US Supreme Court Discussions

[Voronwë the Faithful]

It all reflects poorly on Roberts; after making such a big deal about investigating the Dobbs leak, it seems that he sat on this letter for months without doing anything about it.

[N.E. Brigand]

Supreme Court Counsel Says No Evidence of Alito Ethical Lapse in 2014 Case

In a letter to two Democratic lawmakers, Supreme Court Legal Counsel Ethan Torrey repeated [Justice Samuel] Alito’s statement that neither he nor his wife disclosed the outcome of the case or his authorship of the opinion. Torrey wrote that justices are allowed to maintain normal friendships.

“There is nothing to suggest that Justice Alito’s actions violated ethics standards,” Torrey wrote to Senator Sheldon Whitehouse of Rhode Island and Representative Hank Johnson of Georgia. The two had written to the court the day after the Times story.

Without having seen Torrey's full letter, I can't say for sure, but if that reporting on it is accurate, then his response seems misleading. There absolutely is something in the Times story to suggest that Alito violated ethical standards: the statement of Rob Schenck, an evangelical pastor, that a conservative activist named Gayle Wright provided him advance notice of the outcome of the 2014 Hobby Lobby decision (which he then shared with the CEO of that company) following a dinner she attended with the Alitos. Schenck may be lying, and thus his claim could be false evidence, but it certainly is not "nothing."

[Voronwë the Faithful]

Today's oral argument.

Colorado web designer’s First Amendment challenge will test the scope of state anti-discrimination laws

The Supreme Court on Monday will revisit a long-simmering tension between legal protections for LGBTQ people and the rights of business owners who oppose same-sex marriage. The case, 303 Creative v. Elenis, is a challenge by a Colorado website designer to a state law that bars businesses that are open to the public from discriminating against gay people or announcing their intent to do so. The designer, Lorie Smith, argues that subjecting her to the law would violate her right to free speech. Colorado counters that exempting Smith from the law would open a Pandora’s box that would “upend antidiscrimination law – and other laws too.”

[RoseMorninStar]

If a business is open to the public that public 'concerns people as a whole' by definition. There are not sub-classes of people.

As for the reasoning of 'I can't/won't do it because of my religion/my religious freedom', they are not being asked to: marry someone not of their choosing/gender of their choosing, not being asked to drink alcohol, not being asked to use birth control, they are doing their job serving the public. If they can't handle that.. then they need to be in an occupation where they do not put themselves in that position. IMO, of course.

[N.E. Brigand]

Despite some reports to the contrary, apparently it was Justice Kagan not Justice Alito who raised the hypothetical situation of Black children wearing KKK outfits.

[Voronwë the Faithful]

This is a good summary of the likely bottom line of the oral argument in Moore v. Harper, the independent state legislature theory case.

[Voronwë the Faithful]

This is a long somewhat slanted but still helpful article about yesterday's oral argument.

Oral Argument in Moore v. Harper and the Perils of Finding “Compromise” on the Independent State Legislature Theory

[N.E. Brigand]

Apparently the investigation into who leaked the Dobbs draft opinion is still underway, and the list of suspected leakers includes "at least one law clerk." That article doesn't say whether (1) any justices are among the suspects or (2) whether the investigation is limited strictly to the leak that led to Politico publishing the draft on May 2nd or also includes the earlier leaks about the behind-the-scenes SCOTUS deliberation on this case to the Wall Street Journal or the later leaks about this case to CNN and explicitly by three self-described "conservatives close to the Court" to the Washington Post.

- - - - - - - - - -
Also looking back at earlier posts here about the leaks, I noticed this, to which I have now added some boldface:

Whoever leaked it, I'm glad and would welcome more Supreme Court leaks. (Some interesting history on past leaks here and here.)

Also the outrage from Republicans about the leak is hilarious (per Matt Walsh, the "leak is an an actual insurrection"; Matt Schlapp says that when Republicans again control Congress, there should be "impeachment implications ... for potential violation of a Justice's oath," and Ben Shapiro feels the leak is intended "to create threat to the life and limb of any justice who signs onto the majority opinion" and deserves "prosecution to the full extent of the law") and, as The Daily Show notes, ironic [given that conservatives frequently claim there is no right to privacy.].

[N.E. Brigand]

The report on the leak of the Dobbs decision has been released. They were unable to identify the leaker.

[N.E. Brigand]

LOL at the report's opening claim that leaking a draft opnion was "a grave assault on the judicial process."

No it wasn't, no more than leaks of draft presidential orders or drafts of Congressional bills are grave assaults on the executive or legislative process.

The Supreme Court needs to get over itself.

[N.E. Brigand]

I've read the full report. To all appearances, the Marshall of the Supreme Court and his team never even investigated the nine likeliest suspects.

The report never describes the justices themselves being interviewed or investigated. While you might think that references to "Court employees" could be understood to included the justices, that report doesn't make that explicit, and I'm inclined to doubt it. There are multiple references to "clerks." There are references to Court employees having signed non-disclosure agreements at the start of employment and affidavits during this investigation -- did the justices also do so? It's noted that employees were warned that failure to comply could lead to "disciplinary action including dismissal" -- but there's no way to discipline a justice other than impeachment. And while the investigators apparently did follow leads about possible leakers deriving from speculation posted on the internet, the report says that "several law clerks" had been mentioned by name online but says nothing about the justices -- and we all know there was plenty of speculation about them.

So while the report does say that some of those interviewed admitted to telling their spouses about the decision in advance, I really doubt that means Ginni Thomas, even though I think it's highly likely her husband told her what was coming. And when investigators considered "whether personnel may have had reason to disclose the Court's draft decision for strategic reasons," it seems like they didn't consider who would likely benefit from the very obvious strategic reasons we discussed here.

Finally, the investigation never mentions the other three leaks about this case, only the leak of the draft to Politico. So the whole thing reads like a whitewash.

I tip my hat to Politico for properly scrubbing the version of the draft opinion that they posted of any evidence that might help investigators identify its source.

[N.E. Brigand]

But Donald Trump says the Politico reporter who published the leak should be jailed until he reveals his source.

[N.E. Brigand]

The Marshal of the Supreme Court says that while the justices weren't asked to sign affidavits, she did in fact speak with all of them in the course of her investigation, adding, "I followed up on all credible leads, none of which implicated the justices or their spouses."

I'm sure she's telling the truth. Still, it's weird that the report is unclear about this matter and than it took 24 hours for the Court to respond to the questions that were obviously going to be raised about that seeming omission in the report. As Mark Joseph Stern says at the link, the affidavits were a tool to compel truthful responses, so it's awfully convenient that the likeliest suspects didn't have to sign them.

Edited to add: as noted here, today's statement confirms that the terms "employees" and "personnel" in the report do not include the justices.

[Voronwë the Faithful]

There is absolutely no reason to believe that the justices are "the likeliest suspects."

[N.E. Brigand]

One reason I've long thought the leaker was likeliest to be a justice is that they alone cannot be punished for leaking.

[Voronwë the Faithful]

Here's one for N.E.B.

[N.E. Brigand]

The Marshal of the Supreme Court says that while the justices weren't asked to sign affidavits, she did in fact speak with all of them in the course of her investigation, adding, "I followed up on all credible leads, none of which implicated the justices or their spouses."

I'm sure she's telling the truth. Still, it's weird that the report is unclear about this matter and than it took 24 hours for the Court to respond to the questions that were obviously going to be raised about that seeming omission in the report. As Mark Joseph Stern says at the link, the affidavits were a tool to compel truthful responses, so it's awfully convenient that the likeliest suspects didn't have to sign them.

Edited to add: as noted here, today's statement confirms that the terms "employees" and "personnel" in the report do not include the justices.

CNN reports today that Supreme Court justices have long used personal email for "sensitive transmissions instead of secure servers set up to guard such information, among other security lapses not made public in the court’s report on the investigation last month." The Court wouldn't tell CNN whether or not those email accounts were examined in the leak investigation.

Also, you may recall that the investigation report was prefaced with an endorsement by Michael Chertoff, the former Director of Homeland Security. Last week we learned that Chertoff has been paid $1 million by the Supreme Court for other consulting work, and that hadn't been previously disclosed.

[Voronwë the Faithful]

[River]

I'm not allowed to accept gifts that valuable and I'm a nobody salaried employee in the private sector. Why am I held to a higher standard than a Supreme Court Justice??

[RoseMorninStar]

Very good question River.