Ethics Observations On The Dobbs SCOTUS Opinion Draft Leak And Reactions To It

Ethics Alarms posted briefly on the stunning leak of what appears to be a draft of a majority opinion striking down Roe v. Wade and the related Casey decision. [The link to the draft is in that article.] The position here is that any analysis based on the draft itself is premature and irresponsible, since the document is 1) a draft 2) not even necessarily the latest draft, and 3) the opinion as well as the support for it on the Court could change materially before the actual opinion is released.

The only ethics issue immediately clear is that regarding the leak itself, and, by extension, the leaker. Leaks always constitute a unethical breaches of trust; only in the rare cases where they reveal actual criminal activity can they be justified. For a lawyer to leak any information related to a professional obligation or representation is grounds for disbarment, and permanent infamy within the profession. This leak cannot be defended, and pundits, politicians or activists who praise the leaker reveal their own ethics bankruptcy. Keep a watch out for the leak apologists. Then relegate them to your “Untrustworthy” file.

Now the focus shifts to the reactions to the draft, and it is fair to say they constitute a freak-out. Prime among them is the hypocritical and hysterical joint statement by Sen. Schumer and Speaker Pelosi. Imagine: these are leaders of the party that has accused Donald Trump of undermining core American institutions.

The statement is breathtakingly dishonest. None of the members of the Court ever stated that they would not vote to overrule Roe. They said it was the law of the land, which is true, and stated their support for the principle of stare decisus. That did not preclude their voting to reverse Roe later based on a case that hadn’t been briefed or argued yet. I have read enough of the draft to know that Justice Alito clearly explains that stare decisus has always had exceptions (but I knew that) where a wrongfully decided Constitutional case had to be reversed, writing.

“We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ we place a high value on having the matter ‘settled right….On many other occasions, this Court has overruled important constitutional decisions. … Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”

It should be very easy for Republicans and anyone else to explain the demise of Roe to the public. It was, as Alito says, a bad decision from the beginning, and it was time for the rights of the unborn to be considered, and not just the imaginary right of mothers to have their children snuffed out.

I’m going to spend most of my time devoted to this episode reading the draft, but here are links to various news reports and commentary: ABC News, The Daily Beast, HuffPost, CNN, New York Times, CBS News, Reuters, Washington Examiner, Associated Press, Fox News, NPR, Townhall, Slate, The Guardian, CNSNews, Al Jazeera, Outside the Beltway, Washington Post, De Civitate, Insider, Bloomberg, NewsOne, USA Today, A Lawyer Writes, emptywheel, pjmedia.com, The Nation, Breitbart, Los Angeles Times, The Daily Signal, Vox, Washington Times, The Comity Channel, Deadline, KLAS, The Daily Caller, Men Yell at Me, PennLive, The Hill, The Moderate Voice, littlegreenfootballs.com, NBC New York, Ninja Smith & Friends, WCMH-TV, HotAir, Variety, Deseret News, BuzzFeed News, NBC News, RedState, Mississippi Free Press, Mediaite, Things Worth Thinking About, thot pudding, homeculture, National Review, Big League Politics, WCTX-TV, Twitchy, Talking Points Memo, SCOTUSblog, CNBC, Jill Filipovic, Lawyers, Guns & Money, The Daily Wire, Maxwell’s Newsletter, A Propensity …, Gem State, Louder With Crowder, PharmaHeretic’s Newsletter, First We Think, Vanity Fair, New York Post, Law & Crime, Raw Story, The 19th, The Texas Tribune, Dana Loesch’s Chapter …, Power Line, The Racket News, New York Magazine, Fortune, Hennessy’s View, Trash Chair Thoughts, VICE, UPI, The Gateway Pundit, GC News, Instapundit, Watch Night News, Rolling Stone, Sacramento Bee, The Even Place, Let’s Get Politigal, WPRI-TV, Daily Insurrection, Mother Jones, Super-Probably Relevant …, Mercury News, The Right News, The Western Journal, TheBlaze, Althouse, Unfogged, Ace of Spades HQ, Teresa L’s Newsletter, Boing Boing, CBS Denver, IJR and Progress Report

Further observations:

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Professional Ethics Breach Alert! The Draft SCOTUS Abortion Opinion Leak

The issue right now is simple. Someone with access to Justice Alito’s draft majority opinion in THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL., PETITIONERS u. JACKSON WOMEN’S HEALTH ORGANIZATION, ET AL. leaked it to Politico. This is the worst breach of professional ethics in the history of the Court. It is the worst breach of professional ethics in the history of the federal court system. If a lawyer, such as a law clerk, was responsible, he or she should be, and probably will be, disbarred.

The draft is here.

I haven’t read the draft: the thing is 67 pages long, and I just got it. The conclusion, however, is clear:

We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not pro­hibit the citizens of each State from regulating or prohibit­ing abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.

The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

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The Supreme Court Reinstated The Death Sentence Of Boston Marathon Bomber Dzhokhar Tsarnaev. Good.

Good, and also legal, ethical, just, fair and necessary.

Justice Thomas wrote the majority opinion in United States v. Tsarnaev. It is, like most Thomas opinions, long, careful, thorough, and persuasive. The dissent by Justice Breyer, in contrast, is uncharacteristically weak, and the other two “liberal” justices did themselves no favors by joining it. Essentially, it is an example of exactly the judicial legislating that conservatives rightly complain about. Breyer grasps at a dubious legal straw to do indirectly what he cannot do directly: ban capital punishment, which is both legal and constitutional. His whole argument in his own nutshell:

During the sentencing phase of his murder trial, Boston Marathon bomber Dzhokhar Tsarnaev argued that he should not receive the death penalty primarily on the ground that his older brother Tamerlan took the leading role and induced Dzhokhar’s participation in the bombings. Dzhokhar argued that Tamerlan was a highly violent man, that Tamerlan radicalized him, and that Dzhokhar participated in the bombings because of Tamerlan’s violent influ-ence and leadership. In support of this argument, Dzho-khar sought to introduce evidence that Tamerlan previously committed three brutal, ideologically inspired murders in Waltham, Massachusetts. The District Court prohibited Dzhokhar from introducing this evidence. The Court of Appeals held that the District Court abused its discretion by doing so….
This Court now reverses the Court of Appeals. In my view, the Court of Appeals acted lawfully in holding that the District Court should have allowed Dzhokhar to introduce this evidence.

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The Biden Supreme Court Pick Ethics Train Wreck

Wow, that was fast. This episode has turned into an ethics train wreck with record speed. Some ethics train wrecks slow down and stop after a few months; other roll on seemingly forever. The Trayvon Martin-George Zimmerman Ethics Train Wreck, which has included directly-related wrecks like the Ferguson Ethics Train Wreck and the George Floyd Ethics Train Wreck, is almost nine years old, and won’t stop until Black Lives Matter lies a-moldering in the grave. The 2016 Presidential Election Ethics Train Wreck is still going strong, with the Jan. 6 riot and the subsequent kangaroo court investigation in the House the latest cars to be hooked up. The Biden Supreme Court Ethics Train Wreck? At this point, where it stops, nobody knows.

It began before it was even certain Biden would get a SCOTUS nomination, when he first promised to name a black woman to the Court. That promise, which he quickly confirmed once Justice Breyer announced his retirement, was unethical “on its face,” as the Court might say. The statement means, and can only mean, that group identification is the primary priority for the President of the United Sates in nominating a crucial individual who will help determine the course of the nation’s laws, justice system, constitutional integrity and culture for decades to come. That function has nothing whatsoever to do with race or gender. Nothing. Being black, white, Native American or Asian does not make an individual more or less qualified for the job, and neither does gender. Biden’s statement literally means that he is placing tribalism and group identification biases above the substantive needs of the nation. That’s unethical. Other Presidents have done this, notably Ronald Reagan and George H.W. Bush. That’s no mitigation.

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Comment Of The Day: “Observations On Justice Breyer’s Retirement”

Michael West’s rueful Comment of the Day relating Justice Breyer’s eagerly awaited (by Democrats) retirement to the deterioration of the balance of powers intended by the Founders presents a useful perspective. My only cavil is his introduction.

I think it is unfair to assume that Breyer retired to ensure that a Democrat President would choose his successor. Maybe he did, but nothing Breyer has said in his years as a Justice would be consistent with that thesis. Breyer, unlike Ruth Bader Ginsberg, has never been overtly political, and has objected to accusations that his colleagues on the Court were driven by partisan agendas. If we take him at his word, it would be extremely out of character to quit so Joe Biden could apppoint a replacement based on an ideological check list filtered through the non-merit restrictions of race and gender.  Of course, all of this is really just a bad sign for the dignity of SCOTUS and the strength of the divided government. “The only ethical reason for any Justice to retire is because it’s time to retire,” Michael begins. Well, at 83, it’s always past time to retire. I think Justice Breyer has earned the benefit of the doubt.

Now here’s Michale West’s Comment of the Day on the post, “Observations On Justice Breyer’s Retirement”:

***

The only ethical reason for any Justice to retire is because it’s time to retire. But we all know Breyer is making a strategic retirement to permit a Democrat president to appoint and a Democrat Senate to approve a Progressive to the bench. This is a clear indication of the intentional politicization of the Court – which is was never meant to be.

This is all because of the ever increasing ability of Executive Branch and now the Judicial Branch to basically become alternative legislatures to Congress which has largely surrendered most of it’s power since the technocratic growth of the bureaucracy from FDR’s time. Continue reading

Fake News Watch 2: The Missing Mask

Compared to the above mass fake news about mass graves that have not, in fact, been verified, NPR’s bit of false reporting on Supreme Court intrigue seems trivial, and is. NPR’s longtime liberal-leaning Supreme Court reporter impugned Democratic Party boogie man Neil Gorsuch—He stole Merrick Garland’s seat!—by writing that Mean Neil was trying to kill Justice Sotomayor ( who “has diabetes, a condition that puts her at high risk for serious illness, or even death” from the Wuhan virus) or something, because he refused to wear a mask despite Justice Roberts “asking” him to.  Sotomayor, therefore, has to participate in the Court’s work via Zoom. Gorsuch is, apparently, fully vaccinated, and doesn’t have the virus. Continue reading

More From The Bulging “It Isn’t What It Is” File! Unethical Quote Of The Week: Washington Post Deputy Editorial Page Editor Ruth Marcus

“How nice for the Supreme Court. It can take the precautions it deems necessary to keep its workplace safe…If only the court were willing to extend similar protections to the rest of us, in our workplaces. Or to be more precise, not to interfere with the Occupational Safety and Health Administration’s effort to provide such protections.”

—-Ruth Marcus, long-time WaPo op-ed writer and deputy editor of the Post editorial page.

Marcus’s opinion piece, Boris Johnson in reverse: The Supreme Court gives itself what it bans for the rest of us” is unforgivable, and the Washington Post should be excoriated for publishing such garbage. Why didn’t the editors…oh. Right. Ruth Marcus is an editor. The essay would be inexcusable if Marcus were just a typical op-ed partisan loud-mouth, because it is one of those punditry pieces that makes readers more ignorant than they were before they read it. The Supreme Court didn’t “ban” institutions or employers from making their own rules about Wuhan virus precautions as the headline says. It banned a vaccine mandate issued by OSHA, an agency, it concluded, that had no legal authority to issue one.

But Marcus isn’t any ordinary incompetent pundit. She’s a lawyer, or at least graduated from Harvard Law School: I can’t determine whether she ever passed the bar examination or is licensed to practice. She never has practiced, since she entered journalism rather than law after getting her Harvard JD. It’s no excuse. She knows what the Supreme Court does; most Americans don’t. Why is she writing op-eds that falsely pretend that the Supreme Court “extends” protections over anyone or anything unless it deems that those protections are already guaranteed by law? Marcus “reasoned”…

The court’s 6-to-3 ruling Thursday blocking the Biden administration’s vaccine-or-test mandate is yet another example of the elite playing by one set of rules while applying a different standard to the masses — Boris Johnson-ism, but worse. In that case, the British prime minister partied away in defiance of rules imposed on lesser mortals. In this one, the justices declined to extend the same protections to others that they grant themselves.

Not only are lawyers trained to make better analogies than that, opinion writers are supposed to be able to make better analogies than that no mater what their background and training. If they can’t then they shouldn’t get published. Boris Johnson violated a directive that his government issued for the rest of the population. The Supreme Court hasn’t done anything like that. If has forbidden a government agency from abusing its power by forcing businesses to do what is beyond the agency’s authority to require. No government agency could require participants in a workplace to wear business attire, and SCOTUS would end any attempt to do so, but it wouldn’t be “the elite playing by one set of rules while applying a different standard to the masses” for the Court to continue to enforce its own dress code, by its own choice.

Does Marcus really think it would make any sense at all for the Court to announce, “Since we’ve concluded OSHA shouldn’t be able to fine businesses with 100 workers or more to require employees to be vaccinated, the Court will no longer require lawyers appearing before it, and the reporters in the chamber, to test negative and be masked, except when speaking.” That would be a non-sequitur. Incidentally, those requirements are dumb, since speaking is when the danger of spreading the virus is at its highest. Nor does the Court set any standard for masks, which are mostly for show. Well, never mind: more than half the Court is over 65, meaning that they are at high risk if infected, while the vast, vast majority of workers who would have been effected by the banned mandate are under 65. That’s just another reason Marcus’s analogy is ridiculous.

What is Marcus doing then? She is doing what so many desperate progressives and Democrats are doing now—abandoning honesty, fairness, and responsibility and integrity in a desperate effort to rescue Joe Biden and the unscrupulous Democratic Party from losing power and support, as they so clearly deserve to do. They will do and say almost anything; here, Marcus is attacking the Supreme Court as she attempts to give those spreading the false narrative that the SCOTUS is a “threat to democracy” more ammunition to de-legitimize its authority. She has to know her argument is nonsensical, but she is confident that enough readers are ignorant of law and logic that he op-ed will convince more people than it disgusts.

This is a major betrayal of trust. Deliberate efforts by perceived authorities, experts and professionals to abuse their credibility by deliberately making members of the public ignorant and stupid represents a particularly heinous form of unethical conduct. It is one that Ethics Alarms has flagged frequently, yet I do not have a convenient name for the practice. It is worse than lying, or spreading misinformation. Making the public dumber cripples citizens’ ability to function competently in a democracy, while simultaneously softening them up to be exploited by demagogues. It is a terrible, indeed evil thing to do, and any journalist, politician, elected official, lawyer, scientist or other elite authority who engages in it intentionally is, to quote our previous President in one of his most inspired moments, an “enemy of the people.”

Ruth Marcus, with this disgraceful op-ed, qualifies.

Typo Ethics! The Supreme Court Had A Really Bad One, And It Made A Difference

Justice_Pierce_Butler

As regular readers here know, there are a lot of typos, too many, on Ethics Alarms, mostly because I have to write posts more quickly than I’d like, I’m often interrupted, I can’t spell and I can’t type. Thankfully readers alert me to the most egregious (two generous readers particularly), and whenever I catch a typo in an old post, which is often, I fix it (and think “One more down, 701, 566, 211 to go!”). Fortunately, very few typos over the years have resulted in a post saying something other than what I intended, though the occasions where I have left off a “not” or an “un-” have been embarrassing. It all weighs heavily on my conscience and self-esteem, which is why this revelation, regarding a consequential typo in a Supreme Court opinion, was a welcome one.

A slip opinion (in other words, a preliminary opinion subject to revision before publication) was issued in 1928 regarding a zoning dispute. The author of the opinion, Justice Pierce Butler (above), had written, “The right of the trustee to devote its land to any legitimate use is properly within the protection of the Constitution.” But the opinion was misprinted as “The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution.” That was a sweeping statement about the constitutional stature of property rights, and not what the opinion was intended to stand for. But the slip opinion typo slipped under the Court’s radar for a while.

SCOTUS eventually fixed the mistake, so the final version of the opinion published in book form in United States Reports, contains what Butler intended. But the Court negligently and irresponsibly did not draw attention to the change (which was typical at the time), so most judges, lawyers and law professors assumed that the typo version was the law of the land. The mistaken version, which appeared to declare a vastly expanded interpretation of property rights, has appeared in at least 14 court decisions, including one was issued in 2020. It was cited in at least 11 appellate briefs, in a Supreme Court argument, and in countless books and articles.

A new study published in The Washington University Law Review traces the carnage and confusion created by the nearly century-old typo. Michael Allan Wolf, the law professor at the University of Florida who discovered the mistake and wrote the article, believes that while it is impossible to measure how much impact the typo has had in court decisions, there is little doubt that it has served to advance an interpretation of property rights that was never supposed to have Supreme Court support.

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Still Not Scared? How About THIS…?

During a closed meeting on this week, Attorney General Merrick Garland met with 35 state supreme court chief justices to urge their cooperation on limiting evictions. Garland praised the Michigan Supreme Court for giving tenants more time to apply for rental assistance by directing courts to stay eviction proceedings for up to 45 days. The AG also saluted the Texas Supreme Court for helping tenants facing lawsuits by sending them notices with assistance options.

The 35 justices should not have accepted Garland’s invitation (or was it a command?) Those who did accept should have ostentatiously walked out as soon as his purpose became clear. To call the meeting inappropriate is itself inappropriate: this was a straight up violation of the separation of powers, and a breach of professional ethics for everyone involved. Garland works for the President: he’s part of the executive branch. He’s also a litigant or a potential one in the matter he was discussing. The is an ex parte communication, as he well knows.

For the White House’s agents to strong-arm, or attempt to, members of the judiciary to allow the President’s party to pursue an unconstitutional policy is one more step to undo the structure of American democracy. This is a pure IIPTDXTTNMIAFB (“Imagine if President Trump did X that the news media is accepting from Biden.”). Creeping autocracy! Democrats and their puppet media would scream. Defying democratic traditions and weakening institutions! Except, you see, Donald Trump never did anything like this, and if he did, I assume all those good Democrats and progressives among the justices would have used the opportunity to call for impeachment, and the Republican chief justices, having respect for the Constitution, would refuse to attend.

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