(There is an execution scheduled next week, so that might require an order. As usual, there might be some miscellaneous order, or something else popping up. There was also an order for further briefing in the Remain in Mexico case that is due next week.)
The big news this week, obviously, is the leaked abortion draft.* This led to a lot of reaction, including some basically using it to assume abortion rights and more are clearly DOD. Others try to tone that down, though this gets some ridicule from the usual suspects. Some, including the official line from Jen Psaki, remind it is only a draft. So, we don't know exactly what will happen.
The first thought from many liberals was that the leak came from the conservative side to keep together a strong conservative opinion. Another take, reminding that we already had a leak about negotiations, suggested an argument for a liberal leak. Victoria Nourse, the law professor, on Twitter suggested the leak came from a computer hack of some sort. I think we need to be wary here about assumptions. A surprise, limited it might be, is still possible. Guess away though.
If Nourse is right, maybe the idea it is laughable that the Court's marshal can help find the leak is a tad overblown. I think that commentary is good to remind that the Supreme Court still is too unregulated, the idea that an ethics reform is just stupid (how would we bind them?) overblown. If a reform law provided various means to complain, reporting rules, and so on, that alone can be useful. Anyway, this is a powerful statement:
Most Americans, we suspect, assume that there is some procedure to enforce both internal rules and federal laws within SCOTUS. There is not. If a justice commits an ethical breach, including a violation of the federal law mandating impartiality, there is literally no recourse (short of impeachment). There is no way to force a recusal; that decision lies with individual justices. If an employee witnesses malfeasance, there is no mechanism to report it—no tip line, no whistleblower protection, no chain of command to ensure that the matter is investigated. If that employee dares to disclose it anyway, they can be fired with impunity, as can other staff who experience discrimination or retaliation.
I saw one poll cited that showed broad support for ethics reform, term limits, and age limits. Term limits are popular and logical, but hard to put in for constitutional reasons. Ethics rules should be a lot easier to handle as would more open government processes such as permanent live audio or even video. Again, maybe that is a bit more controversial as a matter of constitutional separation of powers, but only so far in my view.
One visual bit of symbolism is the use of fencing around the Supreme Court building. Senate Democrats are preparing to again vote for a sort of statutory Roe, which last time obtained forty-six votes, a few Democrats not available. There is the nay-saying that this will just be eventually overturned on federalist grounds, but that is not presumptively obvious, and a few steps ahead.
Collins, just shocked at Kavanaugh's apparent turn, already is saying she won't sign on to this basically symbolic (without the end of the filibuster) move, since it allegedly will not protect Catholic hospitals (a b.s. argument; the hospitals also have their own problems, repeated cases of women's health being threatened cited). Figure Murkowski will go along with her.
Again, one thing some "reasonable" types are arguing is that the abortion ruling won't go THAT far. At best, this is a matter of raw pragmatic power, not really a matter of principle. I know, that is shocking and all, but just to point it out. And, the argument is dubious based on "popularity" given a strong anti-abortion ruling isn't popular.
One form of this argument is put out by a favorite among some liberal professors and the like, Orin Kerr, who is known for such things as "both sides do it" regarding Trump nominees. His reasonableness only goes so far and I'm done with such types. The stakes are too high. Let's cut the b.s. And, that is yet again going after RBG. Is that some sort of kneejerk?
[The argument is overblown. Liberals don't just "fall in love." Loads of them, including as shown by support of Biden, compromise and go along because that is how you handle things. It is a flawed coalition and the alternative is too harsh to contemplate. Anyway, she's dead. Move the fuck on. Well, you won't, but that's just my sentiment on that point.]
Anyway, Roberts was out in the wild, noting that the released draft won't affect their judgment (uh huh) while Alito decided not to take part in a scheduled Fifth Circuit event (so sad). I have yet to see Sotomayor or one of the liberals having a public event. Sotomayor had one not too long ago and at times some questioner flags the divisions or some such thing.
She is a tad less blatantly ostrich-like about the whole thing, though still politely says she has to do her best. The mask kerfuffle also noted she and Gorsuch are pals. Always nice.
The abortion draft leak has increased -- as "moments" tend to do -- wider debates. One is the limits of the courts as an institution. I think this sort of thing is a bit overblown. One central thing that comes to mind is that courts not only have only so much power (the Plessy Court was part of an era), but is part of a wider political institution.
The Barrett Court is a result of Republican ratfuckery, helped along by some political structural problems. Consider how the Dred Scott Court was in large part a result of the existing political world of the time, one where the party system favored going along with slavery. If the Civil War did not occur, a real shift could have took place in the 1860s with a strong Republican Court, eventually led by anti-slavery Salmon Chase.
The bottom line message here is the breadth of the situation, moving past the depressing state of needing to worrying about basic privacy and equality rights fifty years after they seemed to be addressed. This situation built up over a long time and it won't be fixed right away. A major part of it is to understand the problem and be open to change, even if you cannot immediate do as much as you want to do.
On that front, we are but in the middle of things, perhaps on some front the beginning of things. The 2020s will continue to be ... something.
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* I will edit this entry by noting that the "the leak isn't the point" replies are overcompensation. The Strict Scrutiny Podcast women law professors surely can't be labeled soft on women's rights or anything, but found the leak particularly notable. The leaking of a whole draft opinion, on top of the leak to the WSJ about negotiations is notable, including the attempts by insiders to use political pressure to influence the law.
This is another installment of my general sentiment that life is complicated with things having various aspects. Surely, the content of the draft and eventual opinion matters. Process still matters, even when results are most important. Law especially is a lot about process (due process, you might say).
And, however you see it -- and some think the leak ultimately is a good "snap out of it" honesty moment -- the leaks is an important part of the story. If Republicans are hypocrites for NOW worried about appearances (since it taints what they made and lets them avoid talking about stripping rights), that only shows again this is an important part of the story.
We can still focus on the results.
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Thanks for your .02!