Supreme Court Leak Reminds Us That Lawyers Are All Useful Idiots
Attorneys scramble to make reproductive rights story about anything but reproductive rights.
Lawyers missing the point… again.
After Politico published a leaked draft of Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health, normal people started talking about the implications of upturning half a century of settled precedent and what the decision means for the future.
Lawyers, on the other hand, bemoaned the idea that Prometheus might have stolen fire from its arrogant deities:
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Yes. The “gravest, most unforgivable sin” is offering the barest transparency to an institution that many of us have long argued needs to have all its shrouds ripped away. But instead, lawyers are lining up to throw weight behind an unelected Star Chamber with the power to radically alter the fabric of American society without any oversight or accountability.
From Mediaite:
CNN legal analyst Jeffrey Toobin called the leak of a purported decision by the Supreme Court to overturn Roe. v. Wade “shattering,” and wondered if the institution would ever recover from it.
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The leak… not the opinion itself trashing basic principles of stare decisis. It’s the leak that matters. If the Supreme Court could bounce back from deciding the United States presidency by a 5-4 vote, it can survive someone leaking a draft that said what everyone expected it to say anyway.
Remember when Amy Coney Barrett bald-faced lied about how the Supreme Court isn’t an unchecked political actor because we can follow their transparent reasoning? This was a lie as the Court was in the midst of spitting out substantial shadow docket orders without full briefing or signed opinions, but it’s also significant to this “leak.” Everyone knew exactly what was coming since at least December. Why shouldn’t the public have a sense of the decision-making process? Other political actors have to conduct their business in the public eye — provided it’s not classified, of course — why not these?
It’s a really good question that lawyers are just going to ignore while they play up how gobsmacked they are about the leak. Because lawyers get off on this stuff. No, I’m not talking about Toobin here — I mean they get off on peddling “secret knowledge” to prove they’re the Court knowers that everyone else isn’t. Anybody out there can tell you that this opinion is going to plunge woman in Republican-dominated states further into poverty, but only a #ATTORNEY can tell you about the sanctity of Alito’s relationship with Kagan’s clerks or whatever.
Mystifying the Supreme Court as some arcane monastery instead of the ultimate FedSoc policy meeting — Chick-fil-A will be served! — is just lawyers indulging in their own self-importance.
One lawyer, Professor Rick Hasen correctly diagnoses where all this mysticism ends:
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Breach of secrecy norms? Will anyone really try to flog that as the real takeaway? You’d better believe the worst people on the Internet are ready and willing to flood the zone with this commentary.
Did I say, “worst people on the Internet”? Dadgum, that’s Jonathan Turley’s music!
I’d have thought “original sin for judicial ethics” would be adjudicating with open conflicts of interest. But maybe I don’t understand the originalism of original sin — anyone have a 370 CE copy of Funk & Wagnalls so we can get to the bottom of what this means?
But that’s the thing — guys like Turley are increasingly recognized as the know-nothing hacks (political double entendre entirely intended) that they are. They can’t get themselves in front of the mainstream on their own. But if they can bank on otherwise reasonable attorneys to uncritically echo their “norms”-based rhetoric, they can drive their narrative down everyone’s throat.
This is just f**king dumb. This isn’t a memo, it’s a draft of a future public opinion. Alito wants this to ultimately be public. If he doesn’t get his way, this will be the basis of his dissent. The creation of a “threat to the life and limb” of justices — based on pure conjecture — is inevitable when the final opinion comes out.
This is where lawyers really are the most useful of idiots. The media puts a higher threshold on what I’ll call for lack of a better term “link” claims than they do “impact” claims. Ben Shapiro claiming that the leaker is part of an Antifa plot to murder the Supreme Court will get laughed out of the public sphere. On the other hand, some non-partisan legal analyst says “this is a serious breach of norms the Supreme Court has in place to protect their deliberative process from overreaction” is more than enough invitation for the media to plug in Shapiro’s fever dreams about this being a “threat to the life and limb” of the justices.
Try it out… read some “roundup of reactions” article and see how this Tweet (or ones like it) slide into mainstream coverage but only AFTER some more level-headed analyst has set the table somehow, allowing readers to logically connect the dots and thereby impute credibility on Shapiro’s otherwise baseless claims. Media literacy… it’s fun!
Ben Shapiro’s whole act is transparent but weirdly effective on the stupidest people around. In a nutshell, he’s not really worried about this leak, he’s laying the groundwork for the next time someone calls him out for making up complete nonsense about Ilhan Omar to rile up his lunkheaded militia followers, he can say liberals created a dangerous situation for Samuel Alito by leaking *checks notes* Alito’s actual words. It’s all a scam.
But right-wingers are totally here for it. Like Sullivan & Cromwell’s Jeff Wall:
Or this clumsy bothsiderism from the guy fresh off informing us that Black women aren’t fit for the Supreme Court:
[UPDATE: This Tweet has been deleted sadly]
Indeed “norms” are binary, and “circulating a draft opinion” is the equivalent of “fomenting an insurrection attempt.”
This commentary would be the height of stupidity if it weren’t calculated cynicism. He almost surely knows that this isn’t in the same ballpark as the rest of the “loss of norms” discourse. He even flags “court-packing,” which I’ve historically opposed, as if it struck out of the clear blue as opposed to growing out of the fact that five of the nine justices were appointed by presidents that most Americans voted against (though Roberts and Alito entered in Bush’s second term, though he won that largely on the tails of the incumbency he secured through Supreme Court machinations), one got on the Court after the Senate openly defied its Constitutional command to provide advice and consent by just… not having any hearings for a year and another got rammed on the bench days before an election.
I never wanted Court expansion, but after abuses have piled up it’s getting harder and harder to argue that it’s not the only way of bringing the Supreme Court back to some semblance of its constitutionally designed role as an apolitical lagging indicator of the nation’s relationship with the Constitution.
But I digress. The point is, Hasen is right and all the mental energy spent talking about “the leak” as opposed to “holy hell, the Supreme Court just said that abortion and gay rights and privacy aren’t real rights” is wasted.
Oh well, what’s the top story on Law.com right now…
We’re all doomed.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
