We're back to talk about the big news: the draft of Justice Alito's opinion in Dobbs, and the questions that surround it -- how and why this might have happened, what it means for the Court, and what the Court can do about it.
We're back to talk about the big news: the draft of Justice Alito's opinion in Dobbs, and the questions that surround it -- how and why this might have happened, what it means for the Court, and what the Court can do about it.
[Divided Argument intro]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. Okay, I know each time we think we're going to be able to come back sooner than we do. It's been a long time, it's been a month, a little bit more than a month. I feel like we've got some decent excuses this time. What's your excuse?
Will: I got COVID, and I had to quarantine in my office. What’s your excuse?
Dan: And it was really terrible timing for you, because you having this great conference on the reconstruction amendments. I was there, had a bunch of great people, there was a great dinner. And I was hoping maybe we could find time to sneak in or even recording while I was in Chicago. But instead, [chuckles] you had to stay inside your house the whole time while everybody else had this amazing experience at UChicago on your Constitutional Law Center's dime. So, I'm sorry that happened. What have I got? I moved houses. So, I've been packing and unpacking, and that's been very time consuming.
Will: Moving house, is getting to leave your house, that sounds amazing.
Dan: Yeah, it turns out it's good. And so, I currently now I have two houses. If I had to quarantine, I could go to either one of my houses. But hopefully, I will only have two houses for another week or so. So, that's been busy, wrapping up this semester. But all of these promises are totally unenforceable. But my schedule is a little freer. I'm hopeful that as the rest of the term ramps up and we start seeing more stuff happening, I'll be able to be in the mix recording a little bit more. We'll see.
Will: Promises, promises.
Dan: Yeah.
Will: I've still got another week and a half of classes to get finished teaching. But yeah, I'm hoping we'll be able to really maintain a more regular [crosstalk] doing things.
Dan: I think there will be a lot that's happening. Although as we're going to talk about today, we got a very unusual preview of a case that normally would come down at the end of the term, last day of the term., we got to see some of that earlier. I think you know what we're talking about, but let's wait on that for just a minute, because we probably have some follow-up. What's your follow-up?
Will: Let's see. Two things worth mentioning, I think. Last episode, as I vaguely recall it through the brain fog, we talked about the Tsarnaev case, and we talked about a concurrence by Justice Barrett about the question of whether or not the courts of appeals had any supervisory power over the lower courts, and the Supreme Court was differently situated at all. We noted some of our arguments. A lot of readers wrote in to remind us of a fact that we had forgotten. I think Spencer Livingstone was the first of the people to write in, but there are many readers who wrote us in, to point out that there is an important prominent law review article on the topic of the supervisory power of the Supreme Court by Professor Amy Coney Barrett, that is I think not cited in her concurrence as a slightly odd flex.
Dan: It's pretty unusual for a justice to cite their own scholarship. I feel like Justices often cite their colleagues' scholarship. And we have an example of that today, but I think it's actually relatively rare for Justices to cite their own articles, don't you think?
Will: I guess that's right. It's just strange not to, but when you just-- you know.
Dan: Ah, that's a little bit boastful. Yeah, I think I must have read that at one point when I was doing a little bit of stuff in connection with Barrett nomination. This is the second time I think this has happened. There's one other article of hers that she wrote about that, we forgot. So, hopefully, we will not do that a third time. But it costs you some credibility, Will, because you made these bold claims about how she is the best legal scholar in decades to join the court, better than Breyer and Kagan. Well, you didn't say that explicitly. Now, it turns out maybe you don't even know any of her articles.
Will: I think it strengthens the claim in two ways. So, one is she has a lot of articles, unlike Kagan, where probably which [crosstalk].
Dan: [crosstalk] -she like eight articles, she doesn’t have that many.
Will: We can probably name all of Kagan's article off the top of our head because it's the small list, and Barrett--[crosstalk]
Dan: But she was in the academy for less time, and she was a dean for a big chunk of that time.
Will: Yeah, I'm not saying she had a bad productivity rate. Just saying the total amount of years spent as a scholar producing articles on a regular basis is different.
Dan: Fair.
Will: I think I had internalized this argument, and we talked about the argument a lot. It's just one of the many things that I now think of as just an important true claim of the Constitution. And then, I forget that they all come from the same person. So, it's like when if somebody whose work is so foundational that you forget that came from a mortal human being rather than--
Dan: Okay. So, she's living rent free in your head. Okay. Well, maybe that's true. Maybe it's just a clever, lawyerly response to my devastating critique of your claims, but I'll let it go.
Will: This reminds me of another point. I had lunch with some students in my [unintelligible 00:05:35] class yesterday. And one of them complained to me about my behavior in this podcast. In particular, that I never laugh at your jokes, apparently. I hadn't noticed this. But apparently, I never laugh at your jokes.
Dan: Well, I can see you, you're smiling. So, maybe you're straining your laughter to try to avoid even giving me a point.
Will: Yeah. I pointed out that almost all of your jokes are at my expense. So, that's why, and then he said that’s not an excuse.
Dan: You still think they're funny, though?
Will: Of course, they're funny. But I worry you already have the upper hand in this podcast, and so I've got a [crosstalk] cause.
Dan: Well, apparently, I do with your own students. If they're criticizing you for that, they think I'm funny.
Will: Yeah.
Dan: So, thank you, students.
Will: So, you've got a fan club.
Dan: Great. Okay, I'm going to go out on that piece of feedback on a high note, unless you have something else on that.
Will: One more, much more minor thing about Tsarnaev, but maybe important for the case, is we also talked about the fact that there weren't any Sixth Amendment other fair trial claims in the case, a point that Justice Thomas mentioned at the end when he declares that the Tsarnaevs received a fair trial. And one attentive reader point out actually, the defendant did raise a bunch of other constitutional claims that have just not yet been resolved, because the First Circuit granted relief on the two claims that the Supreme Court reversed. There actually are, in principle, a bunch of other claims below that could still set aside the--
Dan: Honoring them that they would--
Will: Yeah.
Dan: [crosstalk]
Will: Although, this is one of those awkward situations where now that there is a sentence in the Supreme Court opinion saying they received a fair trial as required by Sixth Amendment, there'll be a little bit of a fight on remand. This happened a couple years ago, the Supreme Court did this in an opinion by Justice Alito where, in one sentence, he maybe accidentally resolved a bunch of claims that [Dan chuckles] otherwise would opt for the court. And then on remand, the Ninth Circuit said, "Well, we were planning to reverse on those, but apparently we're not allowed to." And then had to go back up to the Supreme Court, and the Supreme Court had to amend its opinion, and summarily reverse itself.
Dan: There was a case from around the time I was clerking where something similar happened, that happened in, I think, the seventh circuit where the Seventh Circuit like-- the court summarily reversed on some other reason, and went back to the Seventh Circuit, and then Seventh Circuit said something that precluded the--- I think, it was a capital defendant, I remember, maybe it's just a prisoner's ability to like, raise a bunch of claims that had never been adjudicated. And so, the [chuckles] Supreme Court had been summarily reversed-
Will: Yeah, I remember that.
Dan: -again.
Will: Yeah, but from the other direction.
Dan: Yeah. I remember the Seventh Circuit wrote like a sheepish, whoops kind of opinion in response.
Will: There's one other sheepish Seventh Circuit opinion, there was an Easter Egg opinion, where an opinion went up at the Supreme Court and got reversed, and then it was remanded at Seventh Circuit. And apparently, the Seventh Circuit just didn't have a pile for opinions that need to be ruled on because they were remanded from the Supreme Court, because they get reversed summarily.
Dan: [laughs]
Will: It wasn't on any of the lists. Something like five years, it just nothing happened. And [crosstalk] kept calling the court, and the clerk of court will say, "Of course, the court's going to rule on your case, stop bothering us. How dare you?" When, in fact, it was just not in a pile where anybody was working on it. And eventually, Supreme Court noticed it, and--
Dan: That’s not great. Okay, I have an even smaller, less substantive feedback point. But my colleague, Ron Levin, one of our most faithful listeners, despite the fact that, I don't think he has a Twitter account, but somehow, I think he was the first one of my colleagues to pick up on this podcast. First one of my colleagues to pick up on the previous podcast. He often gives me a lot of substantive stuff about we get administrative law a little bit wrong, fair enough. But he had an interesting correction. He's from St. Louis, and he had never heard the term 'Hoosier' applied pejoratively in the county of St. Louis where he grew up. And he asked a friend from the city and they said, "Yeah, that is a thing," but we may have used it slightly incorrectly." It's not a dumb person. It's more of a class, it's means like a hick or maybe like a white trash person. So, there you go. So, maybe you're not a Hoosier. You're very urbane.
Will: No, I'm pretty trashy actually.
Dan: [chuckles] All right. So, thanks, Ron. But I also have another thing to say to Ron, which is that we've had an ongoing discussion about whether Dobbs, the Mississippi abortion case, was likely to be the case where the conservative majority actually took the step of overruling Roe. I said I thought it was based on the argument. He said, "No, they're going to still come up with some half measure and they'll do it next term." Looks like I'm probably right.
Will: I would say I was on Ron's side, I thought, even after argument that the chief had a 50/50 chance of pulling--
Dan: Yeah, but you're not giving yourself enough credit, because we talked about this case earlier, I think, around the time of the grant. And you said based on the wording of the question presented, I think this is-
Will: This is the one.
Dan: -maybe the one, and I think that was clearly right. I'm trying to remember, did they actually rewrite the question presented?
Will: I think not. They granted only one of three QPs.
Dan: Yeah. But that question presented was phrased in such a way that--
Will: I think in part that the other two QPs were more obviously half measures were like-- [crosstalk]
Dan: Yeah.
Will: [crosstalk] -questions about what is the controlling opinion in June Medical? Is it Justice Roberts opinion or is it the majority opinion, or the Breyer opinion? And there was no good reason to rule those out unless you [crosstalk] trying to get rid of some half measures.
Dan: QP1 was, "Whether all pre-viability prohibitions on elective abortions are unconstitutional," kind of a broad statement. Not phrased in terms of whether Roe v. Wade and Planned Parenthood v. Casey, the leading abortion precedents, have to be overruled, but fairly does seem to maybe rest on those questions. And so, I don't know. You never know, and it could be that certainly some of the Justices would have wanted to do that. Maybe the chief comes up with a way to uphold the law at issue here, but not actually go all the way and say, "No, we're actually overruling," those precedents that seems to be based on how he's behaved in some of these other cases. He does not seem to want to go all the way. Some people will say maybe he's worried about the legitimacy of the court if that happens, but we now know it is early May. We seem to have a much better glimpse of what is happening in this case than we would have expected to at this moment. Why?
Will: Well, on Monday night, two reporters at Politico released a copy of a draft opinion that somebody has given to them that they strongly believe is authentic, and the Supreme Court actually has since confirmed that it is authentic, although the court stressed that it's not the final opinion and so on, which is also true. So, we have a first draft opinion, drafted by Justice Alito circulated February 10th, 2022, in which in a 98-page opinion, speaking for the court, Justice Alito--[crosstalk]
Dan: Yeah, but some of that is an appendix.
Will: A lot of it is an appendix. Overrules Roe and Casey.
Dan: Lot to talk about here. I think we'll probably talk a little bit about the substance of the decision, which I think is obviously the thing that is most important to people across the country. This is an issue and people have very profound and deeply entrenched feelings about many, many women. It's going to affect their lives, they're need to get an abortion. Many people of different religious backgrounds are strongly opposed to abortion, because they believe it's murder. I think we'll say less about that than the nerdy technical procedural questions, talk about the leak. It's not really because we think that stuff is more important, but at least for me, it's where, I guess I feel I have more expertise to offer rather than I'm not necessarily an expert on the questions underlying the merits of the case. And I think everybody has views, their views are a lot going to be informed by their moral principles. And so, I don't know if I can offer a lot there that a lot of other people who have thought about these issues a lot more than I have can offer. But I do have do have some thoughts about what exactly is going on with the leak and with how the opinion is coming out and so forth.
Will: Well, as you know, Dan, I don't have your humility. But I do think it's hard to say that much for two reasons, slightly cross cutting. One is we really don't know what the court's ruling is going to look like. I know people say, "Oh, it's just a draft." It's not just a draft if Justice Alito wrote this, given the conversation in conferences, because there's a lot more sense of what the first few months look like. But as we'll talk about in a second, I think, one main reason this could have been leaked is because of possible tectonic shifts in what the majorities are looking like and what's going on. We don't know how that looks like and there are different ways that could look like, I don't know what the concurrences look like. So, it's just was harder to know exactly what to say. On the flip side, I also think it's an incredibly unsurprising opinion in some ways.
Dan: It's exactly the opinion you would have expected Justice Alito to write, had he been assigned the majority.
Will: It's exactly the opinion I would have expected Justice Souter to write, if he were still on the court, and for some reason voting with the majority. It's just like very workman like. It goes to the arguments and maybe more detail than I fully expected. Like if it were a Rehnquist-style opinion, you might expect that to be just like 18 pages, kind of get it done. It spends more time walking through why they found it unpersuasive, the historical analysis and various articles cited in the original Roe opinion, been widely criticized for being probably too cursory with respect to the equality theory of abortion, which the court's never really embraced, which is clearly foreclosed by the court's precedents but it's an ironic time for the court to be relying on precedents, [unintelligible 00:16:05] really precedent. It's probably not totally satisfying about how to distinguish other substantive due process rights, but it's a thorough workmanlike opinion. And there are a few footnotes that people are going to argue whether they go too far or not far enough. But I'm not sure we learned-- in some ways, having confirmed that nothing surprising happened is itself a little bit of a surprise, because it's such a big case, there could be lots of things going on.
Dan: Yeah. I guess, maybe one point about the substance, and then maybe circle back to the procedural questions. Cornell's Mike Dorf, great con law scholar and great public commenter on the court. He had a blog post today where he said something interesting, which is the draft opinion cries to, as you alluded, to distinguish what it's doing from other substantive due process precedents, like the gay rights cases, and so forth. And it says, "Well, the difference is--" I don't know if I have the right language right here, but basically, "The difference is abortion involves taking a potential life, whereas those cases don't." And he said, "Look, if you accept that framing, you're necessarily agreeing with anti-abortion advocates on the underlying moral views that they're advocating, that this is taking a potential life." I see that criticism, I wasn't totally sure where I came down on it, because you could interpret it saying, "Look, here, there is at least this plausible argument, and so that implicates weightier moral concerns in a way that maybe those other cases don't." I'm not sure. What do you think?
Will: I think the phrase that the draft uses is it refers to potential life and an unborn human being, and those are quotes from Roe. So, I think their point is that even on the even on the Roe's understanding, there's a debate about whether the potential life is human life, is entitled moral weight, is a moral person. There's a whole bunch of other labels we could debate about, but I think the idea is that in a lot of the other cases, the court basically concluded there was no plausible state interest in support of banning gay marriage, in support of regulating sodomy, etc.
Dan: Yeah.
Will: And here, there's a plausible state interest. Now maybe it's a state interest that people unbalanced reject and so on. I don't think that's totally right. I do think a fair criticism is it is not clear what work that distinction does. It's not clear even on Justice Alito's own account whether the substantive due process test somehow is different for rights that take potential life versus ones that don't, because this test is mostly based on tradition rather than moral facts, or whether that'd instead just be a stare decisis factor of some kind, like that would somehow change the various stare decisis factors. It comes across, as especially unreal, assuring promise, when you're told like, "Here's this distinction." But despite this court 70-page opinion, you can't tell--
Dan: Yeah.
Will: "Oh, the distinction is going to matter when we consider this." [chuckles]
Dan: Yeah.
Will: I hate to sound like-- well, I guess I was going to accuse you sounded this way. I think it's extremely unlikely that there will be five votes on the Supreme Court to overrule the other substantive due process cases. There'll be more than zero, but I think it's extremely unlikely there will be five.
Dan: Yeah. I actually feel the same way just because I feel like Obergefell-- I mean, it's just much more politically entrenched at this point in a way that abortion has stayed very politically divisive. If you talk to pro-choice people, they'll point to statistics that show Roe does have majority over super majority report. But it's not like gay marriage where you just see this generational change where, as new generations replace old ones, there's just much more support. I feel there's just not necessarily going to be the stakes or the desire to do it. Who knows what do they think? I think Mike Dorf is a good person to watch on his commentary, because I think it's been widely reported and discussed in legal circles, I don't think he's ever taken credit for it, is that Mike was the clerk for Justice Kennedy and Casey, where Justice Kennedy famously votes unpredictably to retain part of-- not exactly Roe, but part of it. Okay, that's probably, maybe we'll circle back to more substance in a second, but I feel we should talk about the stuff where we have some value.
Will: Right. I think that's surprising, again, I'll say, it's not so much his opinion. His opinion dropped in six weeks. I'm not sure anybody would have been surprised at all, that would [crosstalk] upset people.
Dan: Many people would have been upset, but--
Will: But they would have said, "This is exactly we warned you it's been happening, Cassandra like--" But I think the surprising thing is that this opinion dropped on the Politico website on Monday night.
Dan: Yeah. Just depending on how much you know about the court, this is crazy. This never happens. The actual full text of a draft opinion being leaked, being publicly available well before it was supposed to be released, this just does not happen. Occasionally, there are leaks sometimes after the fact about like, "Oh, this person switched their vote." Sometimes, there's murmurs about-- I remember there being murmurs, "Oh, the chief is maybe losing his nerve in the Affordable Care Act cases," but it was not reported as anything definitive.
Will: There have been some. I think [unintelligible [00:22:14] pointed this out that I think the result in Roe v. Wade was leaked a week or two before the opinion came out, because a law clerk was talking on a plane. Not recently, that would still be a very big deal if that happened today. But even then, it's not like somebody had the opinion and put it in the paper. This used to happen in the 19th century. As I recall, Justice Curtis' dissents in Dred Scott republished in a bunch of newspapers before the majority opinion came out. Charles River Bridge case. 19th century is different, it's a different media culture, and also, strangely, you can leak an opinion in the newspaper, and a bunch of people still wouldn't know about it if they didn't get that newspaper and stuff.
Dan: Yeah. I vaguely remember there was something else, [unintelligible 00:22:52] era, where someone leaked something about an opinion to their roommate who went and tried to make money off of it, but I don't remember the specifics-- [crosstalk]
Will: And there was a person in the reporter decisions office who got disciplined for talking to ABC or something. It's not that there are never leaks, but this kind of leak--[crosstalk]
Dan: This is shocking.
Will: This is shocking.
Dan: If you only think about other branches of government, there are leaks all the time from the executive branch. Congress can't maintain secrecy about anything. So, it's not even like we're talking about leaks out of Congress. But in terms of the executive, there's whistleblowers, there's people leaking all sorts of stuff, everybody writes these tell-alls after they leave. Court, it just doesn't really happen. Somebody, almost certainly someone did this intentionally. I'm trying to imagine if there's some scenario where this was inadvertently discovered. It seems unlikely, people tend not to bring the paper drafts of opinions outside of the building. I don't know--[crosstalk]
Will: I think it's not allowed.
Dan: Yeah, I think it's not allowed, but it doesn't mean nobody does it. I don't know what the current state of the InfoSec regime is at the court right now. When we were there, it was pretty rigorous. You had two different networks, internal and external. My understanding is that there's been a little bit more seepage between those, but someone, presumably-- and it looks like somebody printed this draft. The Politico could have printed it and scanned it, but what it looks like is somebody printed this draft, and mailed it, handed it over to Politico, and Politico scanned it and released it. If somebody chose to do that, first of all, who? And second of all, why? And there's a lot of speculation.
The first thing people are saying is, "Gosh, this is a liberal law clerk who is mad about this." Okay, that's possible. Other people are saying, "This is a conservative justice or law clerk who they thought they had the majority, and now Kavanaugh is buckling, and they need to get this out in the record to lock him down." Maybe, there are people playing six-dimensional chess, where they're like, "Okay, this will make the debate focus less about the substance and more about the process."
Will: I think there's four main categories of plausible theory, and those are two of them. And then, I think the other two plausible categories are, it's not a Justice or law clerk, it's somebody else in the building who has access--[crosstalk]
Dan: I think that might even be the most plausible thing.
Will: Maybe. And then, the fourth theory is it's an outsider. I know some people who very sincerely believe it's hackers, for instance, doing this just as a great way to sow chaos in the American political scene. Or, I think a more plausible version, again, depending on the InfoSec question could be, the roommate of a law clerk, who for some reason had access-- like it's in the downloads files or that kind of thing. I think all four of those have some things going for them, and some things cutting against them.
Dan: I think a lot of liberal people are pushing the, "This is actually a leak from the right," theory, and maybe I'm naïve. I'm a little bit more skeptical of that, because I just think that if you're somebody in the majority, I mean, first of all, ex-ante, it's far from clear that leaking it is going to have the effect that you want, that it's going to make Kavanaugh think, "Oh, gosh, I've got to go back to what I was going to do," if he's losing his nerve, far from clear. And I don't know, if you are close to the precipice of this huge major victory, this thing that they have been trying to get for decades, overturn Roe, it just seems you're going to be less willing to just introduce a bunch of big random shock into the process, because you have no idea what's going to happen. Whereas if you're upset about it, you're losing, maybe you think this in terms of is this going to put more attention on the process than the result? I mean, maybe briefly. When this finally comes down, I think that people in the public are not really going to give a shit about did somebody leaked this or not. They're going to be upset or happy about the actual substance. I don't know.
In terms of the liberal law clerk theory, there's some people who are in Twitter, very irresponsibly, like naming a particular person that they think it is. It's extremely irresponsible. It's arguably defamatory. It reminded me of the Ed Whelan, Zillow, Kavanaugh doppelganger theory, which was also probably defamatory. Part of that goes to my belief that maybe it isn't a liberal law clerk. There are 12 in the building. There's three liberal Justices, they each have four clerks. There's 12 people. And if you're one of those people, and you leak, you've got to think there's going to be 12 suspects. And at that point, they might be able to narrow it down to me, and however much you care about the substance, this is really going to be problem for you, in terms of your career, and might be a crime. Not clear that it is, probably isn't, but it could be.
At that point, for such a person, it's not clear what they stand to gain. Like, yes, leaking it, people are upset. Is this going to make a difference? Is it going to make the court suddenly change its mind? I don't know. I certainly don't know that any such person would be willing to take the risk for such a speculative benefit.
Will: Yeah. I agree with you that all the random Twitter defamation is irresponsible and implausible. It also just shows how little people understand this world. It's not a smoking gun that law clerks for liberal justices also worked for left wing organizations. It's not a smoking gun that many people are less than six degrees of separation from the reporters at Politico, because these are incredibly small elite networks. It's not a smoking gun that people signed letters saying that Brett Kavanaugh was a menace to society or whatever, because it's what most law students do. It seems totally misunderstands where the median left-wing law student is today. I will say, we can talk about this in a second, if the leaker is found, I'm not sure whether it's going to be the Supreme Court that finds them or some random vigilante that figures it out, it really is possible, that'll be the way. It happens.
Dan: That's interesting. How do you think a random person would figure it out?
Will: Well, I guess, it's possible one of these crazy conspiracy theories is true, either with left-wing ones or the right-wing ones, that are--
Dan: These random Twitter trolls are not going to be able to find any smoking gun evidence, I don't think.
Will: We'll get there, I'm just going to say it. But it's also not clear, like you started by saying, if you were left-wing leaker, you'd know there are only 12 suspects, but I think we know that's not right. It's already unclear whether the immediate suspects are the 12 suspects, the other--
Dan: Yeah. You would know that you are going to be the first 12 suspects, right?
Will: I'm not even sure it will be bad for the person's career. It'll complicate their career. There'll be a bunch of big law firms that don’t want to hire them. But I bet if--
Dan: There will be liberal boutiques that would--[crosstalk]
Will: If next week, one of the law clerks who leaked resigns and protests and publishes an op-ed in the New York Times on why they did what they did, I bet they can become a legal hero [crosstalk] culture.
Dan: That’s possible. Yeah. But I mean getting to the court, getting a Supreme Court clerkship requires a lot of long-term thinking, requires a lot of risk aversion. And there's a reason that this doesn't happen very much. So, I don't know. I tend more to think that maybe this was somebody in IT, some housekeeping, like some things where just someone just comes across this, and it's like, "Oh, wow. This is super interesting. Let me get this out there." But who knows? We may know, we may not know, the Chief Justice has launched an investigation, it's going to be led by the marshal.
Will: Yeah. This is one of my favorite facts about season 7 of this television show called Life. Do you remember when Trump was president, and there were all these theories that at some point, the secret Articles of Impeachment, are going to be referred to the Supreme Court marshal, who is finally going to take Trump into custody for, I don’t know what for--
Dan: Weren't there actually secret impeachment proceedings happening in the basement of Supreme Court or something?
Will: Right. There was some case pending, this case has been docketed, and that's a sign. So, finally, the marshal of the Supreme Court has emerged as an actual character in our drama.
Dan: Yes, that marshal was misspelled, with two L's. This is the actual marshal, who is going to enforce martial law by investigating.
Will: The Chief Justice issued a statement, which I thought was interesting at all, the courts wanted to do it. So, the court issued a press release, confirming that the document is authentic, but stressing that it does not represent a decision by the court or the final position of any member on the issues in the case. And that Chief Justice Roberts provides a statement for himself, saying, "To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way. We at the Court are blessed to have a workforce, permanent employees and law clerks alike, intensely loyal to the institution. This was the singular and egregious breach of that trust. I have directed the Marshal of the Court to launch an investigation into the source of the leak." That's the martial law.
I have a question about the first part before we talk about the investigation. And the other thought is that, on the outside, we have a lot of different theories based on speculation about, well, if Justice Kavanaugh's suddenly gone wobbly, then it makes sense for this to be a right-wing leak, or if the tensions are really high, it makes sense it's a left-wing leak. It's just worth noting that for the people in the building, the Justices and the clerks, they know much more than we do about the context. So, it might be obvious to them, frankly, which category it is. Maybe nobody's gone wobbly, [chuckles] and so the right-wing theory just makes no sense.
Dan: And Politico said the vote was still there, I think, as of a week ago, right? That's in their story.
Will: Yeah, although there was some-- I mean, that was a week ago. There are some different kinds of ambiguities, don't know exactly what that means.
Dan: Yeah. There's a fifth theory, like this one, I don't know really because it's silly, which is the Justice Stevens Memorial was on Monday, and that some like Stevens' clerk somehow found the draft in the trash and rushed it over to Politico. This one is extremely implausible. These events are not in chambers, Justice Stevens-- There is no Stevens chambers, people were just inside the public areas of the court. Also, that was on Monday afternoon. Politico would not have been able to get comfortable authenticating the story in two hours in publishing it. That one, I'm happy to rule out.
Will: I don’t know. Every time I try to arrange these theories in order from most to least plausible, I'm not satisfied with my arrangement. [unintelligible [00:35:01] list. I have some similarly irresponsible theories I'm not even going to share with our listeners.
Dan: I'll say, by way of background, I'm someone who's a little bit more pro court transparency than I think a lot of Supreme Court clerks are. I think it's fine, and it's good that clerks like 20 years after when their Justices are dead, just tell people what happened. There's a really strong public interest. I think that it's good for the public to basically know how we're being governed. I wrote an op-ed to that effect. I don't think it's great to have draft opinions come out in the middle of the drafting process. I think that would-- [crosstalk] Yeah, it would change the writing process, and change it in ways that I think are not necessarily good. It would cause people to lock in their positions, it would eliminate the possibility, I think, of compromise, which is important that there are cases where people really work together and they come to greater consensus, and they step away from the precipice of maybe really a big decision.
I had a brief Twitter exchange with our friend, Steve Sachs, about this. Just what I said was like, I can imagine a scenario where this would be the right thing to do. If the court was about to install a dictator or maybe if you're a cleric working during Korematsu and leaking the opinion can stop the Japanese internment or something.
Will: Frankfurter did leak Korematsu.
Dan: Did he?
Will: But it is the opposite. Yeah. So, to give Roosevelt the chance to close the camps first so he wouldn't be embarrassed by losing.
Dan: He didn’t. He won though.
Will: Yeah. Maybe it was Endo, maybe he leaked that, because Korematsu decide at the same time as some of the cases that. [crosstalk]
Dan: Okay. I'm just saying something like that, where that the court is about to perpetuate something irreversible, and leaking it will stop it from happening. And here, I don't see a clear story where leaking it has any benefit at all, even if you are strongly opposed to what the court is doing. I mean, maybe someone can tell me knowing more why that's wrong.
Will: I agree with the transparency point, first of all. One thing people often forget is that there's a tradeoff often between external transparency and internal transparency, a lesson I learned painfully on the Supreme Court commission last year. Right now, one thing that's shocking about clerking at the court is how transparent everything is internally. You know what the draft subpoenas look like, you can go look at all sorts of old things that aren't even mission relevant. All that stuff just circulates as a matter of course. If we end up in a world where this kind of thing happens a lot more, then I suspect it's going to be like more often the Justice will work on a draft and not let as many people see it. Maybe circulate it only to people who are on your team, you don't let the dissenter see it until it's ready to go.
Dan: And you don't have your clerks informally communicate, because that was the nice thing about clerking. A lot of it is just law clerk to law clerk, "Hey, what does your boss really want to do here? Can we come up with a way to make it work?" So, I think it gets a lot more closed down.
Will: Maybe you just write fewer opinions also. That's also just the norm, so you could just decide to announce results. If this becomes a thing, if this is not just a singular and egregious breach of the trust as chief says, it could really make the court a less transparent place internally. And that has costs and consequences for our functions.
Dan: Yeah. I am curious though, if it's going to be stopped from happening, how is the marshal going to get to the bottom of this?
Will: Yeah. I have many questions about this, and people have pointed out, already raised this question. The martial law of the court, much of their job is running and administering the building, and making sure people don't sneak in cameras or weapons into the courtroom and stuff. There's a law enforcement component to it, but they don't normally investigate and like-- [crosstalk]
Dan: Yeah. Although they certainly supervise the Supreme Court police, but yeah, it's not the FBI.
Will: They're not solving-- there aren't cold cases or murders that the Supreme Court police have to solve.
Dan: We just came up with a great idea for a procedural TV show.
Will: The Supreme Court Police?
Dan: Actually, I think that we should call it Martial Law, right?
Will: [laughs]
Dan: This is a great-- can we copyright that? Every week, the scrappy Supreme Court Marshal who's a former Navy SEAL solves a new Supreme Court related mystery.
Will: Yeah.
Dan: That'd be a smash hit.
Will: [laughs] I want to get a full season out of that. It might be a more of miniseries kind of thing. So, now that said, as I understand it, the Supreme Court police do also have liaisons in some other departments. So, there's a lot of ambiguity here. The investigation could include calling in the FBI liaison. Just some basic questions I really wonder about. Obviously, there's a tech aspect to this question of, is the Supreme Court going to turn over its computer system to some people with serious computer forensics skills or not? Or, even just-- I mean, so anything with this, is somebody going to go around and ask every law clerk, either under oath or under penalty of false statement over 1001, order a polygraph, or some combination of the three, did you do it? Do you think that's going to happen? Would Justice--[crosstalk]
Dan: I don’t think the polygraph is going to happen. It's hard for me to imagine Justice Sotomayor is going to let them polygraph her clerks just as a matter of principle. But I think there may be interviews. And this is a point I made on Twitter, and that you just alluded to, which is that even if the leak itself is not a crime, and it's far from clear that it is, that this isn't classified information and just generally leaking stuff that's supposed to be secret, but isn't formally classified, is typically not a crime. [unintelligible 00:41:20] had a thread about this. There's some possible statutory hook, but it's far from clear. Even if that's not a crime, if you get the FBI involved, you get people being asked in these ways, lying about it would be a crime--[crosstalk]
Will: It will be crime under 18 U.S.C. § 1001?
Dan: Yeah.
Will: [crosstalk]
Dan: There's a couple overlapping things. But yeah, that would be the most obvious one.
Will: But that has to be material to something. So, the theory of materiality would be the court has the power to decide whether to fire or discipline an employee. And so, if you lie to the court about that fact, that's a crime, that’s the theory.
Dan: Yeah. So, it has to be material to a matter within the jurisdiction of the judicial branch.
Will: Right. I guess the question is, does jurisdiction of the judicial branch only include deciding cases? Does that include personnel questions? [crosstalk]
Dan: It seems it should have to. But yeah, maybe it doesn't. And so, are the clerks going to be required to consent to these interviews? [crosstalk]
Will: Well, if you're a Justice, do you require your clerks to consent to the interview? Do you let them have a lawyer? Encourage them to lawyer up? What if it's one of the clerks has already been attacked by the right-wing Twitter mob? Do you just say, like, "Sorry, I--?" [crosstalk]
Dan: If I were that person, I would just say, "Look, I'm not going to do this. People are accusing me of this stuff."
Will: Yeah. And would you expect to keep your job, if you did that?
Dan: I don't know. Someone sent me this case on Twitter, which said, like-- I don't have the case set in front of me. But like, "If you're a public employee and you're threatened with loss of your job if you don't consent to an interview, then that will be treated as coercion, and so it can't be used against you for subsequent criminal prosecution."
Will: Yeah. Although they could do immunity grants. I mean, if they wanted to, they could give, and then--
Dan: Use and derivative use immunity.
Will: Right. They say, "Look, we're not going to fire you. [chuckles] But we're not going to prosecute you for what you say."
Dan: Yeah. But I don't even think they need to do that upfront. I think the point is just that they'd say, "We're going to fire you and if you don't do it, it's not going to--" Yes. Under case law, it can't be used against you. If you do it, it can't be used against you but you lose your job. My guess is that certainly what the chief justice is going to want to do, I just cannot imagine how livid he must be for someone who cares a lot about the institution. I remember when I was clerking, there's this orientation for law clerks, and he would always show up to that and tell some cheesy story about how like, "When I was a clerk, I remember another clerk accidentally said something to their roommate, and that person found out about it, so you've got to be really--" I don't remember the details, but some story meant to impress upon you, it's really important to keep all this stuff secret.
Will: I agree. I'm sure he's livid. But I also think he's got to be aware that depending on how you handle it, the investigation itself could tear the court apart [crosstalk] leak.
Dan: Yeah.
Will: I've got to assume actually, he and the Justices are going to talk about collectively what they're okay with this investigation. Like, are they okay with collectively making their clerks answer questions, and if they're not, I bet they won't. And I was struck by his statement, which is very protective of the court staff. His public statement is about how loyal-- Simultaneously, it seems to imply, he thinks the leak is from inside the building because he talks about it being a breach of the trust of the court, which wouldn't be true if somebody found [crosstalk] theory.
Dan: The trash theory.
Will: Yeah, or the hackers, but at the same time, it's very productive. And you've, of course, got to know that launching a witch hunt inside the building is essentially---[crosstalk]
Dan: Yeah. It's going to be a weird time to be working at the court, I think, for the next couple of months. We're at a time, and I'm sure tensions are already unbelievably high. What it's like to be a clerk at the court, I think, changes a lot, depending on the term and how divisive some of the cases are, and there's terms involving abortion cases that have been described as just incredibly fraught with the liberal clerks and conservative clerks borderline getting into fistfights. And there's other terms, like my term we had some stuff that people cared about, but nothing quite in that order. Everybody got along. This is going to amp up go-- if tensions were at 11, now they're at like 14. Which is not to say that's the most important thing, that a lot more people are affected by this or not, Supreme Court law clerks who have to deal with some discomfort at their job, but just saying.
Will: So many thoughts still. I will say, though, I understand the narrative of the leak is not the most important thing, the decision is the most important thing, etc. This is how norms get destroyed as people decide in some particular case, maybe correctly, that, of course, the object level question is just so much more important than procedure level questions, so screw the procedure. This is how norms get destroyed. And maybe that's just because norms actually just don't matter very much compared to the substance. But I feel this is an important moment for the [crosstalk] thing.
Dan: Yeah. It's easy to believe this won't be the last time this happens once this floodgate is opened. They may make it harder, they may come with a very OpSec-- [crosstalk]
Will: Then, it becomes harder to print opinions. I bet you, either you have to do everything on an iPad, or you printed on a special computer that watermarks it or something.
Dan: Yeah.
Will: Maybe they're going to be searches of your bag when you walk out of the building.
Dan: That'd be crazy.
Will: Yeah. Can I ask just a couple more procedural questions that people will expect us to know the answers to?
Dan: Yeah.
Will: Who has the power to fire a law clerk? Do you know if is it the--? [crosstalk]
Dan: In terms of de facto versus de jure, I believe that Chief Justice has the de jure power to do that. Technically, law clerks are under the supervision--
Will: Court employees ultimately.
Dan: Yeah.
Will: If the chief wanted to say everybody has to submit to an uncounseled interview with the Supreme Court Police, or you're fired, de jure or Justice couldn't stop that, is that the theory?
Dan: I believe that to be the case, but in practical terms, there's no way that you could do that.
Will: Right.
Dan: Ultimately, the other Justices would just say, "I get to pick my own staff. You don't get to--" [crosstalk]
Will: Right. Some of the consequences, the public dissent would just be so devastating. What about if it's not a law clerk? I don't think it's true, but there are theories that the leak could be a Justice or could be family of a Justice, things like that?
Dan: We probably both believe that Justices do leak sometimes, not necessarily this way, but they talk to reporters.
Will: Sure, yes.
Dan: There was reason to think maybe Justice Ginsburg was being little chatty with some reporters. But yeah, if it's a Justice, what?
Will: What do you think the court does? Suppose you launch an investigation, I suppose it's very quickly clear, either they admit it or just it's very clear that the leaker was a justice. Is there anything-
Dan: No.
Will: -the rest of the court can do about that? Would they even--
Dan: No, they have no power.
Will: Do they publicly admonish that person or would that be so embarrassing that they would just pretend that they didn’t know?
Dan: I think they would hush it up, yeah, because there's nothing you can do about it. It's not clear to me that at all that this is even remotely impeachable. Even if it were, there's not going to be super majority support in Congress, in the Senate to remove such a person, either it's a conservative justice or it's liberal justice. I cannot imagine they're going to raise some--
Will: Are those in the choices? Like on the lower courts, sometimes judges discipline other judges. Like a bankruptcy judge gets caught doing something shady, the Seventh Circuit Judicial Council will remove referring cases for a while.
Dan: Yeah. The bank bankruptcy judges are not Article III judges.
Will: Even if a district-- I think this even happens with district judges.
Dan: Yeah, but there isn't a higher court. that has some even arguable supervisory power to do that. I don't know. It'd be unprecedented territory, at least if the other Justices were to say like, "We're not letting Justice whoever--"
Will: Kind of, so I know of two. There's a case about this from the Tenth Circuit Judicial Council, Chandler from the Warren Court, Burger Court era, where the Tenth Circuit removed some district judge from hearing cases, and Justice Black and Justice Douglas dissented that this was an Article III violation, and there was a whole back and forth. And then there was this related incident that I don't think ever formally happened, but I think it's pretty well sourced that when Justice-- in the last portion of Justice Douglas' career, after he had a stroke, and had initially planned to resign, but then decided not to, but some critical mass of the other Justices got together and agreed not to issue any decisions, in which his was the dispositive vote.
Dan: Yeah.
Will: Just either hold them until he left or--
Dan: Yeah.
Will: I think some of the Justices then dissented from that and said it was a violation of Article III. So, you can imagine--
Dan: You can imagine though, because it's more like them saying, like, "Well, I'm not going to sign off on anything while he's--"
Will: You could refuse to circulate opinions to the-- If there's a Justice is just [crosstalk] you can say, "You're cut out. [chuckles] You can vote, but--" [crosstalk]
Dan: I don’t know if you can bar them from the courtroom though and say, like, "You're not allowed to hear these cases." That strikes me as--
Will: Wouldn’t that be the Supreme Court Marshal who decide?
Dan: No, I can't. I don't think the Supreme Court Marshal has the power to physically bar a Justice of the Supreme Court of United States from entering the courtroom.
Will: Even if the other eight say, "Don’t let them in?"
Dan: Well, that's interesting. It makes you think about the Sergeant of Arms and Congress who is allowed to arrest members of. Yeah, I don't know. We'll see.
Will: It'd be very destructive to the court to get on this at all--[crosstalk]
Dan: Yeah. I cannot imagine that even if one of them is like, "Oh, yeah, that was me," it's going to happen." But I don't know if a justice would do it in this way. I think they might talk to a reporter, but I don't know whether they would actually just print the opinion. But some other weird stuff, this is the first circulated opinion dated February. Why is this the one that gets leaked? There may well have been-- it's possible they haven't been circulated, and maybe that's possible. It's May now, but maybe there has been subsequent revisions to the opinion. Usually, people write dissents and other people revise, there's a lot of back and forth. Why is the February opinion getting leaked in May? Unclear. Some people say, "Well, maybe that gives more credence to that this was not an insider, or at least not a law clerk who would had access to whatever the most current one was, although maybe someone deliberately does that in order to cast some doubt.
Will: Yeah, I agree. And this is another example of, people in the building obviously know whether this is the current draft or not, we don't know. We're assuming it's not, but who knows?
Dan: Yeah. This is a place where just some little leaks would actually be quite helpful. If someone were to say, like, "Yeah, there's been four other drafts since then." But there's also weird stuff could be happening. It wouldn't have surprised me if someone had said, "In this case, Justice Alito did not circulate his majority opinion until the other four conservatives had signed off on it." Sometimes weird stuff like that happens where people keep things close.
Will: It is true, this opinion has a number of features in it that are designed, it seems like, to help get other Justices on board. People have remarked there's some callouts to some points that Justice Barrett made during oral argument are specifically highlighted in the opinion, there's a--[crosstalk]
Dan: Yeah, isn't there a cite to Justice Gorsuch's book?
Will: There's a cite to Justice Gorsuch's book, hopefully if you can keep it. There's a long footnote listing all of the times the Supreme Court overruled precedent that libs like, which is similar to a list that Justice Kavanaugh in occurring opinion a couple years ago in Ramos v. Louisiana. Now, again, you might just put those things in an opinion. [crosstalk]
Dan: And in his oral argument question.
Will: Yeah, exactly. It's notable the way it's written, if you told me this was the final draft, I'd say like, "Oh, yeah, checks out." There's a couple of typos but.
Dan: And there's no references to other opinions, so this is presumably the first thing circulated. That's normally how it works, majority gets circulated other people write their concurrences, dissents, whatever, and then those references get incorporated.
Will: Yeah.
Dan: So, very mysterious. And then the question is how much of the public debate is going to be about the kind of process part which, I think, conservatives prefer because the substance-- I think it's fair to say the substance is not popular in terms of majority support in the United States. Now, it's very popular in some states, right?
Will: I'm not sure if that's true, but I feel--[crosstalk]
Dan: I don’t know. Some polls, you see 60%, 70% support for Roe.
Will: Yes, but if you then ask questions like, "Do you support a constitution--?" If you ask specific questions, you often get a majority that clearly supports a right to abortion in cases of rape, incest, serious health risks to the mother.
Dan: Maybe very early in pregnancy. A lot of opposition to late term. For what it's worth, the original Roe opinion, which has a trimester framework, probably captures where a lot of the public is, where the median sentiment might be.
Will: Yeah. It's funny also, if we had more healthy politics, it's not that hard to imagine Congress passing a statute that's a compromise statute that both protects the right to abortion in the cases of where it's really popular and bans abortion in the cases where it's unpopular, and then some wiggle room with cases where people are split. There's no rational reasoning that couldn't be a voice vote in both houses, except that the politics is such that nobody would go and do that.
Dan: Yeah. And now if even Democrats were able to push through a bill protecting abortion, I think it's very plausible that that would be struck down by the conservative majority, as beyond Congress' enumerated powers may be.
Will: It'd interesting. My guess is that they could pick up-- if you assume that there are-- I guess that it would be upheld, but it would not be---
Dan: Yeah. The Supreme Court never struck down the Congress' ban on late term abortions. They never struck it down on enumerated powers grounds.
Will: Right. My understanding is that there was a strategic decision not to bring that challenge to the court even if Justice Thomas signaled that he would be happy to strike it down, and his vote plus the other four dissenters would have been enough to win a subsequent case. My understanding is there was a decision that the left hates federalism, and so it's not.
Dan: Interesting. Maybe we get to keep talking about this for a long time, but I don't know if we've hit the big points.
Will: Marginal returns.
Dan: Yeah.
Will: Yeah. I suspect we'll learn more. I suspect, within two weeks, there'll be some sort of leak about the investigation. Either that there isn't much of one or that people are being held in the Supreme Court dungeon until they agree to confess.
Dan: [chuckles] Yeah. We will probably circle back and say more about the underlying constitutional question and the merits of the case when we actually have the decision, right?
Will: Yeah.
Dan: Right now, we know this decision reflects initial tentative views of one person. Nobody has joined it yet. Based on the document, nobody else had joined yet and yet had to respond to concurrences and dissents, and so I think that will be the moment to really dig into it. But for now, obviously, this is a hugely consequential change to American law, and I think, to American life in one sense, and it's going to have very profound implications. It's going to change the state of play in a bunch of states, which are geared up to completely ban abortion, it's going to affect a lot of people's lives. It will affect our politics in some profound way, though exactly how remains to be seen.
Will: Yeah, that's right.
Dan: We had some other cases we wanted to talk about, but I think we had enough to say here that maybe we'll postpone that. But I, at least, am a little bit freer now, and so hopefully, we can circle back and catch up on some other opinions in an episode that will be, hopefully, sooner than a month.
Will: I hope so, because one of them cited me, Dan, and you managed to-
Dan: [crosstalk]
Will: [crosstalk] -all our time. So, I didn't even get to brag about that.
Dan: Yeah. Well, I'm sure you will find an opportunity to do so. And you just did, by the way. But now you'll get two.
Will: There you go.
Dan: Thanks very much for listening. And thanks very much for tolerating our long delays between episodes. Please check out our website dividedargument.com. You will find transcripts of our episodes within usually a couple of days after the episodes are released. Go to store.dividedargument.com, and you will find merchandise. Please rate and review us on the Apple Podcasts or wherever you get your podcasts, send it to people. Again, we've been doing this for about a year, but we're still in the growth phase. I think there's a lot more people who would be interested in listening and have not yet discovered the show. So, anything you can do to help along those grounds would be great. You can call, leave us a voicemail at 314-649-3790. And you can send us an email at pod@dividedargument.com. We don't do a great job of responding to those, but we do manage to work some of them into the show here and there.
Will: Thanks for the Constitutional Law Institute for sponsoring our endeavors. And if we don't record another episode when we promised, it's because we are being held in the Supreme Court dungeon under martial law.
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