Absence of Malice

[MyTeamIsOnTheFloor]

Watched it again this morning.

Its relevant again.

Abortion. Leaks. Law.

“Now you know and I know that we can’t tell you what to print, or what not to. We hope you folks in the press will act responsibly, but when you don’t there ain’t a hell of a lot anybody can do about it. But we can’t have people go around leaking stuff for their own reasons. It aint legal. And worse than that, by God it ain’t right. I can’t stop you, but I can damn well stop them.”

 

[hoot1]

Watched it again this morning.

Its relevant again.

Abortion. Leaks. Law.

“Now you know and I know that we can’t tell you what to print, or what not to. We hope you folks in the press will act responsibly, but when you don’t there ain’t a hell of a lot anybody can do about it. But we can’t have people go around leaking stuff for their own reasons. It aint legal. And worse than that, by God it ain’t right. I can’t stop you, but I can damn well stop them.”

MTIOTF, are you upset about the leak from a legal standpoint, because it violates proper court procedures, because it serves somebody's political agenda, or what ?

 

[HoosierJimbo89]

Watched it again this morning.

Its relevant again.

Abortion. Leaks. Law.

“Now you know and I know that we can’t tell you what to print, or what not to. We hope you folks in the press will act responsibly, but when you don’t there ain’t a hell of a lot anybody can do about it. But we can’t have people go around leaking stuff for their own reasons. It aint legal. And worse than that, by God it ain’t right. I can’t stop you, but I can damn well stop them.”

What about the Pentagon Papers and Watergate? Perhaps the people deserve to know what is going on with their democratic government? Perhaps the possibility of throwing out arguably the most famous SCOTUS case in history is the bigger point than a leak?

 

[MyTeamIsOnTheFloor]

MTIOTF, are you upset about the leak from a legal standpoint, because it violates proper court procedures, because it serves somebody's political agenda, or what ?

Both.

The justices write drafts on multiple sides of the issues in part so they can all discuss and persuade each other. It is not unusual for them to change votes, change minds. The anonymity and privacy of that process protects that process. It’s been damaged by someone selfish and arrogant and self-centered and/or political. The ability to have civil communications has been destroyed in this country. Now the court.

The courts job is to decide what is constitutional, not what is good or even preferable social policy. The rest MUST be left to political processes Or the Constitution is toilet paper. We need a non-political, deliberate, thorough and intellectual evaluation of issues that wind up at SCOTUS. It’s not a message board or Twitter. If we don’t like their decisions, our answer is legislative, not mob violence. Persuade your legislator. THAT is democracy in a Republic.

 

[CO. Hoosier]

What about the Pentagon Papers and Watergate? Perhaps the people deserve to know what is going on with their democratic government? Perhaps the possibility of throwing out arguably the most famous SCOTUS case in history is the bigger point than a leak?

The courts are not part of the democratic process. Interpreting and applying the constitution and federal law is not a referendum.

 

[HoosierJimbo89]

The courts are not part of the democratic process. Interpreting and applying the constitution and federal law is not a referendum.

They are part of a democratic government, and they make decisions that affect people. Their opinions are available to the public, as are the courts.

The effort to pack the Supreme Court with conservatives and overturn Roe v. Wade has been a political move by the right 50 years in the making. If the right and Court want to get political (and religious), then they shouldn't be whining about anything, including transparency.

 

[CO. Hoosier]

They are part of a democratic government, and they make decisions that affect people. Their opinions are available to the public, as are the courts.

The effort to pack the Supreme Court with conservatives and overturn Roe v. Wade has been a political move by the right 50 years in the making. If the right and Court want to get political (and religious), then they shouldn't be whining about anything, including transparency.

Transparancy is only useful for those individuals and institutions who are accountable to the public like legislators and executives. Judges work in a different arena. They are free of politics and are independent. I wouldn't want to live in a country where judges are subject to transparancy in the same way congress should be.

 

[Stuffshot]

Transparancy is only useful for those individuals and institutions who are accountable to the public like legislators and executives. Judges work in a different arena. They are free of politics and are independent. I wouldn't want to live in a country where judges are subject to transparancy in the same way congress should be.

Your comment about "transparancy" isn't so bad, but you're naive in claiming judges "are free of politics and are independent."

As I recall, every state judge in Indiana is elected along Republican-Democrat party lines, and Indiana Supreme Court justices are subject to a recall vote. Federal judges are appointed for life (after a politically charged nomination and confirmation process) but federal magistrates are appointed only for a fixed term (and no one doubts their re-appointment to a subsequent term is also politically influenced).

And, of course, every single SCOTUS nominee lies about whether his/her opinion is already made up about political issues favored by one party or the other.

Judges are not necessarily neither free of politics or independent. Maybe it's different in Colorado, but wait !! Where is Neil Gorsuch from, again?

 

[bawlmer]

Both.

The justices write drafts on multiple sides of the issues in part so they can all discuss and persuade each other. It is not unusual for them to change votes, change minds. The anonymity and privacy of that process protects that process. It’s been damaged by someone selfish and arrogant and self-centered and/or political. The ability to have civil communications has been destroyed in this country. Now the court.

The courts job is to decide what is constitutional, not what is good or even preferable social policy. The rest MUST be left to political processes Or the Constitution is toilet paper. We need a non-political, deliberate, thorough and intellectual evaluation of issues that wind up at SCOTUS. It’s not a message board or Twitter. If we don’t like their decisions, our answer is legislative, not mob violence. Persuade your legislator. THAT is democracy in a Republic.

I abhor the leak and the person who did it. But, I have to ask (not just you, but others too). If you sat on the SC, would the leak and the surrounding uproar affect your analysis and decision? I like to think it wouldn't, but I've never practiced law.

 

[CO. Hoosier]

Your comment about "transparancy" isn't so bad, but you're naive in claiming judges "are free of politics and are independent."

As I recall, every state judge in Indiana is elected along Republican-Democrat party lines, and Indiana Supreme Court justices are subject to a recall vote. Federal judges are appointed for life (after a politically charged nomination and confirmation process) but federal magistrates are appointed only for a fixed term (and no one doubts their re-appointment to a subsequent term is also politically influenced).

And, of course, every single SCOTUS nominee lies about whether his/her opinion is already made up about political issues favored by one party or the other.

Judges are not necessarily neither free of politics or independent. Maybe it's different in Colorado, but wait !! Where is Neil Gorsuch from, again?

I don’t like popularly elected judges. Our federal system was pretty good until Kennedy broke it with Bork. We can do much better when picking judges, but we don’t have the will. I thought Biden’s commission might propose some useful changes, but it didn’t—because of politics.

 

[HoosierJimbo89]

Transparancy is only useful for those individuals and institutions who are accountable to the public like legislators and executives. Judges work in a different arena. They are free of politics and are independent. I wouldn't want to live in a country where judges are subject to transparancy in the same way congress should be.

I understand SCOTUS has a process for forming opinions and the Court is supposed to be independent. However, I would disagree that the Court is free from politics in reality, especially regarding abortion.

Stare decisis is a very important judicial principal, and SCOTUS is entertaining throwing out a 50 year old case that, in my opinion and that of most Americans, shouldn't be thrown out. This bothers me a lot.

I still think SCOTUS is capable of doing their job, and there is no law that requires transparency or addresses SCOTUS leaks. They are appointed for life, and a leak doesn't change this. Maybe some protests occur or some feelings are hurt: the justices have thick skin or should. There is nothing normal about abortion law, and SCOTUS should be ready for the carnival if they want to set it up.

 

[Hank Reardon]

I abhor the leak and the person who did it. But, I have to ask (not just you, but others too). If you sat on the SC, would the leak and the surrounding uproar affect your analysis and decision? I like to think it wouldn't, but I've never practiced law.

If the resulting opinion doesn't generally match the draft, the consensus will surely be that the uproar "changed the vote." It won't matter if it's true, or if the ultimate decision would have been the same regardless. In fact, I'd suggest that the final opinion is LESS likely to change now as perhaps they won't want to give the impression that they were bullied.

 

[Stuffshot]

I understand SCOTUS has a process for forming opinions and the Court is supposed to be independent. However, I would disagree that the Court is free from politics in reality, especially regarding abortion.

Stare decisis is a very important judicial principal, and SCOTUS is entertaining throwing out a 50 year old case that, in my opinion and that of most Americans, shouldn't be thrown out. This bothers me a lot.

I still think SCOTUS is capable of doing their job, and there is no law that requires transparency or addresses SCOTUS leaks. They are appointed for life, and a leak doesn't change this. Maybe some protests occur: the justices have thick skin or should. There is nothing normal about abortion law, and SCOTUS should be ready for the carnival if they want to set it up.

I really hope there is a "law" that prevents Supreme Court justices from misleading the public about political mayyers.

But look at the omission of speeches missing from the directory on the Supreme Court's own web site:

Speeches

www.supremecourt.gov

Where is the listing for Long Dong Thomas' speech at Notre Dame in 2021?

Supreme Court Justice Clarence Thomas delivers speech at Notre Dame

On Thursday, hundreds gathered to listen to Supreme Court Associate Justice Clarence Thomas as he delivered the 2021 Tocqueville Lecture at the University of Notre Dame.

www.wndu.com

And, the supposedly "independent" Supreme Court's own website directory does not list (i.e. hides) Long Dong Thomas' proposed review of federal internet immunity, in a speech delivered just 6-7 weeks ago in March, 2022:

Supreme Court Justice Clarence Thomas Wants a Section 230 Reckoning

The Supreme Court justice recently hinted that Section 230 could soon be in the highest court’s crosshairs.

thefederalist.com

Where is the listing for Breyer's sperch in 2022?

Read: Justice Stephen Breyer's White House remarks after announcing his retirement | CNN Politics

Justice Stephen Breyer appeared alongside President Joe Biden at the White House after announcing his retirement. Read a transcript of his remarks below:

www.cnn.com

They are human. They prosper from politics.

 

[mcmurtry66]

If the resulting opinion doesn't generally match the draft, the consensus will surely be that the uproar "changed the vote." It won't matter if it's true, or if the ultimate decision would have been the same regardless. In fact, I'd suggest that the final opinion is LESS likely to change now as perhaps they won't want to give the impression that they were bullied.

I imagine this was before deliberations. Pretty shitty it got out.

 

[MyTeamIsOnTheFloor]

I abhor the leak and the person who did it. But, I have to ask (not just you, but others too). If you sat on the SC, would the leak and the surrounding uproar affect your analysis and decision? I like to think it wouldn't, but I've never practiced law.

It might make Alito dig in and fight harder for his view, but I would hope the others stick to their own guns based on principles of law, not social pressures.

 

[MyTeamIsOnTheFloor]

I understand SCOTUS has a process for forming opinions and the Court is supposed to be independent. However, I would disagree that the Court is free from politics in reality, especially regarding abortion.

Stare decisis is a very important judicial principal, and SCOTUS is entertaining throwing out a 50 year old case that, in my opinion and that of most Americans, shouldn't be thrown out. This bothers me a lot.

I still think SCOTUS is capable of doing their job, and there is no law that requires transparency or addresses SCOTUS leaks. They are appointed for life, and a leak doesn't change this. Maybe some protests occur or some feelings are hurt: the justices have thick skin or should. There is nothing normal about abortion law, and SCOTUS should be ready for the carnival if they want to set it up.

As I said before, I have not read the leaked version. And won’t.

But if what I hear is accurate, Alito’s problem is more with the way a right to privacy was created/found/used, than with abortion per se.

Scalia would have scrapped the whole doctrine of “substantive due process” if he could, although he did not really appear to object to the same rights if created by the legislative process.

 

[HoosierJimbo89]

As I said before, I have not read the leaked version. And won’t.

But if what I hear is accurate, Alito’s problem is more with the way a right to privacy was created/found/used, than with abortion per se.

Scalia would have scrapped the whole doctrine of “substantive due process” if he could, although he did not really appear to object to the same rights if created by the legislative process.

Scalia and Alito were not around in 1973, and it has been 50 years. If they don't like substantive due process, then they are free to not use it going forward. There is no point in getting the abortion carnival up and running again based on conservative judicial philosophy/principal and politics (probably mainly politics). Stare decisis matters, and Roe v. Wade is not the Dred Scott case.

Be careful what you wish for, and the SCOTUS justices want to play politics. They are in the game now.

 

[hoot1]

The courts are not part of the democratic process. Interpreting and applying the constitution and federal law is not a referendum.

What about a presidential candidate who promises to end a precedent which has been the law for five decades by appointing Justices who will overturn the law. ?

Sounds like using the democratic process to achieve support from ordinary citizens in order to get a majority on the court to change a federal law which has been the law of the land for 50 years.

 

[CO. Hoosier]

What about a presidential candidate who promises to end a precedent which has been the law for five decades by appointing Justices who will overturn the law. ?

Sounds like using the democratic process to achieve support from ordinary citizens in order to get a majority on the court to change a federal law which has been the law of the land for 50 years.

I don’t like litmus tests for any judge. That said, there are a lot of serious legal commentators who have said R v W is bad law. So I don’t know if this particular decisions lends itself to ideological commentary, but that is what the public on both sides want.

 

[Hoopsdoc1978]

They are part of a democratic government, and they make decisions that affect people. Their opinions are available to the public, as are the courts.

The effort to pack the Supreme Court with conservatives and overturn Roe v. Wade has been a political move by the right 50 years in the making. If the right and Court want to get political (and religious), then they shouldn't be whining about anything, including transparency.

No one has made an effort to “pack the Supreme Court with conservatives”.

That’s a tired busted talking point.

 

[hoot1]

I don’t like litmus tests for any judge. That said, there are a lot of serious legal commentators who have said R v W is bad law. So I don’t know if this particular decisions lends itself to ideological commentary, but that is what the public on both sides want.

Good point in terms of some legal scholars pointing to Roe as being bad law from the get go.

When I made my post about long time precedents my thoughts turned to overturning Plessy.

In my non- constutional legal expertise amateurish opinion, I saw the overturning of Plessy to be at least somewhat an appeal to the popular political climate of the day.

As to overturning Roe, I sense plenty of politics having taken place over the past 50 years leading to this decision.

Unfortunately, unlike overturning Plessy, I don't see the overturning of Roe to be anything but make our already politically divided country even more at odds.

Additionally, more Americans will look at the USSC as being more of a political institution than even after the Roe decision.

 

[HoosierJimbo89]

No one has made an effort to “pack the Supreme Court with conservatives”.

That’s a tired busted talking point.

You must be living under a rock.

 

[HoosierJimbo89]

Good point in terms of some legal scholars pointing to Roe as being bad law from the get go.

When I made my post about long time precedents my thoughts turned to overturning Plessy.

In my non- constutional legal expertise amateurish opinion, I saw the overturning of Plessy to be at least somewhat an appeal to the popular political climate of the day.

As to overturning Roe, I sense plenty of politics having taken place over the past 50 years leading to this decision.

Unfortunately, unlike overturning Plessy, I don't see the overturning of Roe to be anything but make our already politically divided country even more at odds.

Additionally, more Americans will look at the USSC as being more of a political institution than even after the Roe decision.

Roe v. Wade solved the abortion debate as well as possible: throwing it out will unsolve it.

 

[CO. Hoosier]

In my non- constutional legal expertise amateurish opinion, I saw the overturning of Plessy to be at least somewhat an appeal to the popular political climate of the day.

As to overturning Roe, I sense plenty of politics having taken place over the past 50 years leading to this decision.

Unfortunately, unlike overturning Plessy, I don't see the overturning of Roe to be anything but make our already politically divided country even more at odds.

Additionally, more Americans will look at the USSC as being more of a political institution than even after the Roe decision.

Dobbs put the time limit front and center. Deciding the time limit is unavoidable. In defense of the draft decision (which I haven’t read) I don’t know how the court can set a time limit. That is obviously a legislative decision.

 

[hoot1]

Dobbs put the time limit front and center. Deciding the time limit is unavoidable. In defense of the draft decision (which I haven’t read) I don’t know how the court can set a time limit. That is obviously a legislative decision.

As has always been my position. My solution is for a Constitutional amendment giving the unborn protections of personhood as per the 14th Amendment at a point in time after implantation (not conception as to avoid all the conceptions which are naturally aborted or aborted through medications).

Granted even my approach would face some tough obstacles. Nevertheless, at least we could have a national consensus versus a complicated set of state by state laws. A complicated set of laws toward which I see us heading.

 

[HoosierJimbo89]

As has always been my position. My solution is for a Constitutional amendment giving the unborn protections of personhood as per the 14th Amendment at a point in time after implantation (not conception as to avoid all the conceptions which are naturally aborted or aborted through medications).

Granted even my approach would face some tough obstacles. Nevertheless, at least we could have a national consensus versus a complicated set of state by state laws. A complicated set of laws toward which I see us heading.

The goal of the right has been to restrict access to abortions and make them as burdensome as possible, and the courts have been bombarded with abortion litigation since Roe v. Wade. Mainly poor women get abortions, and it costs money to travel. The right wants the states to decide because some states will outlaw and criminalize abortions like they did before Roe v. Wade, including crossing state lines to get an abortion.

 

[UncleMark]

If the resulting opinion doesn't generally match the draft, the consensus will surely be that the uproar "changed the vote." It won't matter if it's true, or if the ultimate decision would have been the same regardless. In fact, I'd suggest that the final opinion is LESS likely to change now as perhaps they won't want to give the impression that they were bullied.

Exactly. Which is why I'd be inclined to think the leak came from the conservative side, hoping to lock in the votes to overturn. This first draft was from what, January? Why wait until now? Maybe Kavanaugh was getting squishy, or maybe Gorsuch or even ACB wanted to water Alito's screed down a bit.

There's nothing to be gained for the choice side to leak it now. In fact, it could be the opposite. The uproar will be tapering down further by November; it will be harder to keep up the drumbeat for an extra couple of months.

Don't be surprised if it turns out that a clerk's partner or roommate is the source. Gotta believe the drafts are on laptops that are taken home, and access to them is going to be simple when they're running on the kitchen table.