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Unsolved Leak Benefits “the Sheldon Whitehouses of the world whose political goal is to delegitimize the Supreme Court”

Unsolved Leak Benefits “the Sheldon Whitehouses of the world whose political goal is to delegitimize the Supreme Court”

My interview on the Tony Katz Show about the SCOTUS announcement it hasn’t found the leaker: “To delegitimize it because it’s the one institution in government that has a majority conservative bent to it…. This is a war on the Supreme Court and unfortunately the Sheldon Whitehouses of the world are winning.”

I appeared on the Tony Katz Show on January 20, to talk about the failed attempt by the U.S. Supreme Court to identify the person or persons who leaked an early draft of the decision in the Dobbs abortion case. As you recall, that leak put conservative Justices directly in harms way.

The investigation seemed a mess based on what was publicly known:

In early May 2022, after someone leaked an early draft of a majority opinion authored by Justice Alito in the Dobbs case, detailing the eventual overruling of Roe v. Wade, a fury of threats and violence was unleashed toward the conservative Justices, including a gunman who got within steps of Justice Kavanaugh’s front door and aggressive and likely illegal protests outside conservative Supreme Court Justices’ homes. Democrat leaders like Elizabeth Warren incited the mobs, and the White House refused to condemn the home protests.

Chief Justice John Robert’s appointed the Supreme Court Marshal to investigate. There were hints that the FBI or other experienced investigative agency were helping, but no details of that help have been released. So the investigation appears to be under the control of people who were not professional investigators. Not good.

When the Supreme Court finally announced that it was Unable To Figure Out Who Leaked Abortion Decision Draft it was a huge disappointment, but not a huge surprise.

That was the subject of my interview with Tony:

(if player doesn’t load, click here)

Partial Transcript (auto-generated may contain transcription errors)

(emphasis added)

Katz: …William Jacobson joins us right now, Cornell Law Professor, the mind behind the legal, the, the Supreme Court, what they said, sir, is that they’ve been unable to identify the person the team has to date, been unable to identify a person responsible “by a preponderance of the evidence.” When you read this first, what did their legalese say to you? And then secondly, as a man who, who teaches the law, who practices the law, who engages in cases, what does this say to you?

WAJ (01:05):

Well, when they used that term, that does jump out at you, preponderance of the evidence. That’s like a legal standard. It tells me that they think they know who did it, but they just don’t have enough to out the person. So that’s what it’s telling me. They have a pretty good idea who did it. They just don’t have enough evidence that they’re comfortable going public with it. So that jumped out at me, very unusual to see that. and the other thing is, this was so botched. I mean, they should have brought the FBI in on day one. They shoul this was botch once they didn’t find the person within a week or two, the likelihood they were going to find the person just dropped dramatically. So it was a completely botched investigation.

Katz (02:08):

So as you see it, botched because John Roberts, the Chief justice is incompetent in the administrative part of his task as Chief Justice or botched, because the last thing they wanted to do was out whoever did this, because that would require some kind of punishment and they didn’t wanna be in the position of actually carrying that out.

WAJ (02:29):

Well, maybe a combination of the two. I think that there was an administrative decision made early on to let the Marshal of the Supreme Court, who doesn’t really have the sort of background and doesn’t have the resources, forget background, doesn’t have the resources to conduct the sort of investigation, do it. So administratively, and I’m not sure why that was done. it might be that the Supreme Court, you know, they’re separate branches of government, Supreme Court didn’t want the executive branch essentially rifling through its files. So that might have been part of it. Maybe they thought it would be an easy thing to find out. So it was botched administratively.

And, I think that  in terms of punishment, …. I think it would’ve been important to the court long term to send a message that whether you’re punished or not, whether you’re disbarred or not, it may or may not have been a crime. Whatever happened here, depending how they did it. But you will be found out, so now we have the opposite messages. You get away with it


Katz (05:22):

….  How bothered are you personally by them not finding the leaker or giving up on even trying?

WAJ (05:53):

Well, I think it’s, it’s extremely troubling. I mean, whatever problems the judiciary has and they have problems like the rest of society, the sanctity of chambers is something that’s respected, and the fact that the chambers, meaning the judges, what goes on behind the scenes, now have to wonder when they give a message from one justice to another, is that goning leak when they circulate drafts? ….

It’s not just like two individuals who get affected. You’d like to think they could go through that deliberative process without having to worry that everything you say can and will be used against you later on. So I think it’s extremely, extremely troubling. The only people who I think are in favor of it are people who are completely politically driven, who were in favor of the protests are glad because of the result. It got outed early. So there are some real legal hacks out there who are celebrating this leak. But that’s purely politically driven. And I think, among conservative lawyers, had it been the reverse, I don’t think anybody would’ve been happy if the decision had gone the other way that a draft got leaked. So this is really, to me, a liberal left wing issue, that there’s some portion of those people, not all of them, some portion who view the end as justifying any means ….

Katz: A leak. That also led to the attempted assassination of Justice Brett Kavanaugh, nevermind, a lot of fear and threatening of other justices, uh, the view of the court going forward. I often discuss on the show, argue on the show that faith in institutions is lost. And I am at a loss as to how that returns the John Roberts court. How much faith is lost in their ability to not be political when John Roberts goes out of his way to tell us how much he doesn’t want to be political. Does this not finding the leak, the leak itself affect people’s view of the court going forward?

WAJ (08:30):

Well, you have to understand, ever since there was a conservative majority on the court, there has been a war on the court by many Democrats, and particularly Democrat politicians like Sheldon Whithouse, relentless, endless attempts to delegitimize the court. So this advances their cause.

If you want to engage in conspiracy theories, who benefited by this? The people who benefit, certainly not people who are interested in the substantive issue because it was going to come out the way it came out no matter what. But the people who benefit are the Sheldon Whitehouses of the world whose political goal is to delegitimize the Supreme Court. To delegitimize it because it’s the one institution in government that has a majority conservative bent to it. The rest of government is either completely split or left leaning. The majority of institutions in the US now are left-leaning. And the one that isn’t is the Supreme Court. So this is being celebrated by people like Sheldon Whitehouse, who want to take the one conservative institution left and delegitimize it. And I think that’s a real problem. And I think they’ve been successful so far.

They’ve been, I mean, long before this decision overturning Roe v. Wade, Shelton Whitehouse was attacking people. Look what they did to Brett Kavanaugh. Look what they’ve done to almost every Republican nominee to the court. So this is a war on the Supreme Court and unfortunately the Sheldon Whitehouses of the world are winning.


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Steven Brizel | January 22, 2023 at 9:19 pm

This is an excellent analysis of the state of SCOTUS and the war that Whitehouse and the left are waging on conservatives

Alinsky would advise us to “pick the target, freeze it, personalize it, and polarize it. Cut off the support network and isolate the target from sympathy.” Anybody engaged in freezing Whitehouse? It’s overdue.

    Concise in reply to henrybowman. | January 30, 2023 at 11:10 am

    Sounds rather like the methods employed against President Trump and his supporters, sometimes reflected in the comments on this site.

It’s not ‘unsolved’. Roberts is a coward and doesn’t WANT the leaker known. His whole crap about ‘preponderance of the evidence’ is him weaseling out of it.

They issued not a single subpoena or warrant for ANYBODY’S communications. If they had suspicion who did it, issue a freaking warrant and take their phone and email records and prove it one way or the other.

Roberts is a freaking coward who is terrified that the leaker’s identity as a raging liberal would compromise his precious court’s ‘nonpolitical’ BS.

And of course, as is easily predictable, his cowardice is going to lead to a LOT more leaks in the future. The far leftists saw that there were zero consequences for doing it, and they’re going to do it again as long as Roberts continues his cowardice.

It’s actually pathetic what a slimly little cowardly weasel Roberts is.

    Coolpapa in reply to Olinser. | January 22, 2023 at 9:45 pm

    I’m not arguing your characterization of Roberts, but what law, statute, or subsequent rule was broken that would justify an investigation by any LEO?

      Well, there is their duty of confidentially as officers of the court. After that, the statutes governing the Supreme Court are pretty much whatever Roberts (or any other Chief Justice) says they are. Frankly, I would be surprised if that wasn’t part of their employment agreements. If they told their spouses, they are in breach, much like anyone with a security clearance.

      And Roberts could easily have simply ordered the SCOTUS computers searched, and there’s at least an argument that he could have done the same to the employees’ personal devices. If they refuse, he fires them, again unilaterally.

      Where it gets tricky is when the leaker is one of the actual Justices. The only official way to remove one is impeachment, and that’s as much political as legal.

      jaudio in reply to Coolpapa. | January 23, 2023 at 8:03 am

      I remember when Roberts was appointed, and sometime after it was communicated that he had a posture of preserving the “image” of the Court; it was important that the Court was a trusted institution in his eyes. Since then, even with the best of intentions, the Roberts Court has really obliterated the image and it’s because of the decisions of the man himself. The first big, big blow was the public knowledge that Roberts was with the majority to rule against Obamacare…we could read his draft opinion. He then changed his mind after bullying, and rewrote a draft upholding it, which exposed him as a completely unprincipled softie and nothing more than a legal gun for hire. The second big, big blow was this leak…..the leak was bad enough… put people’s lives at risk and damaged the trust Court members had with each other, but it was still salvageable if the leaker were found and publicly punished. Instead, we have the worst case scenario. Roberts is totally unfit for this job, and I worry about the next big blow to come down the line.

Again: the only place this clown Sheldon Whitehouse belongs in is in a remake of the comedy “Airplane”.

To my mind, it shouldn’t be a big deal. The opinion is what the opinion is, whether you know in advance or not. People should have the courage of their convictions and confidence in their legal research, and so they can defend their votes in any case.

The whole thing should be unimportant.

But I understand that it may not be. Weird pretexts surround courts and tribunals generally, chiefly the “appearance of impartiality”. I don’t want the appearance of it, I want actual impartiality. (If there is bias, I want it exposed for all to see. If that “damages confidence in the system”, good! Improve the system so that it deserves confidence.

We should not be sympathetic to government efforts to put one over on us. But since there’s so much of that going on, I understand analytically (and am disgusted by) the sensitivity over all these matters of appearance. It’s a tell that something’s rotten in the United States.

    DaveGinOly in reply to artichoke. | January 23, 2023 at 1:01 am

    Wasn’t the leaked decision not the final draft? Wasn’t there a worry that it’s early reveal might cause the justices to create a final draft that might differ from what they might have drafted if the leak had not occurred?


Maybe this will help explain what is going on:

We are losing the big war while everyone is distracted with the details and missing the big picture. So far, sunshine is not proving to be the best disinfectant. We need to get out of our own echo chamber traps and face the true reality of what is going on. It is all-encompassing and the worst of it is staged to happen this year.

‘Ordinary’ people in the country find themselves between a rock and a hard place. The Dobbs leak is a fine example. We, and I consider myself among them, understand and believe that the FBI may be the most advanced, competent, and capable investigative organization in the country. We also believe many throughout it and its leadership, are thoroughly corrupt, though the “preponderance of the evidence” may be insufficient to legally support either assumption, the competence or the corruption.

We (the noble we) speaking for myself here, also believe the condition of “the law,” as represented by the laws themselves and how, where, and when they are interpreted and enforced is an unmitigated disaster in this country. If one wishes to either demand or prohibit something, one merely needs get it written into a “law” and presto! – done. Constitutionality seems more an afterthought and inconvenience here, and who’s to say anyway? Voila! The courts. Conforming, or not conforming, makes one a lawbreaker depending who is saying so. I will neither insult the intelligence of, nor waste the time of, any reading this by citing examples. They are everywhere, they surround us.

What needs to be put on trial in this country today is/are the laws themselves. (Talk about “burying the lede.”) Mistrust of our institutions runs deep and the mistrust is warranted. Do we “rely” on the courts or do we “trust” the courts? The words are not interchangeable. Increasingly, we do neither.

Robert Bork, in his excellent “Slouching to Gomorrah, the Political Seduction of the Law”, started each chapter with an anecdote.
One chapter started with the very senior Oliver Wendell Holmes visiting the very junior Learned Hand at the latter’s house for lunch.
Lunch over, Holmes mounted his carriage and began to trot away.
In a burst of exuberance, Hand ran alongside shouting “do justice sir, do justice”.
Holmes jerked the reins, stopped the carriage, stared at Hand and said “that is not my job, I do the law”.
Me thinks a teensy weensy fraction of judges today “do the law” and instead do their personal politics.
And THAT makes the courts illegitimate.

    Too late on delegitimization. That happened looooong ago (1973 was only one step along that path).

      Owego in reply to GWB. | January 23, 2023 at 12:10 pm

      Exactly. Today jurists seem to have a number of laws from among which to choose depending upon the desired outcome. On the occasion one does not present itself there are many laws sufficiently vague and broadly written as to invite personalization. See NY State’s “public spaces” in its most recent attack on the Second Amendment for an example. Absent either of those there’s always the kick-it-upstairs option.

      Further, for those of sufficiently lofty positions on the political food chain, there’s the Obama administration’s legally sanctioned (I believe I recall correctly) approach, to simply pick and choose which laws to enforce and which to not enforce.

        Owego in reply to Owego. | January 23, 2023 at 12:11 pm

        This was in response to FJN’s comment.

        FrankJNatoli in reply to Owego. | January 23, 2023 at 5:47 pm

        Well, in the one example you mention, NYS “public spaces”, those shockingly happen to be where the public ordinarily gathers, therefore is where SCOTUS anticipated Bruen licensees to carry, yet NYS [Democrats] made it unlawful to do so.
        Not coincidentally, such NYS “public spaces” are among the most dangerous spaces of any kind in NYS, thus most applicable to Bruen.
        Democrats do not “do the law”, see Oliver Wendell Holmes quote above.

E Howard Hunt | January 23, 2023 at 7:45 am

I’m waiting for Whitehouse to call a press conference over some damning evidence found in Alito’s high school yearbook.

I think it just proves yet again there are no principled people in DC.

BierceAmbrose | January 23, 2023 at 2:50 pm

Tell me again how The Supremes are not politicized.

The Screaming D’s are openly lobbying for Sotomayor to retire, so their party president can appoint a longer-lived activist judge who will vote the right way for longer on all the issues to come.

This is literally the argument their reporters media operatives with bylines are making out loud; lobbying for; wrangling; threatening their congresscritters and party apparatchiks.

It’s almost amusing how after decades when leftist Democrats clung to the ideal of the Supreme Court because they could use it make end runs around the legislatures, once they lost control of it, they began to try to pull it down as an institution. Since political dominance is almost never perpetual, if at some time in the future, Democrats again want to count upon a left-wing Supreme Court they won’t be able to employ it if they’ve discredited and weakened the institution. Leftists never (and this goes back to the French Revolution) seem to realize that once they’ve knocked down an institutional pillar, they too will never be able to rely upon it again. It seems to go with a leftist cast of mind that it can never picture what might be lurking around the next bend in the road.