SCOTUS Is Wrecking The Societal Safety Net

The right-wing wrecking crew on SCOTUS is destroying the safety and security that make it possible to live in our society. They oppose governmental power when it’s used to protect us from guns and disease, and they strike at rights people need to participate fully in our complex capitalist society.

The Constitution doesn’t give SCOTUS the power to make these decisions. An earlier version of SCOTUS arrogated the power of judicial review to itself. Whereas the other branches have to justify their exercise of power by reference to the Constitution, SCOTUS justifies its power by pointing to an ancient precedent set by itself. For a discussion of this history and a defense of judicial review, see this article by Erwin Chemerinsky in The American Prospect.

To defuse protest against this power grab, for a long time SCOTUS exercised its power sparingly, and only in egregious cases. Perhaps the first instance of overreach was Dred Scott, which was reversed by the Civil War and the Reconstruction Amendments.

When SCOTUS got out of control in the 1930s, striking down New Deal legislation repeatedly, the other branches took aggressive action to protect their Constitutional powers.

In the 1970s conservatives and radicals rebelled against the Civil Rights cases and other changes wrought by the Warren and Burger Courts. In response, Republicans stacked SCOTUS with right-wing ideologues who have now run amok.

When I say “run amok”, I mean that all of the important decisions of the six SCOTUS right-wingers ignore the interests we all share in living in a safe and secure environment. It’s as if they believe that, as Margaret Thatcher put it, there is no such thing as society. Worse, the individuals affected by the outcomes are never heard, and the decisions only recognize the interests of a tiny minority. This post is focused on gun cases, but there are others equally vile.

New York State Rifle And Pistol Ass’n. Inc. v. Bruen holds that no restriction on the ownership of guns is Constitutional unless “… it is consistent with the Nation’s historical tradition of firearm regulation.” The Holy Six bluntly tell us we can’t protect ourselves from the climate of fear created by today’s weaponry.

In US v. Perez-Gallan, the defendant was charged with carrying a gun while subject to two court orders barring such possession. The District Judge, David Counts, held that there weren’t laws barring people subject to domestic abuse protective orders from having guns in 1792; therefore that can’t be Constitutional today.

In Cargill v. Garland, the 5th Circuit en banc ruled 13–3 to invalidate an ATF regulation banning bump stocks. It claims that a firearm equipped with a bump stock is not a machine gun within the statutory definition, so the ATF regulation banning them is not within its statutory power. There’s a conflict among the Circuits, so the SCOTUS death panel has the opportunity to promote murder by machine-gun equivalents.

It’s worth noting that John Roberts demands governmental protection for all these judges to insulate them from the dangers they create.

None of the endangered parties are before these courts. Perez-Gallan’s ex-wife isn’t there. In the bump-stock case none of the people murdered in Las Vegas are there, nor are their families and friends, or the people who ran or cowered in fear. None of us normal people from Chicago testified about the impact of guns on our lives after months of deadly violence, car-jackings, road-rage shootings, and mass killings like the attack on the Highland Park Fourth Of July Parade.

So who was present? Well, in Bruen the Appellants are the New York State Rifle and Pistol Assn, and a couple of losers who don’t qualify for a concealed carry permit under New York law. In Cargill, the Appellant is a gun nut who turned in several bump stocks and then sued. Perez-Gallan is a truck driver who is subject to a domestic abuse protective order from Kentucky barring him from gun ownership and a separate order barring possession of guns while released on an assault charge. In each case, the opposing parties are government officials.

In other words, murder-neutral courts make these decisions in a bubble, where the only parties are government officials and gun fanatics.

Now I’m sure that the defenders of these laws and their lawyers are dedicated, hard-working, and skilled. But that’s not the issue. The issue is that courts are free to decide societal questions without regard to the specific tangible concerns of the people whose lives are at stake in these cases. After Bruen, the interests of normal people are irrelevant. Only the interests of gun fanatics are relevant. Courts, parties, and lawyers don’t have to look at the coffins of the dead, or the scars of the damaged. They don’t have to consider the psychological impact of shattered bodies on the families of the dead and wounded. They are instructed to ignore the consequences of their decisions. They pretend it’s all just words in a game of legal Scrabble.

They can also ignore the purposes of the Constitution, set out in the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

These decisions don’t insure domestic tranquility, they don’t promote the general welfare, and they don’t secure the blessings of liberty for the vast majority.

Instead, they insure domestic violence and homicide. They insure that none of us can go to a Church, a grocery store, a concert, or a Fourth of July parade without fear of being shot. They endanger the lives and liberty of every last one of us.
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Photo by Arvell Dorsey Jr. via Flickr.

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67 replies
  1. John B. says:

    You are exactly right, Mr. Walker. “Legal scrabble” is a perfect description of their bloodless decisions.

  2. P J Evans says:

    They’ll never need to uses it, so it’s fine with them.

    I’d like SS and Medicare to do all of the non-civil service parts of government, top to bottom, so that they can learn what it’s like to actually be a worker.

  3. JAFO_NAL says:

    Until recently federal funds were not allowed to be used to research gun violence (https://www.hsph.harvard.edu/news/hsph-in-the-news/experts-welcome-new-federal-funding-for-gun-research/). Since that obstacle to presenting the data was removed, stacking the courts was apparently the next bulwark against the gun control measures the majority of US voters are in favor of. Hopefully with Mitch McConnell no longer as the Senate majority leader not as many bricks will be added to that wall.

  4. rbba says:

    How can we have a cohesive country when the three evil forces are diliberate roadblocks? There’s curly fingers trump, filanges of both hand overtly displaying revolt; the supremes telling everyone how to live; and the monied power brokers who control for their own advantage. How can evil triumph so much in an ‘advanced society’?

  5. e.a.foster says:

    Good read How true. the “justices” don’t have to deal with the reality of life and their decisions. The justices all have protection. Given so many Republicans want to make budget cuts, they could start there, removing security from the judges. Teachers are a very valuable commodity everywhere. However, they are shot fairly regulary in the U.S.A. Do they receive “security”? Not so much that I’ve seen. One was shot by a 6 yr old child. Not only are american teachers not that well paid, but their job is dangerous. The supreme court isn’t making it any safer for them or a lot of other people. People have the right to life and these gun advocates/nuts are denying them that right.

    The American Supreme court is destroying lives. They have ruled women can’t have control over their own bodies. and americans critize the taliban. Well what is the difference between banning abortions or banning women from education?

    In civilized societies intrepretations of “the law” tend to grow, they do not remain static. In the U.S.A. we have a bunch of people who seem to think its still the 1700s or if its 2023 they need to send American society back to the days of wild west or whatever it was when people walked around with guns, like in westerns. (again reminds me of the taliban turning hands of time backwards)

    Perhaps it is time that these supreme court hearings were opened ot the public. like really opened, not just opened to those with connections to get in. Let those who were “wronged” be permitted to make victim impact statements. Its about time these people were put in an E.R. some saturday night and forced to observe what goes on, the dead, the injured, the mangled, the survivors, the families of the dead. Most of all perhaps its time to give all prospective judges a pyschological test to ensure they aren’t pyscopaths.

    the news today reported there are some American police officers who say they will not uphold the law concerning some new gun laws. So when do they get to make those decisions? If they can do that,
    then perhaps its time teachers refused to teach unless gun laws are changed.

    As the American Supreme Court destroys the country, perhaps its time to change things before the U.S.A. becomes more dangerous than the middle of a cartel shoot out. I’m sure if one of the Justices’ children were shot and killed in school, they’d be singing another tune.

    In Canada we retire Supreme Court Justices at 75. Also the Justices on the Court must come from various parts of the country ie. Quebec always gets three of the positions. the Atlantic provinces one. It keeps it balanced.

    As the U.S.A. becomes a more dangerous country without social programs, at some point people will ask, how did we get here. Hope some one hands them a copy of this article.

  6. Franktoo says:

    Ed: In our country try, we have higher law – a Constitution approved by all 13 original states and amended by a 2/3rds vote in each House and 3/4ths of the states – and ordinary law – passed by a majority in each House and signed by the President – and administrative law made by agencies operating within the scope of power granted to them by Congress. When lower forms of law conflict with the Constitution, we desperately need a Supreme Court to resolve them. Here is why:

    Within a decade of adopting the Constitution and the Bill of Rights, a Congress fearing war passed the Alien and Sedition Acts that allowed the President to deport or detain without trial any non-citizen he believed was dangerous and imprison anyone who made false or malicious statements about the government. History proves that we can’t trust a popularly elected legislature to protect our rights. We desperately need a CREDIBLE Supreme Court to protect minorities from the tyranny of the majority. IMO, FDR’s attempt to pack the Supreme Court was the ultimate example of the tyranny of the majority at work, whether or not the Court correctly interpreted the Constitution when finding New Deal legislation unconstitutional. In three key cases, the decisions were 9-0. Below is a link to a summary of key rulings, about half of which found New Deal legislation constitutional before the threat of court packing emerged in 1937.

    https://web.archive.org/web/20110720120721/http://calvert.wustl.edu/PolSci3103.fall04/newdealcases.html

    The preamble to the Constitution sets forth the goals of the Constitution, but it never would have been approved without a Bill of Rights limiting what the government could do in pursuit of those goals.

    • Ed Walker says:

      The Constitution distributes power to three branches. What is to be done when one intrudes on the powers of the other? Especially when one arrogates to itself the power to have the final word, and that branch intrudes on the powers of the other two?

      How can we govern ourselves when one branch tells us we can’t?

    • Bill Crowder says:

      What happens when the Supreme Court is not CREDIBLE? That, to me, is where we are now. Business as usual is sending us as a people down a fearful path.

      I am not advocating actions outside the Constitution. God knows there is enough of that going on from the Republicans. But, two branches of the government exercising their powers that fall within the Constitution, such as FDR’s/Congress’ threats to change the number of Supreme Court Justices in the 30s, was a legitimate exercise of power.

    • Snowdog of the North says:

      The Constitution was adopted in 1789 without a Bill of Rights. That came later in 1791.

      I would agree that you need some kind of independent arbiter to decide what actions of the Legislative and Executive branches are Constitutional. Otherwise, you are left with the situation as it was prior to Marbury v. Madison in 1803, when each branch decided whether its own actions were or were not Constitutional. In the case of a disagreement between the Executive and Legislative branches, you are left with chaos, not knowing what is and is not the law.

      The problem is that there are no limits prescribed on this power of the Judicial branch to determine what the Constitution says, and the document is very difficult to change. Basically, the only restraint is the personal integrity of the members of the Supreme Court and their willingness to abide by norms. When you get a majority of unscrupulous individuals on the Court (willing to adopt a silly and intellectually dishonest “doctrine” like “originalism”), this is what happens.

      • rbba says:

        Good comment. Our system requires good people but then along came the acceptance of money and politics, never to be the same. Or never to be sane.

  7. Franktoo says:

    Ed wrote: “New York State Rifle And Pistol Ass’n. Inc. v. Bruen holds that no restriction on the ownership of guns is Constitutional unless “… it is consistent with the Nation’s historical tradition of firearm regulation.” The Holy Six bluntly tell us we can’t protect ourselves from the climate of fear created by today’s weaponry.”

    However, if one reads further in the decision about the historical tradition of firearm regulation, Justice Thomas says: “The statutes [from the founding era] essentially prohibited bearing arms in a way that spread “fear” or “terror” among the people, including by carrying of “dangerous and unusual weapons.” So there is some hope that the Supreme Court will approve laws that limit the “climate of fear” we BOTH feel at the prospect of an unlimited right to carry a hand gun – say on a college campus full of drunk students or at a demonstration where people are exercising their right to petition the government. Thomas says “courts can use analogies to “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” to determine whether modern regulations are constitutionally permissible.” That history also includes this statement: “Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate.” The majority opinion dubiously dismisses this history by saying those historic restrictions are not analogous the NY’s [now unconstitutional] “restrictive licensing regime”, but it may permit other licensing regimes (especially if armed populists continue demonstrating outside the homes of Justices).

    FWIW, I’m not convinced that the Constitution contains a right to self-defense with a hand gun even in the home (outside a well-regulated militia). I’m currently happy relying on the police and can’t conceive of a situation where I’d want to exercise my “right” to defend myself with a gun. Others don’t feel the same way. What I have learned from listening to podcasts from the National Constitution Center with experts from conservatives and liberal persuasions is that both sides usually agree upon a lot and usually have relatively narrow differences – in this case how to apply “the historical tradition of firearm regulation” to a particular statute regulating guns. In this case, I’d say the court has been too dismissive of some of that history, but they have defined the battleground on which the next case will be decided, possibly in favor of regulation. (The Heller case is an exception to this generalization, since it “invented” a “right” to gun ownership that is not clearly defined in the Bill of Rights.) As much as I usually like to see the world in black and white terms, I don’t want to see the credibility of the Court destroyed by judging their decisions as black or white.

    Respectfully, Frank

    • jsrtheta says:

      “I don’t want to see the credibility of the Court destroyed by judging their decisions as black or white.”

      Sorry, but that ship departed decades ago.

    • Ed Walker says:

      If that were really the case, why did the corrupt spouse of the insurrectionist strike down the 100 year old New York statute that grew out of prior legislation?

    • J R in WV says:

      Frank said:

      “I’m currently happy relying on the police and can’t conceive of a situation where I’d want to exercise my “right” to defend myself with a gun.”

      You must live very close to a police department, just moments away if you call 911. I live at least an hour away from the closest law enforcement agency, especially late at night. My grandmother who lived on her small family farm a little closer to town back then than I live now twice held a would-be burglar at gun point while they waited for a deputy sheriff to arrive. She reportedly opened her back door while holding her pistol and said firmly “Don’t make me shoot you!”

      I have never, so far, come so close to that situation, but I did have sneak thieves who packed up their adventure on our farm when a very large dog interrupted their investigation into my garage and shop a hundred yards from the house. As they tried to flee the scene, I was waiting, armed but concealed, to ask what they thought they were doing on my private property. “We’re stone masons, and were looking for stone to work with” they said, completely unbelievably. I told them they were on very thin ice, and that they should never be seen near my property again, which has been the case.

      The police are prepared to investigate crimes and arrest those they find evidence against. They are not prepared to defend rural people from those who would threaten them at home alone. All my friends and neighbors, liberals and conservatives alike, have firearms and know how to use them for self protection. Best of luck to you when you call 911 for help. In town that should work OK mostly.

      • Rayne says:

        Let’s not turn this thread into a 2A battle zone, chewing up this thread.

        Focus on Ed’s post because the issue is bigger than 2A alone.

  8. BROUX says:

    I am far from a legal expert, but I have read several times that Congress can pass laws and insert in the legislation specific language that shields such laws from review by SCOTUS. I am not sure this how this is called, and whether it has ever been used historically. If this is a viable route then what are the obstacles to use it? Could knowledge people explain further?

    • bmaz says:

      No. Everything is “judicially reviewable”. The relevant question is what, if anything, is the result of such a review. And, with the current court, there is complete disdain for anything legislative.

      • joel fisher says:

        Sometimes a Court will piously state that a matter is a “political question” and therefor off limits to the courts. But guess who decides what is a “political question”?

      • AlaskaReader says:

        No?

        Perhaps you will explain how it is the many examples exist where judicial review was in fact constrained by Congress?

        • bmaz says:

          No. You are full of it, and you clearly do not understand Separation Of Powers. If you want an explanation, peruse the history of this blog. “Perhaps you would explain” what you are yammering about. I, and likely anybody else here, maybe just cannot understand your take.

          • AlaskaReader says:

            …recent examples of jurisdiction stripping include the following:

            Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (inter alia, stripped the federal judiciary of its jurisdiction to review certain Immigration and Naturalization Service decisions),
            Prison Litigation Reform Act of 1996 (restricting the remedies available to prison inmates),
            Antiterrorism and Effective Death Penalty Act of 1996 (limiting the number of habeas corpus petitions available to prison inmates),[28]
            Detainee Treatment Act of 2005, ruled as unconstitutional denial of the right of habeas corpus pursuant to the Suspension clause in the case of Hamdan v. Rumsfeld (2006).
            Military Commissions Act of 2006 (Strip all Federal Courts of the U.S. jurisdiction to hear appeal or cases from Guantanamo Bay Detainee) Ruled Unconstitutional in the case of Boumediene v. Bush (2008).

            …and in perusing the history of this blog this very issue has been left unaccounted for by you before.

              • AlaskaReader says:

                So to review, I’m ‘full of it’, I ‘don’t understand separation of powers’, I’ve ignored ‘the point’, and lastly, my attempts to support my view through links is merely ‘tedious’.
                As before, disdain and rhetorical devices appear as handy tools for dismissing the subject without addressing it.
                When legislative acts include the very clear language, ” to deny any court or judge jurisdiction”, it’s apparent something is inconsistent with your dismissal.
                The Supreme Court, over time, has put forth the fallacious claim that it possesses a judicial supremacy, a supremacy that is not supported by the framers of the Constitution.
                That ill-claimed supremacy is only supported by other’s giving their consent to that arrogation of power, as it appears you will readily concede to their wishes.

                Suffice it to say, I’m not the only person who holds that the Supreme Court is wrong and that Congress and the President have powers not superseded by the Supreme Court.
                The framers clearly granted power over the courts and it is far past the time that power was used to rein in the Supreme Court.

                • bmaz says:

                  Listen, I told you to give it a rest, and here you are back with two hundred words of the same repetitive bunk. You can get anything into a court, once there, you may win, may lose, may lose via dismissal, but a court will see it. That’s the point you don’t seem to grasp.

                  I don’t give a shit what you, or anybody else “holds”. You are out of your element. And by lying to people about the status of the law, you are making readers of this blog dumber with your relentless and repetitive conduct.

                  “So to review, I’m ‘full of it’, I ‘don’t understand separation of powers’, I’ve ignored ‘the point’, and lastly, my attempts to support my view through links is merely ‘tedious’.”

                  Yes, that sums it up. Stop now. Should you attempt to further comment on this subject, it will not be published.

  9. jaango1 says:

    When the Supremes outlawed “abortion” I commenced my loud articulation in the following manner: “The Governments—federal, state, county, and municipal–are prohibited in inserting themselves in a woman’s reproductive rights.”

    And I have moved on and forward, and advocated for Biden to call for the public resignations of the nine SCOTUS members. Of course, Biden will not and would not call for such public resignations. .And which means that we, the Chicanos, will have to change the many manifestations of public law that America’s white guys use to protect their “privilege.” Of course, I revert to the ability of “demographics” over the next dozen years.

  10. Bobster33 says:

    A larger issue seems to stem from the Republican perspective on securing the Blessings of Liberty (the 5th function of government). I see the 5th function as balancing freedom (the rights of an individual) with liberty (the rights of a group). Republicans do not seems to grasp the concept of the rights of a group, so everything is about the rights of the individual.

    A simplistic example would be playing street hockey on the flat spot on the 405 freeway. The 405 freeway has been secured for the liberty of driving and therefore I do not have the right (freedom) to use the 405 however I want. Republicans seems to ignore liberties to promote freedom.

    The same argument works for the liberty of Public Health vs. the freedom of not getting vaccinated or not wearing a mask. By granting the freedom (of not wearing a mask), the rest of us have our liberty of Public Health reduced.

    And in the end, for Republicans, it all boils down to me, me, and ME!

  11. Tony Covatta says:

    This is an excellent post. I’ve been talking about this conflict between individual freedoms and collective goals for some time. It’s time this became the centerpiece of the national debate. Unfortunately we are living at the sorry end of the march that started way back toward individual Liberty which now clashes so painfully with the need for group resolution of issues that impact us all like guns, vaccines, reproductive health, you name it.

    Purge the nastiness and hatred from the debate and it comes down to this —the doctrinaire white man’s court is stuck in the 18th century still trying to protect the Europeans from the dark forces. We need to bring the Court into the realities of this century. For the good of all. It’s not a political issue, it’s an issue of survival.

  12. joel fisher says:

    How does this:

    “held that there weren’t laws barring people subject to domestic abuse protective orders from having guns in 1792; therefore that can’t be Constitutional today.”

    not authorize this:

    Can’t wait to hear the lawyer for that numbnuts (I’m sorry spellcheck; “numbnuts” is a word.) who was waltzing around near Justice Kavanaugh’s house with a gun and a knife, tell the prosecution, “Back off, no rules about carrying weapons around a Supreme Court Justice’s house in 1792. So they ain’t valid today”.

  13. Golden Bough says:

    “After Bruen, the interests of normal people are irrelevant.”

    Similarly from Dobbs, FedSoc Ghoul AIito only mentions a woman’s interest in her bodily autonomy, I believe, twice and never in the context of considering that being a valid competing right. As Ed points out, the people actually and negatively affected by these outlandish rulings beyond common sense or judicial precedent have no seat at the table to even argue for their rights. How does that make a fair and just society?

  14. Epicurus says:

    Jamal Greene, a professor at Columbia Law School, has a really good book called “How Rights Went Wrong: Why Our Obsession With Rights Is Tearing Us Apart”. Our legal system/society has become a win or lose proposition, accentuated by our polarization. We don’t seek resolution as a balance of competing rights, as Mr. Walker is noting above. The win/lose approach seeks resolutions that create and intensify societal imbalance. He has answers, usually coming from other countries. But we are polarized and, thus, self-paralyzed to find a balanced solution.

    Philip Bobbitt, previously of Texas but now of Columbia Law School, also has a really good book called “Constitutional Fate: Theory of the Constitution”. While we have institutionalized judicial review we don’t have an overarching requirement for justices as to how that review is to be performed. Bobbit lists six different approaches, with Supreme Court judge examples, of how judicial is performed (and sometimes combinations of approaches). There are probably more approaches but Bobbitt sticks to six. Those approaches, generally, are historic, textual, doctrinal, prudential, structural, and ethical. Looking at those approaches, one can see how Supreme Court judges can come to such disparate conclusions based on their personal conditioning and freedom to apply a given approach. And how the court and judicial review can be manipulated by simply choosing justices for their approaches, how they are going to rationalize their decisions.

      • Epicurus says:

        A fatal flaw in a democracy or a republic is when representatives are not responsible to the people. The Supreme Court justices are chosen by other representatives, are appointed for life, and have no formal accountability to “the people”. They are only responsible to themselves.

        The Court’s judicial oath is instructive: “I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons,….’. Justice is undefined here. Consequently, there is a high probability there are nine different definitions of justice among the justices themselves, just as there are probably many definitions of “justice” among readers of this blog. “without respect to persons” reinforces the ability of justices to choose a rationale or approach that allowss them to apply their concepts of justice without concern for the people the Constitution is serving.

        Robert Cover’s book “Justice Accused: Anti-Slavery and the Judicial Process” is the best example I can give of a Supreme Court rationalization of justice and “without regard to persons”.

  15. jsrtheta says:

    The fact is that the Court’s fealty to “original intent” is about as credible as a George Santos campaign commercial.

    The majority in Heller invented history out of whole cloth. Had Scalia had an ounce of integrity, he would have been forced to acknowledge that, at the time of the amendment’s creation the City of Boston outlawed the possession of loaded firearms in the home.

    Anyone up for a slicing and dicing of Scalia’s reasoning should look up Judge Richard Posner’s article on the Heller decision. He knows a naked emperor when he sees one.

    • BruceF says:

      Original intent applied in original context…single shot muskets/pistols were the weapons of the day. Our revered Founding Fathers had no ability to anticipate the Second Amendment would be applied in an era when military assault weapons would become widely available and affordable!

  16. The Old Redneck says:

    Every constitutional right is subject to reasonable limits. For example, the First Amendment has time, place and manner restrictions. That means you can’t exercise your free speech rights by yelling through a bullhorn at 3 am in your neighborhood. I could give other examples for every right we have.
    But there seems to a push for absolutism as to the Second Amendment. No restriction, however sensible or innocuous, can be tolerated. That leads to decisions like the one invalidating a ban on bump stocks. The historical tradition test provides no real backstop either. It can easily be cherry-picked to lead to the desired outcome – cite the historical evidence you like, and ignore the stuff you don’t.
    It’s the Constitution, truly, as a suicide pact. Just ask all those music fans from Las Vegas.

        • dimmsdale says:

          Yeah, there was just a segment on MSNBC about it–take all this as my best memory of the segment. Apparently the ‘investigation’ was conducted by the Sup Ct Chief of Police, who works FOR the court (and is assumed to be beholden to it). Current clerks and staff only, and NO outside interviews of former clerks. Clerks signed affidavits, and in some cases had to re-do their affidavits when it came out that they had told their spouses about Dobbs.

          Also this is the first I’ve heard about Alito complaining about actual assassination threats directed at conservative justices; were they reported to the FBI? Do they exist at all?

          Perhaps Roberts’ play here is to fling spaghetti at the wall and see if it sticks, and if not, come up with a Plan B. For what it’s worth, Frank Figluzzi was asked “Do you think ‘someone’ on the Court knows who the leaker is?” and he answered firmly, “Yes.”

        • harpie says:

          https://twitter.com/mjs_DC/status/1616548506642046978
          4:29 PM · Jan 20, 2023

          Supreme Court marshal says she “spoke with each of the justices” during the investigation into the leak but “did not believe that it was necessary to ask the Justices to sign sworn affidavits.” [screenshots] [THREAD]
          […]
          If the marshal was so certain the justices weren’t involved with the leak, she could’ve simply asked them to sign a sworn affidavit saying so, just like everyone else. It would not have been difficult. If she has a good reason for refusing to do so, she has not provided it!

    • harpie says:

      Inside the Supreme Court Inquiry: Seized Phones, Affidavits and Distrust An investigation of the abortion opinion leak was meant to right the institution amid a slide in public confidence. Instead, employees say, it deepened suspicions and caused disillusionment. https://www.nytimes.com/2023/01/21/us/supreme-court-investigation.html Jodi Kantor Jan. 21, 2023 Updated 2:14 p.m.

      Archived here [Photos don’t show up]:
      https://web.archive.org/web/20230121204853/https://www.nytimes.com/2023/01/21/us/supreme-court-investigation.html

      […] Periodically, employees receive a stern memo reminding them that they may not participate in partisan political activities — no events, fund-raising, bumper stickers or statements on social media. So some bristled when four justices attended a 40th-anniversary dinner for the Federalist Society, an influential conservative group that focuses on the judiciary, in November.

      Last spring, Justice Thomas declined to recuse himself from cases involving attempts to overthrow the 2020 election, even though Virginia Thomas, his wife, had been involved in those efforts. Months later, a former leader of the anti-abortion movement wrote to the chief justice to report an alleged earlier breach [!!!!!], of a 2014 contraception decision, that he said stemmed from a donor’s meal with Justice Samuel A. Alito Jr. and his wife. The court never responded.[…]

      • Ginevra diBenci says:

        harpie, thank you for inserting this into discussion of Ed’s timely post. Given all you report, I doubt I’m alone in suspecting that Roberts knows who leaked the Dobbs draft and either himself sees an advantage in concealing the leaker’s identity or has been pressured by powerful interests (likely fellow justices) to keep it secret.

        This investigation seems to have done more institutional harm than good. And as Ed notes, the Court cannot afford such own-goals, especially not when they’re accompanied by Roberts’ attempts to cast himself and his colleagues as victims of external forces. It’s not our fault you let yourselves fall so low.

  17. Hug h roonman says:

    Ed thanks for this excellent essay!

    “The right-wing wrecking crew on SCOTUS is destroying the safety and security that make it possible to live in our society. They oppose governmental power when it’s used to protect us from guns and disease, and they strike at rights people need to participate fully in our complex capitalist society.

    Bullseye!

    The first paragraph perfectly and concisely describes our untenable current situation.

  18. Silly but True says:

    Four years ago, Vice brought Dick Cheney’s “unitary Executive” philosophy into the national lexicon. As dangerous as a unitary Executive can be, it’s not even a fraction of the danger that a “unitary Judiciary” could pose.

    The solution to these power grabs are a healthy Separation-of-Powers amongst the co-equal branches of the federal government, and also among the united and sovereign States in their relations to our central federal government within the Republic.

    When any of these break down, the void will be filled by one of the others.

    The states have been schizophrenic as a composite, nearly equally split down ideological lines in lawsuits by States against federal government on many cultural issues or resistance to things like the ACA exchanges or Medicaid expansion.

    The approval index polls give some idea: Congress polling down in 14% approval reflects a certain powerlessness. Same for battering that the office of POTUS has taken.

    In face of all this, SCOTUS as institution had been ascendant up until very recently, reflective of the popularity of “Notorious RBG” and arguably Scalia’s to her passing spanned an inflection point to that rise.

    SCOTUS’ state right now is both its solution and a problem to the others’ waning power.

  19. Bay State Librul says:

    BMAZ, just read an essay entitled “sometimes-a-little-bullshit-is-fine-a-conversation.”
    I thought of you.
    My evidence is entirely circumstantial.
    To wit,
    The Justices were not interviewed.
    The strange Wall Street Journal article days before the leak.
    The term they used “preponderance.”
    My skepticism of the current makeup of the Court
    Why did they need a “second opinion'”?
    And finally, the cost. Did taxpayers pay for this. If so, my little bull shit opinion is not worthy of condemnation, is it?

  20. Bay State Librul says:

    Ed,

    Fine post.

    I second Kermit Roosevelt III’s proposal for reform:

    “The solution to this problem is simple: term limits for Supreme Court Justices, with staggered eighteen-year terms so that each president gets two appointments per four-year term. That is a nonpartisan, good-government reform that has broad support—but not as much as it deserves. It will not immediately restore the Supreme Court to where it would be if past presidents had equal influence, but it will fix the system going forward.”

    Simple — yes. Chances of passage – as remote as the Republicans telling the truth about history.

  21. Silly but True says:

    The Cargill bump stock decision is the technically correct one; the ATF rule was wrongly implemented. Here, where there is a (comprehensive) federal law that details this minutae, the ATF does not have the legal authority to administratively try to redefine what Congress established in law via agency whim.

    However, Congress does have the ability to update the law to regulate bump stocks, and should.

    This was not a judicial problem per se per the overall essay thesis, but a side problem to the weakness and intransigence of Congress on this specific issue.

    • Ed Walker says:

      This statute has been construed by other appellate courts to permit ATF to enact this rule. Obviously as a matter of reality, a semi-automatic rifle wiht a bump stock is analogous to a machine gun. But perhaps the Holy Six are so anxious to bring people to their eternal reward they’ll agree with you: that we as a nation have to pass a law every time someone invents a new way to kill people rapidly.

      • Silly but True says:

        I mean as far as “matters of reality” can possibly go, a heck if a lot of things can also be “analogous” to other ways in small or technically inaccurate. ways too, but it doesn’t make it legal.

        That doing something in ones curtilage may as a matter of reality be analogous to doing something in one’s bedroom still doesn’t give anyone the right to break any right to privacy of one’s bedroom, ot that Twitter as matter of reality in regulating speech on its private platform is analogous to Capitol police tear gassing protestors in a federal park doesn’t mean I want Twitter forced to have to accept everything posted on it.

        • Ed Walker says:

          See, that’s how us old lawyers and judges understand our work: which analogies are within the intent of an existing statute and therefore are covered. Even the murder-friendly Fifth Cir. claims it’s doing that when it talks about the rule of lenity.

          But then Scalia told the right wing that only things expressly said in a law are covered. That way everything is legal except the very specific thing covered by the law.

          • Silly but True says:

            If words are to have any meaning at all, magically saying non-machine guns are machine guns is not within the law intending to regulate machine guns though.

            5th Ct. is factually and legally wrong

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