The Supreme Court’s report on the Dobb’s leak was met with derision and mockery. Why? Because the report stated the Marshal of the Court interviewed 97 witnesses—but made no mention of interviewing the justices. The interviewees (but not the justices) were required to provide an affidavit affirming that they did not leak the draft of the Dobb’s decision. The failure to interview the justices created a strong inference that one of the justices was the source of the leak and that the decision not to interview the justices was an effort to avoid learning the truth.
In an effort to rebut the strong inference that a justice leaked the draft, the Marshal of the Court issued a risible press release on Friday that was beneath the dignity of a Court already held in low regard. To answer the question of whether the justices were interviewed, the Marshal issued the following statement:
During the course of the investigation, I spoke with each of the justices, several on multiple occasions. The justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the justices or their spouses. On this basis, I did not believe that it was necessary to ask the justices to sign sworn affidavits.
Let’s get this out of the way: The one thing that the press release does not say is that the Marshal interviewed the justices as part of the investigation. Instead, we are told that the Marshal “spoke” to the justices as part of an “iterative process” in which they “asked and answered questions.”
The information content of the first two sentences of the press release is zero. The statements are so broad as to be meaningless. Examples abound:
Dad to son: Did you take my car last night to go joyriding with your friends?
Son: I spoke to my friends, and we engaged in an iterative process in which they asked questions and answered mine.
Dad to daughter: Did you take the bottle of gin out of the liquor cabinet and drink it with your friends behind the garage.
Daughter: I spoke to my friends, and we engaged in an iterative process in which they asked questions and answered mine.
American public to the Marshal of the Court: Did you interview the justices?
Marshal of the Court: I spoke to my employers, and we engaged in an iterative process in which they asked questions and answered mine.
In each of the above examples, the answer consists of quibbling, mental reservation, and distraction. They provide no information about whether the son took the car without permission, the daughter took the gin out of the liquor cabinet, or the Marshal interviewed the justices.
Did the Marshal of the Court really expect that anyone would believe that her vague description of an “iterative process” was an “interview”? Sadly, the headline writer at the NYTimes took the bait, breathlessly reporting that Supreme Court Justices Were Interviewed in Investigation of Leaked Abortion Opinion - The New York Times.
The headline writer at the NYTimes had one job—to address the question of whether the justices were interviewed—and got it completely wrong!
In the second part of the release, the Marshal defends her decision not to ask the justices to sign an affidavit that denied responsibility for the leak. She justifies her omission by saying that she investigated “all credible leads, none of which implicated the justices or their spouses.”
Oh, really? What about the widely reported allegation that Justice Alito and his wife leaked the result of the Hobby Lobby decision? Was that not “credible” enough to justify asking Justice Alito and his wife to sign affidavits? Or did the Marshal conveniently decide the lead was not “credible” in order to avoid putting Alito on the spot?
More to the point, the Marshal did not have “credible” leads that the 82 employees she forced to sign affidavits were the source of the leak—but she made them sign affidavits merely because they had access to the draft opinion. All nine justices had access to the draft but were not forced to sign affidavits.
Why the different treatment for the justices? The question answers itself: the Marshal (and the justices) did not want to force the justices to deny under oath that they were the source of the leak.
Prior to the Court’s report on the leak, I was agnostic as to whether the leaker was a justice. After the report, the strongest inference is that a justice was the source of the leak. After all, every other employee with access to the report swore under oath that they did not leak the draft. That leaves only the nine justices who have not made a statement under oath denying their responsibility for the leak.
The leak of the draft opinion was a debacle for the Court. It is difficult to imagine that an inconclusive investigation could make that debacle worse. But John Roberts has found multiple ways to do so. The Court’s reputation and legitimacy are in free fall. John Roberts is not up to the task of saving the Court. If he had the best interests of the nation and the Court at heart, he would resign and allow Biden to appoint a strong leader who can rehabilitate and reform the Court.
I do not usually publish on Friday evenings, but I wanted to open the Comments section over the weekend for paying subscribers. There is much more that I could address in the newsletter, but my wife and I have significant family commitments over the next four days, so I swore I would keep this newsletter brief.
If you are looking for topics to discuss, there are many worthy candidates, including the arrest of three active-duty military personnel for involvement in the January 6th insurrection, Trump’s voluntary dismissal of the Florida lawsuit against NY Attorney General Letitia James after his sanctions award yesterday from a federal judge in Florida, and new voter suppression laws in Ohio. And then there is this op-ed by David Leonhardt: Why Are Republican Presidents So Bad for the Economy? - The New York Times. Per Leonhardt:
A president has only limited control over the economy. And yet there has been a stark pattern in the United States for nearly a century. The economy has grown significantly faster under Democratic presidents than Republican ones.
It’s true about almost any major indicator: gross domestic product, employment, incomes, productivity, even stock prices. . . . The gap “holds almost regardless of how you define success,” two economics professors at Princeton, Alan Blinder and Mark Watson, write. They describe it as “startlingly large.”
First, it’s worth rejecting a few unlikely possibilities. Congressional control is not the answer. The pattern holds regardless of which party is running Congress. Deficit spending also doesn’t explain the gap: It is not the case that Democrats juice the economy by spending money and then leave Republicans to clean up the mess. Over the last four decades, in fact, Republican presidents have run up larger deficits than Democrats.
That leaves one broad possibility with a good amount of supporting evidence: Democrats have been more willing to heed economic and historical lessons about what policies actually strengthen the economy, while Republicans have often clung to theories that they want to believe — like the supposedly magical power of tax cuts and deregulation. Democrats, in short, have been more pragmatic.
Leonhardt’s op-ed is filled with helpful charts and additional analysis to support his thesis. If you have access to the online edition of the NYTimes, I highly recommend Leonhardt’s analysis. (This free link may work for some of you: Leonhardt op-ed 2023-01-20.) Leonhardt’s analysis confirms what we all feel in our bones: When Democrats win, everyone wins.
Have a good weekend, everyone! Talk to you on Monday!
I had lunch today with a group of lawyers (at a professional association meeting); during the conversation prior to the program, there was discussion of the Supreme Court’s “leak” investigation. Everyone who spoke recognized it as lacking credibility, even with the so-called independent “blessing” of the Chernoff group. It was apparent to everyone at the table that the report, by implication, accused a justice/spouse of the leak. Logic certainly supports that inference too.
I agree with you that the chief justice should resign for the good of the Court as well as the country. So should the justice implicated in the report. The “cover up” effort does not pass the “smell test.”
i've always marveled at how George W Bush gets a pass in so many ways: he doesn't speak out against the MAGA movement, he appointed Roberts and Alito who have proven to be terrible choices--let alone the lying that led to the Iraq War and so much suffering there. Yet he's treated by the media as an amiable and insignificant figure. I knew when he put forth Roberts that we were in real trouble, with his wife an anti-choice activist. "Reality is what we say it is," said "Bush's Brain," Karl Rove.