While much of the conservative legal world has moved on for obvious reasons, Shapiro remains frothing mad about one of the recent leaks coming from the Supreme Court:
Nearly two weeks after Politico published Justice Samuel Alito’s draft majority opinion in the term’s big abortion case, we still don’t know who the leaker is. That’s unfortunate, to say the least, not because our tabloid curiosity hasn’t been satisfied but because this is the most serious threat to the Supreme Court’s integrity in living memory.
The leaker must be found to avoid setting the precedent that decision drafts can be leaked with impunity to influence case outcomes, which would threaten public confidence in the Court at a time when societal trust is already low. It’s one thing to disagree with a ruling, quite another to facilitate real-time critiques of judicial decision-making. If chambers confidences can’t be kept, the judiciary will cease to function as an independent institution.
1)One thing you notice about these screeds defending the Court’s omerta is that they never explain how, exactly, leaks (which are noting new) will have the dire impact on the Court’s functioning that they claim. In this particular case, they involve having to have a much lower opinion of Brett Kavanaugh’s intellect than even I do, because they assume he would be surprised to discover that overruling Roe v. Wade would produce a lot of negative reactions.
2)Shapiro claims that “chambers secrecy” must be preserved at all costs, but has nothing to say about the multiple leaks that are definitely coming from conservative chambers with the explicit purpose of trying to influence the decision. I wonder why!
3)It’s telling to see “libertarians” get palpably upset at the idea that anything could stop the Court from giving the green light to states to start a massive regime of coercion and surveillance against American women.
Shapiro then goes on to that this one leaker but not any of the other leakers should face severe professional consequences:
The most likely scenario is that it’s a clerk, one of the three dozen wunderkinds who do the heavy lifting of legal research for the justices. There’s been plenty of speculation about whether it would be someone on the left or the right—the former is more likely, though it was irresponsible to name and shame current clerks without any evidence, as some amateur Twitter detectives have done—but that’s irrelevant to the ramifications. As one former clerk reported Justice Antonin Scalia having said, “If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career.”
To wit, this budding lawyer should face disbarment or, if not yet a member of the bar, preemptive disqualification during the “character and fitness” portion of the bar-admission process. Lawyers have been disbarred for far less.
So, you’re saying that doing bad things — like, say, suggesting that a Black judicial nominee with impeccable credentials is inherently “lesser” to the alternatives — should have professional consequences? You can probably see the punchline coming:
Finally, lest anyone accuse me of propagating cancel culture by calling for professional punishment here, let me emphasize that the offense is not some politically incorrect statement but rather an action that damages the Supreme Court’s functioning and thus the rule of law. Whoever did this must pay for putting another tear into the parchment barrier keeping us from tyranny.
Silly rabbit — professional consequences are for other people!
As for whether the “parchment barrier” is keeping is from “tyranny” as interpreted by the current majority of neoconfederate reactionaries, I have some bad news about that…
…as smintheus observes in comments, the 10,000th spoon when all you need is a knife here is that the Fed Soc outrage over the leaked opinion just takes it as a given that most people who see the Alito opinion will be appalled. They’re not wrong! But “we have a very persuasive case for overruling a widely admired precedent with deep reliance interests, and it is critically important that nobody be allowed to see it” is a hell of an argument.