have been subsequent changes to the draft” since February. They were not aiming for going beyond the fact the draft is a product from February.

They also fully grasped the gravity of the story surely being one of the newsroom’s biggest scoops and surely the biggest headline of their lives. They wrote that “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”

The news about the court draft was able to be reported by the reporters due to the role of an anonymous source. It is these sources who are vital to a fuller understanding of what our government does and journalists are doing their job by then reporting on the information once it is firmly understood to have validity.

I understand that most people are not sitting around their living rooms contemplating anonymous sources. I can imagine how conservative media will be apoplectic today and feverishly disdainful of this news story, and how it was obtained.

To those who do not understand the role of anonymous sources, I have one name to add to this post.

Mark Felt.

It is absolutely true to say that had Felt not been an anonymous source there very well would not have been a Watergate story as we have come to know. It was “Deep Throat’ who alerted Bob Woodward in those parking garage conversations that presidential abuse was running rampant in the Nixon White House.

The pursuit of news, facts…the truth… is what reporters do. And anonymous sources are very much a way to allow the public to know what their government is doing.

And so it goes.

Our Politics Smolder, Democracy Suffers

There is much to be alarmed about when reading the newspapers from day-to-day. Eastern Europe is ablaze, war crimes mount, and a madman is still alive in Moscow. But closer to home we have issues that tear at the fabric of our democracy, with the latest example coming from Republican Senator Lindsey Graham.

This week he stated Republicans would not have held hearings on Judge Ketanji Brown Jackson’s nomination to the Supreme Court if they held a majority in the Senate.

“If we get back the Senate, and we’re in charge of this body, and there’s judicial openings, we will talk to our colleagues on the other side,” Graham said at a Senate Judiciary Committee hearing for Jackson’s nomination. “But if we were in charge, she would not have been before this committee.”

Such is our politics in 2022. As a decades-long politico, I am embarrassed about the condition in which we now find ourselves. We can track the history of how we arrived at this place, and while there is plenty of specifics that can be placed on each party, that does not take away the fact that the above statement from Graham was reprehensible.

By the end of this week, the Senate could very well confirm the first Black woman to the Supreme Court. That is a significant stride for a nation that long had only white men holding those seats. Rather than honoring that moment or understanding a president has the right to his appointments, barring some egregious or illegal behavior on the part of the nominee, we instead are witnessing a very low moment in our politics.

(For the record, I have still not figured out what took place upon the death of Senator John McCain, a long-time friend of the South Carolina Senator, which unleashed a continual series of outrageous comments and behavior.)

I have long enjoyed the court nominees over the decades facing the Judiciary Committee and having views shared concerning how the law should be reasoned, probing into if and how the Constitution was a living document, and how precedent weighs into guiding authority for deciding subsequent cases. But the hearings for Ketanji Brown Jackson were not what the public deserved, as they were not able to learn anything of substance over the four days.

What we were presented with, all too often, was base low-ball behavior.

I get it that the minority wants to be anything other than the minority. I get it that political points need to scored at some level, but the disrespectful questions, and then in some cases, the lack of a Republican listening to Jackson’s full response showcased what is currently wrong with our politics.

Not for the first time does this blog desire our conversations with each other to be more elevated. This blog has called out Madison radio personalities for low-brow on-air behavior, a president for cursing in public, and now the display our nation witnessed in the Judiciary Committee.

What strikes me, and I suspect a wide swath of the nation when it comes to Senate votes for court nominees, is the bipartisan nature we once enjoyed when placing new people on the bench. Here’s how our politics looked with those votes for court nominees going back to Antonin Scalia’s confirmation in 1986.

TAKE NOTE: Scalia had been the most celebrated justice on the right. He got 98 votes in his 1986 confirmation. The most celebrated justice on the left, Ruth Bader Ginsburg, got 96 votes in 1993.

What Graham said about the future of our political process in Washington is truly disturbing. How many judges nominated by President Biden will then-Majority Leader McConnell allow to be confirmed in a GOP majority chamber? Well, apparently the answer is zero. And that is simply destructive to democracy.

Our Founding Fathers envisioned several examples of possible dangerous behavior to democracy and placed solutions to them within the Constitution. But they simply could not have fathomed the degree of partisanship currently running through the Republican Party. Partisanship so deep and corrosive it would harm the nation itself.

We really do need to find some more ‘John McCains’ within the Republican Party to keep the ‘Lindsey Grahams’ tethered to democracy. Our nation demands it.

And so it goes.

Ginni Thomas Proves No Limit To Absurdity

Never think things can not be worse. More absurd. More delusional.

They most certainly can be far direr than we can imagine.

Enter Ginni Thomas.

Famed journalist Bob Woodward–a reporter I have admired since my teenage years–along with powerhouse Robert Costa made for lots of late-night reading Thursday. It was after midnight when James started to read me some news coverage from The New Yorker, but I stopped him to ask if this was a parody from Andy Borowitz. He assured me it certainly was not.

Virginia Thomas, a conservative activist married to Supreme Court Justice Clarence Thomas, repeatedly pressed White House Chief of Staff Mark Meadows to pursue unrelenting efforts to overturn the 2020 presidential election in a series of urgent text exchanges in the critical weeks after the vote, according to copies of the messages obtained by The Washington Post and CBS News.

The messages — 29 in all — reveal an extraordinary pipeline between Virginia Thomas, who goes by Ginni, and President Donald Trump’s top aide during a period when Trump and his allies were vowing to go to the Supreme Court in an effort to negate the election results.

On Nov. 10, after news organizations had projected Joe Biden the winner based on state vote totals, Thomas wrote to Meadows: “Help This Great President stand firm, Mark!!!…You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”

Part of me wants to snicker at the best schooled and ‘brightest’ conservative minds in the nation wallowing in the slimy pits of voter conspiracy theories. After all, Ginni and Clarence Thomas willingly walked down a very slanted floor and surely now think it is the rest of us who are naive for not using the hose to slide the rest of the way down the drain with them.

The collision of logic and preposterousness can not be played out in more stark terms than to read the emails of Ginni Thomas. Leave aside, for the moment her lack of regard for the Constitution or laws of the nation.

Consider the fact there is no darker or more sinister aspect to this seemingly Shakespearean tragedy that is the life of Donald Trump, than the news from the past 24 hours. It is irrational to read of Thomas, a person who entered Trump’s orbit and trashed herself for someone who would spit on her should she but deviate one iota against him. Thomas is as expendable as everyone one else in Trump’s infantile world. That she was not able to discern this truth paints her as being addle-minded.

When it comes to craven ambitions and low standards of behavior Ginni Thomas has recorded a new record. Considering I truly felt we had seen and heard just about everything possible when it came to the 2020 election this news story did make me aware there is always a new basement being dug.

We just need time to learn which conservative Republican is holding the shovel.

We should be angry and demand full accountability for this dangerous and unreasonable behavior from Ginni and Clarence Thomas. In the newsrooms, one thing is not in doubt. This story was legs.

Promoting sedition and undermining a presidential election is not probably what Ginni’s parents wished for her as a legacy. But they probably did not imagine she would cozy up to a man who would be accused of a violation of the Code of Conduct while sitting on the Supreme Court, either.

And so it goes.

Ketanji Brown Jackson: America At Its Best

Between a devastating and absurd war in Eastern Europe and bouts of extreme and violent weather in the South, along with reports of an advancing variant of COVID one might think all the news is bad and unsettling. But there is one story this week that continues to be fresh and uplifting as it proves the greatest aspect of our nation.

We have every reason to be buoyed due to the intellect and character of Supreme Court nominee Ketanji Brown Jackson.

WASHINGTON, DC – MARCH 22: Judge Ketanji Brown Jackson testifies on her nomination to become an Associate Justice of the U.S. Supreme Court during the Senate Judiciary confirmation hearing (Photo by Mandel Ngan-Pool/Getty Images)

I have never sat in a law school class, but if that were to happen I would want the precise and conviction-driven analysis and presentation from the professor to be the same as the nation is now getting from Jackson. She is meeting her moment with history as the Senate Judiciary Committee rolls out days of hearings this week. I would also add, given my ‘radio ear’ for great diction and clarity of speech, she excels on that score, too.

While I very much agree the Supreme Court should look like America, and applaud President Biden for this nomination, I also appreciate the character of a nominee who we just know would also be a nice neighbor. Having quality in our highest appointees in government is essential.

But it is the importance of Jackson becoming the first African-American woman to sit on the Court that is extremely important. Life’s perspectives from a larger swath of the nation, when percolated by a court surely will have a needed impact.

Months after Marshall stepped down, Justice Sandra Day O’Con­nor, who served with the civil rights hero for 10 years, penned a gener­ous essay describ­ing “the special perspect­ive” he brought to the Court. Listen­ing to heart-pound­ing stor­ies from his days of dismant­ling Jim Crow, she recalled sitting at the justices’ confer­ence table with him, “hoping to hear, just once more, another story that would, by and by, perhaps change the way I see the world.” Marshall told his colleagues, as Justice Bryon White reflec­ted, “things that we knew but would rather forget; and he told us much that we did not know due to the limit­a­tions of our own exper­i­ence.”

It is not lost on the nation that committee Republicans are playing to the base with their inane questioning that speaks more to the culture war theatre they live in than the higher ideals of law. (Can you define “woman?) I suggest Jackson could construct the perfect definition of a jackass.

Such Republican tactics are sad, given how many Republicans talked in past nomination hearings to wishing for a higher level of conversation in such proceedings. It is even more telling the partisan road they walk given the broad array of GOP senators who supported Jackson’s confirmation to the federal court bench. Care to wager on how many of these ‘principled’ Senators will vote for Jackson later this month?

Chuck Grassley (Iowa)

Mitch McConnell (Kentucky)

Richard Shelby (Alabama)

Jim Inhofe (Oklahoma)

Susan Collins (Maine)—twice!

Mike Crapo (Idaho)

John Cornyn (Texas)

Lisa Murkowski (Alaska)—twice!

Lindsay Graham (South Carolina)—twice!

Richard Burr (North Carolina)

John Thune (South Dakota)

John Barrasso (Wyoming)

Roger Wicker (Mississippi)

Jim Risch (Idaho)

Roy Blunt (Missouri)

Jerry Moran (Kansas)

Rob Portman (Ohio)

John Boozman (Arkansas)

Pat Toomey (Pennsylvania) 

John Hoeven (North Dakota)

Marco Rubio (Florida)

Ron Johnson (Wisconsin)

Rand Paul (Kentucky)

Mike Lee (Utah)

Tim Scott (South Carolina)

Ted Cruz (Texas)

Deb Fischer (Nebraska)

History will judge this moment, and write of the hypocrisy of the minority party. But the story will also be told of how the United States once again strived and prevailed with our stated mission to live up to our ideals. We are helping bend the arc of history.

Feel good America. This is when we are at our best.

And so it goes.

Death Penalty Verdict For Dzhokhar Tsarnaev Wrong, Immoral

With so many glaring headlines multiple times a day, given the Russian war of aggression against the sovereign nation of Ukraine, a news story I wanted to weigh in on got pushed aside. But this Monday morning with a stiff cup of java before me I need to address a moral wrong.

The Supreme Court earlier this month reinstated the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev. The ruling was a 6-3 vote and in so deciding the justices agreed with the Biden administration’s arguments that a federal appeals court was wrong to throw out the sentence of death a jury had imposed on Tsarnaev. The court battles result from the bombing that killed three people near the finish line of the marathon in 2013.

Tsarnaev was 19 years old when he and his brother, Tamerlan, who was 26 at the time of the bombing. Days later Tamerlan died during an explosive firefight with police, and Dzhokhar was arrested.

It should not surprise anyone that conservative Justice Clarence Thomas wrote for the majority of like-minded members of the Court in proceeding with the death penalty. I continually find it amusing how the same justices who write decisions or dissents against abortion or related matters on the bench are the first in line to place someone on death row.

Meanwhile, one of the continuing voices in opposition to the death penalty is Justice Stephen Breyer. I have written before that “I believe Breyer will be in the same fine historical company as Congressman John Quincy Adams, who after being president, sat in Congress and continually hammered away at slavery.”

Adams has a legacy of working for the end of slavery, and Breyer will be known for his pushing to alert the nation to the dangers of the death penalty.

In the Tsarnaev ruling, Breyer asserted again his grave concerns about the death penalty. “I have written elsewhere about the problems inherent in a system that allows for the imposition of the death penalty … This case provides just one more example of some of those problems.”

In June 2021 I wrote passionately against the death penalty and specifically as it related to Dzhokhar Tsarnaev.

The fact we find some criminal acts to be so barbaric that some wish to turn to death as a way to make a statement about how society feels is a natural one. It is a base reaction. But laws are made to curtail base reactions of people. While I can understand how upset people can be over the Boston Marathon bombing, as an example, I can not understand those who wish to translate feelings of anger to an execution.

As a nation, we must not allow ourselves to be taken over by the darker forces that are a part of the human makeup. We must always strive to be better than those in society who have failed so miserably to live up to a certain code of conduct that we all know to be the best way to live.

Placing someone in prison for life is the only reasonable way to proceed for those who commit the ultimate crime in our society.  Then allow for God to be the final judge on the matter.  The government should not be in the business of taking a life.

I understand that there was a very prolonged court process years ago where a jury listened to arguments for and against sentencing Tsarnaev to death. They concluded that he should be executed. I grasp the fact emotions were high, and anguish over the bombing ran deep.

But how does the barbaric execution of Tsarnaev remedy what occurred at the marathon, or not place the government and the people that it represents, on the same level as the bomber?

It might be comforting to assume that some legal balm can be applied to the citizenry to excuse or pardon the government from killing a person through the death penalty. But there is a firm moral line that can not be crossed. Trying to hurdle over such a line with legal procedures and artful wording does not change the bottom line.

Murder is always wrong. Even when termed the death penalty.

And so it goes.

Biden’s Supreme Court Nominee Will Not Be Mired To Textualism, Will Understand Privacy

And just like that, a new page was turned in Washington. The national narrative took on a new angle.

The news this morning was surprising only that it did not wait to be released at the end of June. The end of this term of the Supreme Court.

Justice Stephen Breyer will retire and in so doing President Joe Biden will have his first opportunity to place a justice on the Court. The ideological balance will not change with this selection, but the placement of a justice who understands the foundation of how the law should be viewed in the larger context is simply vital.

It is strongly assumed that Biden will follow through on his campaign promise to place the first Black woman on the Court. That would be historic, and politically sound. But the larger victory to the nation is the fact that any nominee from the Biden White House will not be a follower of the sterile notion of ‘original intent” or its cousin in intellectual laziness ‘strict constructionist’ thinking.

When we placed a ballot in our hands in the fall of 2020 and cast a vote for president many likely did so with the character of Donald Trump top most in their thoughts. While that was clearly on my mind too, my overriding decision, however, was based on the need for solid fact-based and serious jurists for the federal courts and the Supreme Court. That consideration, along with international affairs drives my voting as it has since my first vote in 1980.

Many in the nation cringe, and correctly so when thinking about ‘original intent” or ‘strict constructionist’ thinking.  The main reason to dismiss this way to view the Constitution is that such concepts are nothing less than a slap to the Framers of that document. There is nothing to suggest they wanted to be the final arbiter on an evolving nation. The second reason to find much dismay with constructionism is the way it undermines the moral authority of the courts.

Republicans and right-wing conservatives talk often about reigning in the courts from ‘liberalism’ and in so doing think that then gives them license to enact harsh rulings about the progress of society regarding a whole raft of issues. Using ‘original intent’ as a partisan weapon places a wedge issue into the judiciary and in so doing undermines one of our republic’s major institutions.

To state, as the ‘originalists’ do, that the words of the Constitution do not evolve with time is a seriously flawed idea.  To pretend that the living America of ideas and events does not necessitate a Constitution that bends and adapts within the framework of guiding principles is one of the most bizarre and dangerous concepts that has ever been suggested.  Those who promote such ideas are the American equivalent of the Taliban, who use the Koran in highly misguided ways.  Pragmatic and logical voters understand past decisions made by the court, along with public needs, and expectations, along with the larger values that were implied in the Constitution, are needed to be used by judges when making rulings.

Trying to do a mind-meld with the Framers about software privacy or looking for guidance in their written texts about transgender rights is simply absurd.

History can be a guide as to the dangers of ‘strict constructionist’ thinking. It can also be a guide as to the wisdom of using guiding principles of the Constitution to expand rights and increase the American Dream. The horrendous Dred Scott decision can be viewed as the work of the former, but most of us better recognize the wisdom of the latter as Chief Justice Earl Warren’s tenure outlawed segregation in public schools.

That is why I firmly believe that when it comes to presidential elections we must always be aware of the need for a working modern judiciary.

One of the central issues in the nation is the right of women to have control over their bodies when it comes to abortion. One of the foundations in the 1973 landmark case Roe v. Wade, is the core constitutional principle of privacy. Conservatives rail against the idea that ‘privacy’ is even protected in the Constitution. 

Now, while it is true that the Constitution does not mention the right of privacy, over time there has been recognition that privacy is an unenumerated right.  The Griswold Case is one that every high school kid learns about; as it was the first time that the Constitution protects that vital right to privacy.  In that case, it was about the right to contraceptives.  In 1973, the issue of privacy was a central argument and focus, as it was in the famed Lawrence v. Texas, where privacy was used to strike down a law against gay sex.

The nation’s attention is now to focus on one way we judge the legacy of a president. The selection of a justice for the Court. We can be most confident that with President Biden the eventual nominee will have a firm understanding that the Constitution is a living document.

That is after all, why we vote for a Democrat to sit in the Oval Office.

And so it goes.