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:
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Katz: …William Jacobson joins us right now, Cornell Law Professor, the mind behind the legal insurrection.com, 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
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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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