Who couldn’t see this coming—years ago? A decade ago?
Long before the leak of Justice Alito’s draft opinion reversing Roe v. Wade, Supreme Court justices often used personal email accounts instead of secure servers designed to protect sensitive information. Security lapses by the justices apparently were routine, making the embarrassing and public-trust-wounding leak all but inevitable while also rendering an effective investigation difficult as well.
Supreme Court employees used printers that didn’t produce logs. They were able to print sensitive documents off-site without tracking. So-called “burn bags” containing materials that needed to be shredded were left open and unattended in hallways. Employees could remove documents, including draft opinions, from the SCOTUS building Continue reading →
In the Supreme Court case In Re Grand Jury, the government had been trying to obtain documents from an unnamed law firm specializing in international tax law. The documents were needed to investigate the law firm’s client. A judge held the law firm in contempt for failing to turn over disputed documents, and the 9th U.S. Circuit Court of Appeals at San Francisco affirmed in 2021. The issue was what test courts should apply when considering whether to protect “dual-purpose” documents that contain both legal and nonlegal advice. The 9th Circuit ruled that courts should look to the “primary purpose” of a communication when it involves both legal and nonlegal analysis. Documents may be privileged when the primary purpose is to provide a client with legal advice. The firm argued that the entire document, along with any non-legal advice and material in it, should be considered privileged if legal advice was one of the “significant purposes” of the communication.
The legal ethics traditions argue for the more expansive standard. ABA Model Rule of Professional Conduct 2.1, “Advisor,” states in part,
“In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation….Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.”
I agree with this approach. Requiring a client or an attorney to parse a letter or oral discussion to separate the legal, privileged content from the rest would chill effective lawyer client communication. Continue reading →
When Ethics Alarms first covered the case of a Christian website designer who was prosecuted for refusing to design a website celebrating a same sex wedding, I wrote at the top, “I will state up front that I am confident that this decision will get to the U.S. Supreme Court, and that if and when it does, it will be reversed.”
Now the case has indeed arrived at the Supreme Court. Its likely reversal (the website designer, a trial and a appeals court ruled, could not refuse to design a website celebrating a same-sex wedding) is being blamed by the LGBTQ suck-up media on all those evil conservatives who have invaded the Court since it ducked the matter of Christian baker Jack Phillips, who refused to bake a cake for a same-sex wedding. SCOTUS decided in favor of Phillips on technical rather than substantive grounds, with a waffling majority opinion by Justice Kennedy, who specialized in such things. Kennedy is gone, but the reason the web designer is likely to win isn’t the change in the composition of the Court, but because the 10th U.S. Circuit Court of Appeals was dead wrong when it ruled in 2021 that Lorie Smith and her company, 303 Creative, violated a Colorado law by refusing to create a website for a same sex union.
In 1978’s Bakke decision, a fractured majority of the Supreme Court found that universities could consider race to build a diverse student body, agreeing that educational benefits could flow from diversity. At the same time, the opinion prohibited quotas, requiring universities to undertake a “holistic” review of each applicant in which race could be a factor. The Supreme Court affirmed this foggy principle in 2003’s Grutter v. Bollinger and again in 2016’s Fisher v. Texas. Schools, meanwhile, became adept at making sure that holistic approach resulted in the desired racial proportions.
Now the Supreme Court appears ready to rule that the race-conscious admissions programs at Harvard and the University of North Carolina are unlawful. Five hours of arguments and questioning in the two cases’ oral presentations before the justices made that abundantly clear, but it was already clear long before. The cases’ decisions won’t be handed down until June 2023 (unless that majority opinion gets leaked too), but the Left is already laying the groundwork for a Dobbs-like freak-out.
The clear media talking point memo apparently requires all stories to call such a decision ” a move that would overrule decades of precedents.” But this is deliberately disingenuous. From the beginning, the Supreme Court allowed colleges and diversities to use race in their admission procedures while acknowledging that it was a special exception to the equal protection requirement of the 14th Amendment that was necessitated by the unusual circumstances of slavery and Jim Crow. (It was, in fact, a perfect example of the Ethics Incompleteness Principle, where a valid rule did not work well in a unique situation, and thus s special, unique solution had to be crafted that does NOT serve as a precedent.) Justice Sandra Day O’Connor admitted as much in her opinion in Grutter v. Bollinger (2003), concluding that affirmative action in college admissions is justifiable, but not forever: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in student body diversity] approved today.”
It was a bad and confusing opinion: if the law and the Constitution is the same, why would it be acceptable to violate it then but not 25 years later? It is now 19 years later; 25 years was not a scientific estimate, but just wait: one of the arguments that will be aimed at the SCOTUS opinion in June will be that it’s “too soon.”
The current mainstream media propaganda narrative is that the new Supreme Court term that began this week is shadowed by the peril of “losing legitimacy,” a code for “not following rigged polls and angering Democrats who don’t have a SCOTUS rubber stamp any more like they did for decades.” This theme is (I would say obviously but I’ve decided I use “obviously” too often) part of the strategy, begun under Barack Obama to save his unconstitutional Affordable Care Act, to bully, intimidate and lobby the justices in what is a blatant corruption of the justice system.
“The Week’s” contributing editor Harold Maas helpfully has produced an opinion piece that serves as a useful template in considering the legitimacy of these laments about Supreme Court legitimacy. To begin with, Maas isn’t a lawyer, which explains why he doesn’t know what the hell he is talking about. He, like most of the critics of the Court he cherry-picks in his screed, seems to think that whether a judge’s decision is right or not depends on how popular it is or whether the public would rule the same way. Under this warped concept (see, I wanted to write “of course” again) Judge Caverly would have responded to Clarence Darrow’s eloquent and thoughtful plea for mercy to be shown the young thrill killing duo of Leopold and Loeb by having them hanged. There would be no Brown v. Board of Education. We would have had many more decisions like the infamous ruling in Korematsu v. United States where a liberal Court approved FDR’s internment of U.S. citizens of Japanese ancestry because the racist, panic-driven, wildly unconstitutional policy was popular.
You know: Legitimacy!
I’ve already read, just in the last few days, more than ten articles making essentially the same (bad) argument as Maas, though he makes it particularly unethically and so transparently from the perspective of a progressive partisan, which is why I admire it. Consider:
Next term, the Supreme Court will hear two high-profile cases challenging affirmative action policies at the University of North Carolina and Harvard College. The court just barely upheld affirmative action in 2016, but it seems likely that the current Court’s composition is unlikely to allow it to continue. This is a good thing, though those who benefit from racial discrimination not surprisingly are horrified by the prospect. John Roberts mysteriously shocking quote the last time around— “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—is pretty much indisputable. As in a growing number of areas, the American Left simply does not like the U.S. Constitution. In the area of colleges and grad school admissions, this is because the document requires that all races be treated equally under the law. Continue reading →
Mark Tapscott is a veteran Washington, D.C. political pro and investigative journalist (who has weighed in at Ethics Alarms a time or two). Late yesterday he focused on clarifying the troubling Rolling Stone story I wrote about here.
That Rolling Stone piece was headlined, “SCOTUS Justices ‘Prayed With’ Her — Then Cited Her Bosses to End Roe,” an allegation that fed directly into the pro-abortion trope that the Dobbs decision was substantially motivated by theological fervor rather than legal analysis. In the Ethics Alarms post, I expressed skepticism that the story could be accurate because no mainstream media source had picked it up, and also because any Justices praying with a representative of a religious organization before ruling on a case in which that organization had submitted a brief would create a neon-bright appearance of impropriety. On the other hand, I found it unlikely that the publication would drop such a “bombshell” without strong evidence, since its news reporting credibility was on lengthy probation after its phantom UVA “gang rape” story fiasco in 2015.
Now the verdict’s in, thanks to Tapscott: Rolling Stone apparently hasn’t learned anything about journalism ethics the last seven years. In a “Culture” column for PJ Media, Tapscott explains:Continue reading →
Rolling Stone has reported that during an evangelical victory celebration in front of the Supreme Court to celebrate the Dobbs decision, Capitol Hill religious leader Peggy Nienaber got herself recorded saying that she has prayed with sitting justices inside the SCOTUS building. “We’re the only people who do that,” Peggy Nienaber boasted. Nienaber is Liberty Counsel’s executive director of DC Ministry, as well as the vice president of Faith & Liberty, whose ministry offices sit directly behind the Supreme Court. Liberty Counsel frequently brings lawsuits before the Supreme Court, and filed an amicus brief in Dobbs v. Jackson Women’s Health.
Liberty Counsel’s founder, Mat Staver, strenuously denied that the in-person ministering to justices that Nienaber bragged about exists. “It’s entirely untrue,” Staver tells Rolling Stone. “There is just no way that has happened.”He adds: “She has prayer meetings for them, not with them.” Asked if he had an explanation for Nienaber’s direct comments to the contrary, Staver says, “I don’t.” But the founder of the ministry, who surrendered its operations to Liberty Counsel in 2018, tells Rolling Stone that he hosted prayer sessions with conservative justices in their chambers from the late-1990s through when he left the group in the mid-2010s. Rob Schenck, who launched theministry under the name Faith and Action in the Nation’s Capital, described how the organization forged ministry relationships with Samuel Alito, Clarence Thomas, and the late Antonin Scalia, saying he would pray with them inside the high court. Nienaber was Schenk’s close associate in that era, and continued with the ministry after it came under the umbrella of Liberty Counsel.
This is a problem. And I’m just talking now about the previous SCOTUS ruling that launched a freak-out yesterday. As you probably know by now, the leaked SCOTUS ruling rebuffing Roe v. Wade is no longer a leak.
The Supreme Court ruled 6-3 to strike down a restrictive “needs-based” concealed carry laws in New York State Rifle & Pistol Association v. Bruen. Even though Justice Thomas’s majority opinion was tight and clear as well as consistent with SCOTUS precedent as well as, of course, the Bill of Rights, such worthies as President Biden claimed that, in the President’s words, the ruling contradicted “common sense and the Constitution.”
What are the odds that Joe read the opinion before declaring that? I’d say “none.” Making such a statement while carrying the presumed authority of President without knowing what the Court’s analysis was is completely unethical and an abuse of position.
The modern left doesn’t even bother pretending they believe the Supreme Court has a responsibility to act as a separate branch of government and adjudicate the constitutionality of law. Rather than even ostensibly offering legal reasons for their ire, Democrats simply demand the Supreme Court uphold public sentiment (or, rather what they claim is public sentiment), even though SCOTUS exists to ignore those pressures. The fact that that attitude has congealed as the norm in one of our major political parties does not bode well for the future of the Republic.
It is particularly disheartening that the three liberal justices in their dissent stooped to fueling this distortion of the Court’s role. Their arguments were almost all irrelevant to the constitutional issues and the Court’s previous rulings regarding the Second Amendment. Instead, Sotomayor, Breyer and Kagan took the low road of evoking recent shootings and incidents of gun violence as if current events should permit the limiting of explicit Constitutional rights.
It’s not surprising that last week’s decision in the Arizona case of Shinn v. Ramirez and Jones didn’t get much coverage outside of the legal media. The decision is procedural rather than substantive, and the majority opinion by Justice Thomas in the 6-3 holding is hard sledding. Nonetheless, it is a classic example of law trumping ethics. The Justice Sotomayor dissent, joined by the other two liberal justices, argues that it trumps law as well.
I would not argue that law must never trump ethics, for law requires consistency and systemic application over the long term to have credibility and integrity. However, Shinn involves a man facing the death penalty, and the decision by the conservative justices chose the virtues of finality over the possibility that the government might be executing an innocent man.