The Volokh Conspiracy

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The Final Epicycle of Roe v. Wade

This ultimate breach in Court confidentiality provides yet one more reason why the Supreme Court must exit the arena of abortion.

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On November 2, 2021--the day after S.B. 8 oral arguments--I wrote a post titled "End the Epicycles of Roe." I highlighted the many ways in which Roe has distorted other areas of law, including stare decisis, freedom of speech, facial challenges, tiers of scrutiny, and third-party standing. Justice Alito made many of these same points in Part III.D of his draft majority opinion:

Members of this Court have repeatedly lamented that "no legal rule or doctrine is safe from ad hoc nullification by the Court when an occasion for its application arises in a case involving state regulation of abortion." Thornburgh (O'Connor, J., dissenting); see Madsen v. Women's Health Center, Inc. (1994) (Scalia, J., concurring in the judgment in part and dissenting in part); Whole Woman's Health (THOMAS, J., dissenting); id. (ALITO, J., dissenting); June Medical (GORSUCH, J., dissenting). The Court's abortion cases have diluted the strict standard for facial constitutional challenges. They have ignored the Court's third-party standing doctrine. They have disregarded standard res judicata principles. They have flouted the ordinary rules on the severability of unconstitutional provisions, as well as the rule that statutes should be read where possible to avoid unconstitutionality. And they have distorted First Amendment doctrines.

The leak is a manifestation of yet another abortion-based epicycle: the breach of Courtroom confidentiality. Someone (we do not know who) thought the issue of abortion was significant enough to justify leaking a draft majority opinion to the press. I had long presumed such a leak would have been unthinkable, but abortion drives people to such extremes. This ultimate breach in Court confidentiality provides yet one more reason why the Supreme Court must exit the arena of abortion. Hopefully, this leak will be Roe's final epicycle.

NEXT: Ex Parte Quirin: A Precedent When The Outcome Of a SCOTUS Case Is Already Known

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  1. Roberts asked the Marshal with no investigative powers to conduct the investigation.

    Robert’s must be pretty stupid.

    1. The Supreme Court should stop judicial review. It is illegal according to Article I Section 1 giving all legislative powers to the Congress.

      1. The Thorazine Thor strikes again!

    2. The Marshal overseas the Supreme Court Police. 28 U.S.C. § 672. The supreme court police have the ability to police the Supreme Court building, grounds, and adjacent streets. 40 U.S. Code § 6121 (a) (1). Investigating a data leak sounds like policing to me. If you feel the supreme court has read the Supreme Court Police's power ( as opposed to Police Power) too broadly feel free to write your congressperson and have them narrow the Supreme Court Police's power.

  2. Talk about obsessive. The man needs a valium.

    1. Donnie, Boy, you need to stop your stale personal insults copied from the KGB Handbook.

      1. Davie,
        You don't know me well enough to call me Boy.
        Try to be respectful for a change

        1. Donnie. Try an argument of fact, of logic, or of law. I will gladly reciprocate. I will even respect your disagreement.

          1. It is easy, indeed prudent, to ignore the rantings of an individual (I'm not a biologist so I can't determine man or woman) incapable of spelling their own name correctly.

    2. And yet....you continue to respond....

      1. Arm. Aren't you a lawyer? You need to STFU. You are a cult criminal.

  3. This is a very silly claim. What if we get a leaked opinion about gun control? People are pretty passionate about 2A as well, right? What if there had been a leaked opinion related to Trump's claim of a stolen election? Another topic that people were extremely passionate about - enough to storm the capitol building, right?

    Would those leaks similarly demonstrate that SCOTUS should stop ruling on 2A or federal elections?

    If this was meant to be sarcastic, then my apologies. It doesn't read that way to me, but YMMV.

  4. How many posts is Blackman going to make that obsess about the leak rather than the decision itself?

    I don’t think there is anything more to say about the leak, at this point.

    1. How much are liberals going to obsess over J6 rather than the stolen election?

      1. I didn't realize it was possible to have a dumber take on this than Prof. Blackman. Thank you for enlightening me.

      2. What stolen election?
        Kennedy Vs Nixon?

      3. What decision? So far, there isn't one.

      4. January 6 actually happened. A stolen election didn't.

        1. January 6 happens every year. An insurrection did not happen that year. The actual insurrection started with the Hilary and the Obama administration perverting the DOJ.

    2. We don't have a decision yet. We have a draft opinion from 3 months ago.

    3. And yet here you are discussing it? I think his spamming posts about "leakgate" is a bit much yet here I am? And more broadly bloggers post about what interests them. If it doesn't interest you (eg the frequent Russian poetry posts don't do much for me) just skipping over them and moving on seems more sensible than joining the comment threads.

  5. As if the Supreme Court will be done with abortion cases after this. Next up will be state laws that prohibit interstate travel for the purpose of obtaining an abortion elsewhere.

    1. No need. If the traveler is a left wing Marxist incapable accepting personal responsibility -no charges. If the traveler is a patriotic supporter of the Constitution who was raped - guilty - no trial needed.

  6. SCOTUS should exit the abortion arena because it's not a Federal issue. I'm against abortion, but if the Federal government wants to amend the Constitution to permit abortion, then that is the route they should take. Sans a Federal law, it should be a state issue.

  7. Tinfoil time.

    The leak happened just in time for the Washington Post to unveil a poll that "A majority of Americans say the Supreme Court should uphold Roe v. Wade, the landmark ruling that established a constitutional right to abortion, a Washington Post-ABC News poll conducted last week finds."

    https://www.washingtonpost.com/politics/2022/05/03/most-americans-say-supreme-court-should-uphold-roe-post-abc-poll-finds/

    1. "With the Supreme Court poised to overturn the right to abortion, the survey finds that 54 percent of Americans think the 1973 Roe decision should be upheld "

      Polls in general are silly and biased, and many are fake propaganda. But even if it weren't, probably 1 in a thousand respondents have the slightest clue what "upholding Roe V Wade" really actually means.

      Most aren't even aware that restrictions were passed, much less the details of them. From the article, "Arizona, Florida, Idaho, Kentucky, Texas and Wyoming have passed new abortion restrictions recently. The Post-ABC poll finds 4 in 10 residents in these states are aware that recent abortion restrictions were passed in their state, but a majority said they were unaware of new restrictions."

      A broader look at polls in general indicates that the vast majority of Americans support some restrictions on abortion, major restrictions compared to the modern leftwing position. Gallup polling for example, shows around 50% or more say abortion should only be legal in some circumstances while another 20% say illegal in all circumstances. That's 70%. And what's more 55-60% say abortion should be either illegal in all circumstances or legal in "only a few" circumstances. https://news.gallup.com/poll/1576/abortion.aspx

      This quite reasonably sounds akin to European policies -- those vaunted paragons of progressivism -- which are far more restrictive than the unhinged American left. Here's a good graphic showing abortion policies:

      https://vividmaps.com/wp-content/uploads/2021/09/abortion.png

      1. If you asked the random American, they'd likely say that SCOTUS should uphold Plessy v. Ferguson

        1. A rather dim view of your fellow citizens, Don Nico.

          1. It's true, and need not be considered dim. I appreciate the largely apolitical outlook of the average American.

        2. similar to the poll question supported by 80% of republicans - Should the US ban "the pollution" that causes climate change ?

          Wording of the question makes big difference in the responses

  8. I find these posts very compelling and thank Prof. Blackman for making them. While I am passionate about a number of hot-button political issues, I see both sides of the abortion issue, and find myself very much on the fence with abortion as a policy. That said, from the flawed reasoning of Roe, to the stare indecisis of Casey, to the Epicycles, to the incredible and unbelievable leak of a draft opinion, it is clear that the cost of maintaining a right to abortion as a matter of Constitutional Law is far beyond what the Court can afford.

    1. So much wrong with this view. Do you seriously think anything that becomes "too controversial" should be taken out of SCOTUS's hands? Which article of the Constitution provides for that?

      The whole point of having a constitution and laws is precisely to deal with controversial issues, so they don't have to be decided by force.

      Also, taking SCOTUS out of the equation just pushes the "cost" down to the states. What happens when someone leaks a draft opinion on abortion from a state supreme court? Take it out of their hands too?

      1. I can't be sure, but I think GB2 is having us on.

  9. This is hilarious.

    What other decisions are so important that the SCOTUS cannot be involved?

    I think we should start a list...

    1. I don’t think anyone is saying that the court can’t interpret the law, what they are saying is the court shouldn’t make the law.

      1. If the court could have spoken with any certainty about what is a human life, when does one come into existence, and when one is deserving of full and equal protection then maybe the issue would have been settled.

        That they cannot or will not really should have told them to leave it up to the legislatures.

  10. No forensic IT analyst is going to be necessary to trace back who had access to that file. An average help desk tech with a high school diploma could probably figure it out in less than a day.

    You have essentially a version number to run a query on through file servers and email. That is going to give you a short access list.

    Then, I'm assuming that the person who scanned this in probably wasn't extremely tech savvy as it looks like a standard commercial feed scanner. My guess is it was court tech used, which is going to make the job all that much easier. Most leave what I will call a "watermark" tell (no it isn't exactly that, but close enough) which could track it down to the exact machine used.

    That information with a scan audit log, access list, probably security cameras covering at least an entrance and exit, and whoever did this is going to be found out soon enough.

    Again, this is assuming an inside job and not an external outside the firewall hack. I'm assuming that unless someone on the court got sloppy like emailing a copy of a draft to a personal account for convenience sake, their stuff is nice and secure behind government firewalls, enough so that it would take a diligent state actor (or private equivalent) to breach.

    If I were the leaker here, I would be talking to a lawyer and planning how I would pay for bail (assuming they broke some law, which seeing walking down the street the wrong way is a federal crime I'm sure they will get hit with something).

    1. Aw but you're assuming the law will be enforced in this case. Remember falsifying a FISA warrant is no big deal but if a Capitol policeman waves you into the Capitol and thats a felony

    2. But you're right it should be easy to catch the leaker.

    3. It’s always a great day for IT when the stars align to enable this kind of simplistic tracking. Often they don’t, and the data IT provides is just a part of a puzzle that only gets solved with the addition of interviews, depositions, and subpoenas.
      If I were to try and pull off this leak, I’d probably pull a physical copy, physically smuggle it out. Remember when Sandy Berger smuggled out data about the Clintons from the national archives? Something like that. Then scan on a third party scanner, probably buy a shitty one with cash, dispose of it when done, return physical copy, wait a while, then leak via anonymous email, accessed via VPN, paid for with gift cards purchased with cash, using a burner laptop, from a public WiFi service. Kill thumb drive and laptop, do some mental exercises to clear one’s own memory of the events and embed new mental “truths” to fill in blanks to make inevitable interrogation/interviews easier.
      Hardest part there is the physical smuggling and that may be a lot easier than we imagine, especially in a culture that presumes all staffers believe in the mission and integrity of court.

      1. That would make it harder but not impossible to track you down. Keep in mind there are cameras everywhere these days. Even though you used cash, the business is going to have video of your purchase. (That is what got the hoaxers in the Jussie fake hate crime case.) And many other trails are being created every time you try to start a process to stop traceability.

        Sure your scenario is better but not infallible. A diligent investigation is going to come up with enough to at least charge you. Maybe you can shake out reasonable doubt without a lot of physical evidence, but they are going to be able to place you close to a document at around the time it disappeared (or is thought to have done so) and enough supporting evidence that would lean heavily on the fact you did it. Yeah they don't have you red handed, but if they have you buying a laptop, scanner, usb key drive which you magically no longer have along with tracing metadata of your email back to whatever public wifi which between video, geofencing, and third parties will probably have a least one corroborating, piece of evidence you were there, I think any reasonable jury is probably going to think you did it.

        1. I don’t disagree, my point is that the resources needed to track this down go beyond the IT team. The IT team loses value quickly when the electronic signals are divorced from the organization’s infrastructure.

          Even to use cameras, one has to have an inkling of where to look. If I drive 100 miles away, buy a Best Buy gift card at a Walgreens with cash three months prior, no other financial transactions along the way, what would give you cause to look at CCTV at _that_ Walgreens, assuming they’ve even retained footage beyond 90 days? How would you even know to be looking for a Best Buy gift card? Maybe by chance you catch my vehicle driving the freeway and going to Walgreens. Why would that constitute a thread to pull on? “Why were you at Walgreens, Mr. Anderson?”, “cough syrup”, “we have video of you buying USB drives”, “no you don’t”. I mean, in this example the gift cards are to anonymously buy a vpn subscription, and then burned. You get your vpn creds using an anonymous email receiver. Of course you don’t acquire your scanner retail, you buy it with cash in a parking lot via Craigslist. Same with your burner laptop. You don’t use your own email, you use one of many one-time use anonymous email services via the vpn and/or tor. You don’t use your own internet. Etc etc. I could go on and on with this thought exercise - it’s pretty fun to do and there is a point where some real technical experience can become necessary when you start to really bullet-proof the plan, but I think everything listed so far is pretty much basic problem solving about anonymizing online activity, though it does depend on awareness of the services that are available to you. One’s preliminary research on this topic might damn you: “Mr. Anderson, we see you had 15 google searches about how to anonymously buy vpn service and send email, care to explain that?” You have to be thinking about anonymizing your phase zero activities. 😀

          It takes effort, but I think if you’re planning to leak SCOTUS data, you’d be a fool not to study for it. Often criminals are idiots, even “smart guys” make dumb mistakes out of laziness. Maybe self-righteousness makes the leaker not give a damn about getting caught. I have to think that such a person would have read all of Snowden’s Cliff’s Notes, at least. And Berger, as mentioned. Anyway, point is, if ur not using the organization’s infrastructure, the investigation needs to rely on some old school basics more than the IT help desk tech, unless the leaker was exceedingly careless.

          Personally, I imagine the FBI is already an unadvertised investigator in this. They’ll hit the interviews hard, establish boundaries of the data access and possession, gag everyone (figuratively), and probably proffer some false narratives in subsequent interviews (“we need your help”) about how the leak happened and see who is all to eager to support a ludicrous theory - a tell of misdirection (e.g. see Ubiquiti’s internal ransom problem and how that was cracked). I assume they’ll solve this with working the humans rather than the IT signals, just because in my experience the IT signals often deliver less than we’d all hope/expect for all but the most basic incidents.

      2. "Remember when Sandy Berger smuggled out data about the Clintons from the national archives? "

        The goal there, of course, wasn't to have the data, it was to see to it that the National Archives didn't. He took the only copies of a classified document, and then destroyed them.

        So now we'll never know what he was on a mission to remove, only that it was probably embarrassing/incriminating for somebody. Enough so that it was worth getting a record.

        Well, it was probably worth it for the lucrative jobs he was given afterwards, too.

        1. "That was just Sandy being Sandy." - Hillary Clinton. "Oh, well in that case never mind." - The Press

          1. I have a brother-in-law - well, concuñado - that said, “[wife] and I don’t believe the Clinton’s are corrupt.” I don’t know what to say to that to people who have managed to avoid 25 years of information strongly implying otherwise. Sandy Berger being one of the most audacious examples, and certainly not the last incident of apparent defensive destruction of data/spoliation.

            1. The Clinton Body Count List says it all....

    4. Then, I'm assuming that the person who scanned this in probably wasn't extremely tech savvy as it looks like a standard commercial feed scanner.

      That may well have been Politico's scanner. The PDF metadata shows creation/last modified of 7:25pm last night. It would surprise me a bit if they don't have a standard doc sanitization drill for stuff like this.

      I'm leaning toward the original capture being a series of photos, which also would be one of the easiest ways to smuggle it out undetected. The text scale is subtly different from page to page, and there's some (again subtle, but evident) keystoning on some pages as well. Also, the edges of the pages are clearly visible against whatever white background was behind them, and the pages weren't laying perfectly flat. I'd not expect any of that from a commercial auto feed scanner.

      1. >original capture being a series of photos

        Apple can (and apparently does...the recent controversy was about adding on-device scanning) scan photos uploaded to iCloud. I wonder if they'll volunteer (marshall can't subpoena?) to help this investigation?

      2. Using their own phone would have been dumb, but the characteristics you describe seem to imply a camera scan rather than ADF or flatbed, for sure.

    5. Really do not need any IT wizardry.

      Just give Politico - homes and offices - the Project Veritas treatment.

      Reason didn't seem to have a problem with it last time around...

  11. abortion drives people to such extremes

    I'd say that what "drives people to such extremes" is having a certain political orientation, rather than any particular subject matter.
    Remember this:
    https://spectator.org/52902_democrat-dirty-tricks/
    This is SOP for the left side of our political divide. Winning at all costs. And, as the Supreme Court leak illustrates, leftist members (or employees) of the Supreme Court are just as willing to stoop to these tactics as leftist politicians.

    1. Why do you assume the leaker to be a liberal, Ed Grinberg -- other than your status as a bigoted, superstitious, obsolete, resentful, right-wing culture war loser?

      Does a half-educated, worthless, defeated clinger also figure the leaker associated with the health care case was a liberal?

      The quality of comments at this white, male, movement conservative blog reinforces my sense conservatives have no chance to win the American culture war. Bigoted, superstitious, and ignorant is no way to be competitive with better people.

      1. Forget Roe v. Wade. The REAL question is, how long have you been a leftwing extremist homosexual?

        You know, just for the record.

        1. I am a proud member of the liberal-libertarian mainstream. Every moment I have devoted to stomping right-wing positions toward irrelevance in this great, improving country was a wise and enjoyable investment of time.

          I just don't like bigots. Right-wing racists, superstitious gay-bashers, conservative misogynists, Republican immigrant-haters, disaffected clingers, ugly white nationalists, disgusting white supremacists . . . I dislike 'em all. I blame my education and character.

          1. There is no "liberal-libertarian" mainstream. I'm a libertarian, and I despise you leftwingers even more than I do rightwingers.

            So you're bigoted against bigots. Big whoop.

            Character? Education? As to education, who knows. The only character you have is that of a troll. You add NOTHING of note or value to this forum. At least court jesters were supposed to be funny. You're about as amusing as a raging case of genital warts.

            But by all means, keep "clinging" to your leftwing extremism. In the end, it's all you have.

      2. Too many adjectives, Kirkland.

    2. Dirty tricks and doing everything to win is how conservatives got control of the supreme court.

      I *wish* liberals did everything to win. They're so fucking hung up on norms and bipartisanship and nominating neoliberal trash like Biden that Republicans are going to succeed next time they try a coup.

    3. "...rather than any particular subject matter."

      Right, because issues of fundamental rights - be it right to life and/or right to bodily autonomy - do not otherwise lend themselves to extreme sorts of behaviors.

      1. What's your view of the Draft? That thing which sent millions of men to their death?

  12. “I've noticed that everyone who is for abortion has already been born.”

    ― Ronald Reagan

    1. The idea is really only popular with women who have never had children, those who don't identify as heterosexual, men who prefer a Chad lifestyle, and political elite mostly being academics.

      It polls horribly with actual mothers, fathers, almost anyone who treats religion seriously, and normal human beings.

      1. Exactly. If we had sensible restrictions on voting, this wouldn't even be an issue.

        1. Does a week ever pass without someone mentioning at this white, male, shit-rate right-wing blog that only heterosexual white males who claim to believe fairy tales are true should get to vote?

          The record indicates that this white, male blog usually doesn't let a month pass without using a vile racial slur, often gratuitously, just to show everyone where its sentiments -- and the preferences of the bigoted, disaffected, right-wing white males it ardently attracts -- reside.

    2. "I've noticed that most people who are against abortion are people nobody would want to fuck in the first place."

      - George Carlin

      1. Reagan's observation at least had to virtue of being true.

        1. Attend a FedSoc panel and you'll see Carlin's was as well.

          1. Your female justices are Kagan and The Wide Latina.

          2. Studies show conservatives are more physically attractive than liberals. Everyone knows it from experience, too. https://www.washingtonpost.com/news/wonk/wp/2017/01/10/conservatives-really-are-better-looking-research-says/

            Relatedly, the psychology of modern leftism is characterized by low self-esteem, self-hatred, guilt, depressive tendencies, despair and feelings of hopelessness, etc.

            1. So you're saying that Republicans are good-looking gullible, bigoted, superstitious, obsolete, half-educated culture war casualties?

          3. Jeez, you hit a nerve Teefah.

            I thought it was dumb trash talk, but it was actually a bait they can't seem to resist!

          4. I'm pretty sure, (Well, moderately sure, at least open to the possiblity...) that you understand the difference between "most people against abortion are ugly" and "some people against abortion are ugly". A fairly high proportion of people against abortion have had kids, I assume it wasn't all by in vitro fertilization.

          5. Delores O'Riordan was quite vocal in her opposition to abortion.

            Put me down as a would have.

            The counter argument to FedSoc is any NOW meeting.

  13. When is the good professor going to criticise the conservative justices who lied about their views on Roe v Wade during their nomination hearing?

    1. They didn't lie.

      1. Saying it's settled law and/or a superprecedent sure seems like saying it's settled law.

        1. "settled law"

          Weren't Plessy and Bowers v. Hardwick "settled law"?

          Plessy lasted longer than Roe may have.

    2. justices do not give specific opinions during the confirmation process.

      1. They have said that it's settled law, or they don't think about it, etc. They don't give specific opinions on hypotheticals. But they have responded to questions on Roe - and they lied.

        1. Do you have a quote you can point to? Shouldn’t be hard to find, all the hearing transcripts are on the internets.

          1. Yes, several I've watched today, most of statements during their nomination hearings. A couple highlighted by a Republican Senator today, expressing shock that nominees lied to her.

            1. If she were smart, she wouldn't be a Republican.

              1. She did later add a caveat—the final decision hasn't been been released so she'll reserve judgement until that.

                I imagine she'll be shocked all over again.

    3. Makes you wonder what else Kavanaugh and Thomas lied about during their nominations. Hmmm.

      1. So you are saying they might be closeted biologists?

  14. This is bringing us toward the civil war we so desperately need. Music to my ears.

    1. All-talk, no-count bigots are my favorite culture war casualties -- and the Volokh Conspiracy's favorite followers.

  15. I hope there is a pissed off Justice Thomas right now looking at the New York guns case saying " oh screw it, we are going with constitutional carry!"

  16. Josh, it’s perfectly acceptable to pause and collect your thoughts on things. Encouraged even. Okay

    1. You really figure that's the way to land a spot on the faculty at South Texas College Of Law Houston (motto: 'there are still six schools worse than us!')?

  17. Did Josh Blackman really write: "I had long presumed such a leak would have been unthinkable, but abortion drives people to such extremes. This ultimate breach in Court confidentiality provides yet one more reason why the Supreme Court must exit the arena of abortion." ????

    Is this a general principle - that the Supreme Court should not rule on issues which "drive people to extremes"? Is that in the Constitution somewhere? Which clause, passage, or amendment says that the Supreme Court shall not rule on questions which drive people to extremes, Professor Blackman?

    1. This ultimate breach in Court confidentiality provides yet one more reason why the Supreme Court must exit the arena of abortion."

      That really is an insanely stupid statement.

    2. I think you can have a principle that the Supreme Court and courts in general shouldn’t try to settle political controversies where the constitution is silent.

      Obviously the freedom of speech, and the right to bear arms are political, but the constitution is pretty clear.

      Other areas where the judges have stepped in and made law with no such authority such as qualified immunity and abortion just leave a lingering mess.

  18. Nice little SCOTUS Mitch and the Federalist Society types have put together. It would be a shame if anything happened to it.

  19. The leaked draft decision also pointedly includes LGBT rights as the next target. This isn't just about abortion; it's about removing barriers that prevent the government from dictating morality rather than letting the citizens decide for themselves.

    1. Indeed, Alito beclowned himself with an embarrassing even by his standards intellectually dishonest argument where this will somehow only apply to abortion, because abortion is special, and involves a life, but somehow, contraception doesn't (even though many contraception methods involve not allowing a fertilized egg to implant, not that Alito's ignorant ass thought of that), and there's some magical limiting principle where every argument he made against Roe only applies to abortion... there's no right to privacy, but don't worry about the other things based on it, because abortion is just special like that, and we totally won't say the same thing about everything else.

      I've seen better writing from 1Ls. But I guess you're tightly constrained when being a partisan hack trying to explain how unprincipled you are.

      1. He doesn't have to write well to be better than what he's eviscerating, though; Even a lot of legal scholars who like the outcome admit that Roe was an unprincipled hack job that scarcely even tried to look like real constitutional reasoning.

        But, yes, he probably did try to limit the damage to just THIS particular judicial usurpation, I doubt the votes were there to clean up every judicial over-reach in the last half century.

        1. Pretty sure if you asked those academics, they'd tell you that not on sound legal footing != an unprincipled hack job.

          1. Don't Supreme court justices have some sort of obligation to make sure their rulings, especially the ones with major impact, be on a sound legal footing? I think that pretty much does imply that "not on a sound legal footing" = "an unprincipled hack job" for major cases.

            1. Sure, but that's also in the eyes of the beholder.

              To me, Kennedy failed the 'sound legal footing' test every decision he wrote. But he wasn't an unprincipled hack. See how that works?

    2. Well what is the originalist case for gay marriage. I’m proud to be from one of the very few states that legalized gay marriage democratically, rather than by judicial fiat.

      It’s worth noting that judicial meddling set back gay marriage at least a decade. Before the Hawaii and Massachusetts Supreme courts stepped in where they had no business, not a single state had a constitutional single sex ban. After the courts got involved over 30 states had constitutional provisions banning it, making it very difficult to solve the issue by normal political means. That’s a clear example of the courts stepping in an issue and making it more of a problem than it was.

      1. The originalist case for gay marriage is that original public meaning allowed for the framework of rights the Constitution set up to evolve via the usual way such things did at the time - incrementally, as with common law.

        It's not my case for gay marriage, but that's what real originalists like Baude say.

      2. Anti-Sodomy and "Crimes against nature" laws were an effective ban on same-sex marriage. Those existed long before the first state legalized same-sex marriage. Polls are showing over 2/3rds support for same-sex marriage as of 2021, but they also show 61% support for some form of abortion. I don't think it's the courts that are causing this issue but the nature of our primary elections combined with changes brought about by internet-based communication.

    3. Returning an issue to the States is not " letting the citizens decide for themselves"???

      Okay.

    4. Really? Cite the page and paragraph. Everything I've seen explicitly states this applies to abortion only and does not include marriage.

  20. Imagine a conservative justice complaining about liberal justices distorting things. That quote is a good laugh.

    It's not that the liberal justices don't, just god damn are conservatives blind to their own bullshit.

  21. Well, finally got a chance to start reading it. I'm only a couple pages in, but this is clearly going to be entertaining, Alito is being brutal.

    1. I like some sophistry in my dissents. But as a main opinion, even one I disagree with, I hope he tones it down a few notches. The emotionalism undermines the opinion as it is.

      Though I suppose if all you care about is owning the libs...

      1. Draft, you get it all down. Then you go through and pretty it up.

        1. I do suspect and hope that's what it is.

          1. Or maybe Alito’s words were divinely inspired and, a few centuries from now, will be considered by the few hundred remaining Christians to be the final book of the Bible.

  22. Abortion drives people to such extremes?

    Oh please, the left knows no boundaries so what would otherwise be extreme to them is justified at every occurrence.

    We have had left leaning judges breaking all sorts of norms with comments on cases before the court and fellow judges. its not like they don't broadcast their disdain for formalities and professionalism .

    1. the left knows no boundaries so what would otherwise be extreme to them is justified at every occurrence.

      Which is why you're posting partisan crap to the Internet without fear of reprisal.

      1. Which is why you're posting partisan crap to the Internet without fear of reprisal.

        Tell that to Libs of TikTok. Or the people who donated to the Canadian Truckers.

  23. I really do not understand what the leaker stands to gain by leaking this other than a ruined career (assuming law clerk or other SCOTUS employee). Ok its been leaked Pro Choice supporters are mad now instead of being mad in July. If you were trying to influence the elections releasing this as close to the election as possible would have been ideal the longer before the election this is made known the more likely that other issues will become the primary driver of voting.

    1. The Obamacare case leaker seems to have gotten away with it.

      So far, anyway.

    2. It could be to lock Roberts into voting with the majority, or rile up so much anti-partisan supreme court howling that he chooses to side with the minorty. Either way, his actions have no effect on the outcome for hundreds of millions of women.

      Maybe a fellow justice leaked it in the hopes that it would impact the coming elections and finally get the Dems to vote in large numbers.

      Or maybe a conservative justice leaked it because they couldn't hold in the glee over the serious pwning they were about to unleash.

      Let your imagination run wild. Without any additional information, every reason is equally likely.

    3. J., I assume that the motivation of the leaker or leakers (I think it very unlikely this was a solo leak) is to stir up so much public outcry among the pro-abortion folks that it will break one (or more) of the weaker-willed members of the supposed anti-Roe majority away from the Alito opinion. That could either "save Roe" or create a muddled result (no majority opinion and a bunch of partial concurrences).

      1. That is some solid wingnut thinking.

        Prepare for replacement.

  24. It struck me that if one applies Alito's reasoning about abortion as a right to Shirtleff - well, flying a flag is not an exercise of religion and, indeed, there is nothing in the text of the constitution (incl amendments) that stops Boston from refusing Shirtleff.

    So why didn't Alito dissent from Shirtleff? Aside from him being a vile and hypocritical scumbag, of course.

    1. Huh? Shirtleff was a free speech case. And free speech is protected in the text of the constitution (and amendments).

      I mean, I understand the desperate attempt to find gotchas, but do a better job than that.

  25. My question is: What gives the Supreme Court the authority to scale back a right? Once decided that something is a right of the individual - doesn't the constitution say the federal government (all 3 branches) has no authority over it? This being only after the right has been defined of course.

    For instance: Supremes rule that calling a police officer a pig is a right retained by individuals under the 1st Amendment. A later supreme court tries to say "Nope - calling him a pig is not covered." That's taking away something expressly reserved to individuals. Shouldn't it take a constitutional amendment to give the feds authority again?

    1. You've got the wrong understanding of judicial interpretation.

      A court ruled on the interpretation of the constitution/law. Later, a court determined the earlier ruling was wrong and a different interpretation is correct. No amendment needed.

      Now, if the Executive/Legislative wanted to overrule a SCOTUS interpretation of the constitution, that would required a constitutional amendment. Similarly, if SCOTUS ruled a specific way on the law, overturning that would require an amendment to the law.

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