An actual lawyer and former Supreme Court clerk tells Mitch McConnell to stick it where the sun don't shine, because he doesn't know his ass from a hole in the ground.Timing: This draft was circulated in Feb. If a liberal was mad about it, why wait until April to send it to Politico? The op will be out in June. What are the benefits of releasing it early? And a BIG downside – the focus on the leak itself instead of the opinion.
— Amy Kapczynski (@akapczynski) May 3, 2022
Liberals have lived for years trying to eke out a sentence here or there in SCOTUS opinions to make these conservative decisions less terrible. Why leak something and undermine that whole strategy?
— Amy Kapczynski (@akapczynski) May 3, 2022
I pause to interject this is in line with my thinking. The opinion is so extreme that "sanding off the rough edges," as someone on MSNBC said this morning, seems impossible now. Bug? Or feature? Any backing down from it will indicate the Court lacks the courage of its convictions. Especially since this opinion opens the door to undo almost everything the Warren court did. That alone will justify the leak; and the point of the leak is that the Court can't afford to back away from this diatribe presented as a sage legal opinion. Consider the reaction of Ted Cruz:It talks about fetuses being people as a matter of ancient law (teeing up idea that fetuses are constitutionally PROTECTED – no abortion anywhere as matter of conlaw.) And its arguments undermine all of SCOTUS’s gay rights and contraception decisions. pic.twitter.com/NEkyEwyeom
— Amy Kapczynski (@akapczynski) May 3, 2022
"The reason it was leaked is some, presumably, left-wing law clerk wanted to put political pressure on the five justices that are presumably in the majority right now," he added. "You mentioned an FBI investigation. I hope there is a serious one and I hope whoever is responsible, not only is fired instantly, but is prosecuted and serves real jailtime for violating the confidences of the Supreme Court."
Maybe Roberts says abortions ok in some time frame, preserving exceptions for the life of the woman, etc. And Kavanaugh is tempted by it – maybe not enough to vote for it, but enough to demand some changes to the Alito opinion.
— Amy Kapczynski (@akapczynski) May 3, 2022
"Still waters run deep" is not always a compliment.Leaking is much more of the style of conservatives right now. Think about what Justice Thomas is doing as a model for a clerk here – making a mockery of the Court’s recusal rules re. his wife’s role in the Jan 6 coup attempts. https://t.co/L5eyKkW1t8
— Amy Kapczynski (@akapczynski) May 3, 2022
Conservatives also know that the leak will be blamed on the left, distracting from how devastating the reversal of Roe will be to the credibility of the Court. The career consequences of someone found out are far smaller on right than left, too, I’d wager.
— Amy Kapczynski (@akapczynski) May 3, 2022
I still wouldn't put it past a justice. The Roe conclusion was leaked by a clerk (most likely), but not the opinion itself. I can more easily see a Justice leaking this nentire opinion, than a clerk doing it on her/his own initiative. Justices hold office for life. What're ya gonna do to them?But I'm with @steve_vladeck and @joeyfishkin about what likely happened here. (Though I think done by a clerk, not a Justice). Occam's razor. It just makes sense.
— Amy Kapczynski (@akapczynski) May 3, 2022
Linda Greenlaw, one of the better observers of the court was recently interviewed (and despite several tries I can't find it) about Roe and the coming decision. The interviewer brought up Roberts as a moderating force for the other 5 conservative judges. She dismissed the question, she said Roberts wants to get to the same place as the other five, just at a slower pace. Anyone holding out hope Roberts will save anything is a fool.
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