I will address the real issue which the mainstream media may not be giving enough focus on. Instead, the main coverage has to do with virtue signaling and grandstanding of political pundits, politicians playing to their respective bases. Corporations doing their thing kissing their customers’ asses as usual. I would ask you to check your bias at the door for a moment, and take off your varsity jacket for a moment, and tell you why I think we all lost a bit due to this leak today regardless of what tribe you belong to.
1- The sanctity & trust within the Supreme Court writing process-
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After oral arguments, the Chief Justice will head a conference on Fridays to hash out the cases heard and try to find a majority opinion to the case. This is all a preliminary function of the Court. Nothing is binding, and the votes may fluctuate during the process. The reason that this conference happens is to aid the Court’s work on writing a clear & decisive opinion on the legal issue raised. After the votes happen on a particular case, If the Chief Justice is in the majority, he has the prerogative on assigning who will write the majority. Otherwise, the most senior justice decides. Since dissenting opinions hold no legal weightings, it is a free-for-all. Although some dissenting opinions are later cited for the overturning of that precedent in future cases. So, most justices decide who will be the best speaker to voice their dissent. Although it is common for a singular justice to also write a concurring dissenting opinion. Meaning, they agree with the dissent’s outcome but may disagree or split hairs with it.
2- The hidden politicking and massaging of cases behind doors- This is the crux of what many people don’t get. In a tight decision, the swing vote has the most amount of leverage. Which is why many times in tight cases the justice that ends up writing the opinion for practical purpose ends up being the swing vote. They get so much leverage that he/she gets an out-sized voice in the court. So this means much horse trading in the form of a paper trail of legal memorandums freely circulated among the justices working out and hashing out the small details of the case. This may sound like trivial things, but the reasoning behind the cases is more important than the outcome of the case. That is because we have in American jurisprudence a concept that has been passed down from all countries that were colonized by the British: Stare Decisis.
Stare decisis means that the precedent of a higher appellate court that reviews errors of laws. In our American system, just like every Common Law system (British), we have a trier of fact (the jury) and a trier of law (the judge). When a case concludes in a trial court, we have due process to the loser of the case in the form of judicial review. Appellate courts are ONLY concerned with errors of law. That means the appellant must raise before the court a mistake in the legal ruling of the case. To do so, the appellant MUST first preserve the issue for appeal in the form of a formal objection noted in the record of the case. Issues of facts are not up for review. PERIOD. The jury is deemed the ultimate arbiter on that account.
3- Breach of that trust- Now we get to the point that I have tried to set-up. This whole process deserves to be a private Court proceeding. This process is something that is done to varying degrees and slight modifications all over the Country in the State & Federal Appellate courts but the purpose is the same: to aid in the concise and prompt guidance that appellate courts are charged with giving to their inferior courts in this system of Common Law. We have an obvious zealous interloper in the form of activism. A naked attempt to influence, and intimidate the swing vote in this case. To put the foot on the scale in the process of Justice. To adulterate, and debase it and put the Judicial Branch as just another junior subordinate of the two other branches instead of being independent of it. Even if the outcome is the same, we will no doubtless see some changes from this draft to the final slip opinion published by the Court.
4- The culprit– I have no idea of who is the culprit, but I will say that any clerk of any of these Justices, no matter how partisan they may be, have the most to lose and risk for this flagrant violation of Justice. Clerking for a Supreme Court Justice is bar none the most competitive spot for any aspiring legal scholar that wishes to leaves its mark in American Jurisprudence. Many of the current and former Justices at some point clerked during their promising legal careers for Justices of the Court.
Its worth is unmeasurable, and the prestige that follows from clerking at the Supreme Court WAS unassailable. Now, depending on how the investigation ordered by the Chief Justice plays out, and the subsequent fallout, this prestige may be muddied by one unfortunate event. Imagine being one of the other clerks that worked his/her ass off to get to this coveted spot only to have your accomplishment be muddied by a fellow clerk that decided to throw it all away. Because IF a clerk DID so leak this draft memo, that person MUST BE persona non-grata in the legal profession. IF so, I fully condemn and give my most strongest FUCK YOU because you have managed to single handily do so much damage to this institution. An institution that Chief Roberts must be Hulk mad that happened in his watch for if he is anything, he is a hardcore believer in the institution that he so adamantly worked to preserve.
If this leak was done by a Justice, then the only real remedy is impeachment. If this is the case, impeachment is the least of our worries. This would indeed be the worst imaginable outcome. One I dare not fathom because even in the most rancorous of disagreements these people in closed doors form long time friendships and bonds that form the fabric of the institution itself. It would mean the foundation of this institution to crumble and give way to distrust, and animosity. It is the most sacred collegiate partnership that is one of the most important pillars of this great Republic and most beautiful experiment on LIBERTY. And even know, imagine how would the justices feel that now everything they say, and write in what is supposed to be a privileged interior Court proceeding may be subject to be leaked. This will be a detriment doubtless because now the whole process is always not as frank and forthcoming to render the best opinion of the Court.
My most profound hope is that a lowly court employee was the culprit. If it is a clerk my most heartfelt condolences to the fellow and future clerks that were/are blameless and now must pay the price. Today, American Jurisprudence was made lesser, and we all as Americans lost. A sad day indeed.
Long live Liberty!
My opinion, and my alone.