What's new
Fantasy Football - Footballguys Forums

Welcome to Our Forums. Once you've registered and logged in, you're primed to talk football, among other topics, with the sharpest and most experienced fantasy players on the internet.

Supreme Court Leak A Good Or Bad Thing? (1 Viewer)

Regardless of the case, is leaking Supreme Court opinion documents a good thing or a bad thing?


  • Total voters
    86

dutch

Footballguy
Never thought it was a state secret that the judicial oath contains a pledge of impartiality. But if you want to question an SC judge's veracity under oath, then I can't help you.

“I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”

https://www.supremecourt.gov/about/oath/oathsofoffice.aspx
Religious beliefs are allowed in the Inner Sanctum as are world views, upbringings, etc... Outside the castle SCJ's are not prohibited from participating in the political sphere and of those who do I presume it doesn't come from a lack of input and thought. What defines impartiality?

 
What defines impartiality?
The rich and powerful that the Supreme Court Justices serves more often than not decides.  Since Nixon first reshaped the court.  Sure they throw some crumbs every now and then, but the court serves the rich and powerful elites.   Those that they have rubbed elbows with most of their lives.

 
It’s hard to imagine a worse outcome, regardless of the specific opinion It seems this would be a party agnostic position. Perhaps this has been established, but the implication seems to be that the RvW leak is from a law clerk or similar position? If the leak is because documents were stolen by a hacker, for example, that’s probably a different discussion, but still in the absolutely bad category. In any case, it doesn’t seem like it would ever be anything but a bad outcome to leak draft opinions (or any other documents they’re working on) until the justices are ready to release it as final. It’s not clear to me the meaningful difference between “leaking” and “stealing and disseminating” when it comes to these documents (not a lawyer).

As for the newly appointed justice’s responses, the answer to question 1 was extremely vanilla, but seems fair enough. Displaying “shock” could imply it’s not favorable, perhaps that can be open to some interpretation because at least she commented. Not being able to say something like “we don’t want drafts of decisions that aren’t finalized yet getting out” to either of the two follow ups? That didn’t seem to be going out too far on a limb, maybe there’s some strict impartiality interim norm she’s trying to adhere to, but it seems pretty neutral enough to just say “no good on that” in some way.

During the confirmation and interim period it seems her approach on answering questions that could be controversial for her has basically been fairly short “no comment” type responses. That approach can fail to meet the bar of common sense, she brought that on with her non-answer to the “define the word woman” question. I get the criticism on that front. In any event she’ll have plenty of opportunities once she’s serving to present her opinions.

 

IvanKaramazov

Footballguy
I can't think of a more rhetorical question than if this is "good" or "bad" for the court.  Are to believe there are justices that think it's "good"?  I don't.  Not a single one.  I'm so confident in that, that I'd never even consider asking them.  I'd feel incredibly comfortable in the assumption that the answer is "yes".  

WTF has happened to this country?  We've lost our collective mind.
I would have agreed with you until yesterday, when an actual SCOTUS justice was unwilling to say whether leaks are good or bad.  Now I'm not so sure that we're right.

 

The Commish

Footballguy
I would have agreed with you until yesterday, when an actual SCOTUS justice was unwilling to say whether leaks are good or bad.  Now I'm not so sure that we're right.
It just seems like more of the "gotcha soundbyte" world to me :shrug:   

This kind of question specifically raises that skepticism in me especially when asked on the backdrop of knowing that other sitting justices have basically lied right to the American people.  It's just a bizarre place to draw the line of what is acceptable and what's not IMO.  

 

IvanKaramazov

Footballguy
It just seems like more of the "gotcha soundbyte" world to me :shrug:   

This kind of question specifically raises that skepticism in me especially when asked on the backdrop of knowing that other sitting justices have basically lied right to the American people.  It's just a bizarre place to draw the line of what is acceptable and what's not IMO.  
You're saying that it's bizarre to draw a line at "don't let your clerks leak confidential information to the press?"  

 

The Commish

Footballguy
You're saying that it's bizarre to draw a line at "don't let your clerks leak confidential information to the press?"  
I'm saying it's bizarre to get worked up over this and not get worked up about the untruthfulness of the justices.

And I can't remember if it was this thread or another, but I asked if this sort of thing was subject to FOIA rules.  I believe Sand posted the exceptions.  I remember him being convinced that this kind of info fell under one of the provisions.  I had asked a follow up and no one else responded.  Does anyone know if I can file a FOIA request for stuff like this?  When you say "confidential" do you mean in the legal sense or the circle the wagons and protect the group sense?  Are these briefs marked with classifications like that?  Genuine question...don't know the answer.

 

CletiusMaximus

Footballguy
I would have agreed with you until yesterday, when an actual SCOTUS justice was unwilling to say whether leaks are good or bad.  Now I'm not so sure that we're right.
I think her answer to the question is perfect - she’s politely refusing to discuss it beyond noting that she was shocked by the leak. I understand the public demands instant aggressive hot takes to be proclaimed on all issues of the day and appreciate this one holds herself above that. I would be happy if we never heard from these justices at all, maybe until we read their memoirs decades after they’re gone from the bench.  The main question I have is the context of the interview. I don’t know why she would agree to give an interview at all knowing she’s not going to answer the questions she knows will be asked. 

 

 

IvanKaramazov

Footballguy
I think her answer to the question is perfect - she’s politely refusing to discuss it beyond noting that she was shocked by the leak. I understand the public demands instant aggressive hot takes to be proclaimed on all issues of the day and appreciate this one holds herself above that. I would be happy if we never heard from these justices at all, maybe until we read their memoirs decades after they’re gone from the bench.  The main question I have is the context of the interview. I don’t know why she would agree to give an interview at all knowing she’s not going to answer the questions she knows will be asked. 

 
I don't think it's an aggressive hot take to say something like "Courts rely on a slow, iterative process to arrive at reasoned decisions.  When people leak confidential information about our private deliberations, it makes it harder for us to do our jobs the way we're supposed to do them.  I've instructed everyone on my staff that they are to maintain confidentiality at all times."  

Seriously, what's "hot takey" about this?

 

thecatch

Footballguy
Overall, though, I totally understand why a justice wouldn’t answer the question. All the facts haven’t been presented and it’s not a legal question.
She should have strong views about the Court’s internal confidentiality. Judges of all political views have been united in condemning the leak regardless of the merits of the opinion. This is a very weird response from her.

 

thecatch

Footballguy
I'm saying it's bizarre to get worked up over this and not get worked up about the untruthfulness of the justices.

And I can't remember if it was this thread or another, but I asked if this sort of thing was subject to FOIA rules.  I believe Sand posted the exceptions.  I remember him being convinced that this kind of info fell under one of the provisions.  I had asked a follow up and no one else responded.  Does anyone know if I can file a FOIA request for stuff like this?  When you say "confidential" do you mean in the legal sense or the circle the wagons and protect the group sense?  Are these briefs marked with classifications like that?  Genuine question...don't know the answer.
You 100% cannot file a FOIA request to get correspondence from judges about their deliberations in cases. 

 

ignatiusjreilly

Footballguy
She should have strong views about the Court’s internal confidentiality. Judges of all political views have been united in condemning the leak regardless of the merits of the opinion. This is a very weird response from her.
There is a difference between "she should have views" and "she is obligated to share those views with a reporter." 

Similarly, I imagine she has views on the definition of "woman", but that doesn't mean she was required to play along with a silly gotcha question from a Senator who had zero intention of voting for her.

 

Stoneworker

Footballguy
She should have strong views about the Court’s internal confidentiality. Judges of all political views have been united in condemning the leak regardless of the merits of the opinion. This is a very weird response from her.
Agreed. And of course she's not obligated to share her detailed "views."

But it was a binary question. "Good" or "bad."

And there is no middle ground/complexity/nuance as it relates to integrity of a confidential judicial process.

So not answering a binary question that has only one acceptable answer only begs questions about her character.

 
Last edited by a moderator:

IvanKaramazov

Footballguy
There is a difference between "she should have views" and "she is obligated to share those views with a reporter." 

Similarly, I imagine she has views on the definition of "woman", but that doesn't mean she was required to play along with a silly gotcha question from a Senator who had zero intention of voting for her.
This isn't about the "what is a woman?" thing.  

And nobody is saying that she's under any sort of legal obligation to talk to a reporter, but why would you even consent to an interview if you aren't going to answer a completely predictable question about how the court functions?   

Some of the responses to this topic are really strange and off-point.

 

Joe Schmo

Footballguy
Agreed. And of course she's not obligated to share her detailed "views."

But it was a binary question. "Good" or "bad."

And there is no middle ground/complexity/nuance as it relates to integrity of a confidential judicial process.

So not answering a binary question that has only one acceptable answer only begs questions about her character.
I don't follow; what does Brown Jackson's non-response say about her character?

 

ignatiusjreilly

Footballguy
This isn't about the "what is a woman?" thing.  
A number of people in this thread have made the connection and suggested that the two instances represent some sort of character flaw that goes straight to her qualifications as a Justice. I agree that's "strange".

And nobody is saying that she's under any sort of legal obligation to talk to a reporter, but why would you even consent to an interview if you aren't going to answer a completely predictable question about how the court functions?
I don't know the circumstances of the interview, and I don't particularly care, precisely because I don't think there is any larger significance in her remarks to the reporter.

 

Joe Schmo

Footballguy
This isn't about the "what is a woman?" thing.  

And nobody is saying that she's under any sort of legal obligation to talk to a reporter, but why would you even consent to an interview if you aren't going to answer a completely predictable question about how the court functions?   

Some of the responses to this topic are really strange and off-point.
I read the interview and it was a get-to-know-your-SCJ sit down with the questions regarding the leak and protests perfunctorily thrown in by the interviewer to check the box. It was not a hard journalism piece by any stretch and KBJ rolled with that attitude throughout.

 

Joe Schmo

Footballguy
Evasiveness in response to a binary question that has only one acceptable answer is not a strong character trait.
I'm a lunkhead some times, I still do not get what character flaw you find in KBJ's response. Are you now more concerned with her ability to render judgements and does this response trump her previous bench experience and rulings as a point of reference as to her ability and tempremant?

 

CletiusMaximus

Footballguy
I think her answer to the question is perfect - she’s politely refusing to discuss it beyond noting that she was shocked by the leak. I understand the public demands instant aggressive hot takes to be proclaimed on all issues of the day and appreciate this one holds herself above that. I would be happy if we never heard from these justices at all, maybe until we read their memoirs decades after they’re gone from the bench.  The main question I have is the context of the interview. I don’t know why she would agree to give an interview at all knowing she’s not going to answer the questions she knows will be asked. 

 
I don't think it's an aggressive hot take to say something like "Courts rely on a slow, iterative process to arrive at reasoned decisions.  When people leak confidential information about our private deliberations, it makes it harder for us to do our jobs the way we're supposed to do them.  I've instructed everyone on my staff that they are to maintain confidentiality at all times."  

Seriously, what's "hot takey" about this?


I'm speaking generally about the idea that all public figures are now expected to provide sound-bite burns when speaking on the hot issues of the day, like many or most of our congress now does regularly to feed their fans. Even in this thread discussion we can see the minions from the right being critical of her completely benign non-response that the leak was "a departure from normal order."  She wasn't on the Court when the leak happened and isn't going to be on the Court until the next term starts. She probably has no more information about it than we do. I prefer her non-response over a canned, statement-of-the-obvious response, but I would say there's not much difference between the two. I'll say again I don't know why she gave the interview at all, but maybe it was a pre-scheduled thing

 

IvanKaramazov

Footballguy
I'm speaking generally about the idea that all public figures are now expected to provide sound-bite burns when speaking on the hot issues of the day, like many or most of our congress now does regularly to feed their fans. Even in this thread discussion we can see the minions from the right being critical of her completely benign non-response that the leak was "a departure from normal order."  She wasn't on the Court when the leak happened and isn't going to be on the Court until the next term starts. She probably has no more information about it than we do. I prefer her non-response over a canned, statement-of-the-obvious response, but I would say there's not much difference between the two. I'll say again I don't know why she gave the interview at all, but maybe it was a pre-scheduled thing
That's cool.  I strongly agree with you that I do not want justices to start talking like elected politicians. 

 

Stoneworker

Footballguy
I'm a lunkhead some times, I still do not get what character flaw you find in KBJ's response. Are you now more concerned with her ability to render judgements and does this response trump her previous bench experience and rulings as a point of reference as to her ability and tempremant?
The leak/confidentiality issue is much larger than a single SC judge. As I've mentioned many, many times, it's about the integrity of the SC judicial process. 

So her lack of unequivocal condemnation calls into question whether the abortion leak is one and done, or represents a pivotal point in the unwinding of a sacred institution. How would KBJ handle leaks if she rose to Chief Justice? Her evasive answer leaves one wondering.

I have a very strong view that KBJ improperly handled her response. But it's confined to that since that is the OP. Otherwise she seems like a fine judge. 

 

Mookie

Footballguy
Characterizing this as a "leak" is minimizing what happened drastically.  The entire draft decision was released while it was under deliberation.  That is a massive breach of the Court's historical protocols, which call for a deliberative drafting process that can accommodate shifts in thinking and reasoning.  That's why I voted that this is absolutely a bad thing.

Nevertheless, it's not like the Court's reasoning was surprising as much of the majority's views have been outlined in prior decisions, oral arguments, law review articles, and interviews.  Furthermore, it's not like this "leak" rises to the level of some threat to our safety or national security.  Since most of us value transparency, perhaps the Court will benefit from a bit more early scrutiny.  In thinking about it a bit more, maybe I should have voted  "Can't say".  

 

Mookie

Footballguy
The leak/confidentiality issue is much larger than a single SC judge. As I've mentioned many, many times, it's about the integrity of the SC judicial process. 

So her lack of unequivocal condemnation calls into question whether the abortion leak is one and done, or represents a pivotal point in the unwinding of a sacred institution. How would KBJ handle leaks if she rose to Chief Justice? Her evasive answer leaves one wondering.

I have a very strong view that KBJ improperly handled her response. But it's confined to that since that is the OP. Otherwise she seems like a fine judge. 
Integrity?  It's become a political game like everything else. 

 

thecatch

Footballguy
There is a difference between "she should have views" and "she is obligated to share those views with a reporter." 

Similarly, I imagine she has views on the definition of "woman", but that doesn't mean she was required to play along with a silly gotcha question from a Senator who had zero intention of voting for her.
This is not a legal issue that is open to interpretation or that could possibly come before the Court. This relates to the procedures by which the judiciary conducts its business. In no way is this a partisan thing or something that she needs to play close to the vest. 

 
Last edited by a moderator:

ignatiusjreilly

Footballguy
This is not a legal issue that is open to interpretation or that could possibly come before the Court. This relates to the procedures by which the judiciary conducts its business. In no way is this a partisan thing or something that she needs to play close to the vest. 
No one has argued that she has some sort of legal or ethical obligation not to comment. There's been speculation as to why she might have declined to do so -- she's not a member of the Court yet, she doesn't have all the info, she doesn't feel like publicly weighing in -- but ultimately it doesn't matter. She can do whatever she wants, and comment on whatever she cares to comment on (or not).

 

thecatch

Footballguy
No one has argued that she has some sort of legal or ethical obligation not to comment. There's been speculation as to why she might have declined to do so -- she's not a member of the Court yet, she doesn't have all the info, she doesn't feel like publicly weighing in -- but ultimately it doesn't matter. She can do whatever she wants, and comment on whatever she cares to comment on (or not).
Again, this isn’t something she needs to research. A better analogy would be a reporter asking a congressperson, “should representatives take bribes?”  The unequivocal answer should be “no.”  Her non response or evasive response is weird for someone in her position.  Now, I’m not saying this necessarily speaks to her character or fitness for office or anything like that, but it is just weird. 

 

thecatch

Footballguy
Thanks....any idea which of the exceptions it falls under?
There’s something called deliberative process privilege that exempts government employees from turning over documents containing discussion about their decision making processes. I’m not a FOIA expert, but that or a similar exemption (maybe there’s one more specific to the judiciary) would apply. 

 

The Commish

Footballguy
There’s something called deliberative process privilege that exempts government employees from turning over documents containing discussion about their decision making processes. I’m not a FOIA expert, but that or a similar exemption (maybe there’s one more specific to the judiciary) would apply. 
I had read about this actually.  I wasn't asking if we could FOIA their correspondence in making the decisions.  I was asking if we could FOIA the decisions themselves.  In this case, their "reasons" are in the copy.

 

JIslander

Footballguy
I liked the sentiment earlier, maybe it was IK, about not hearing from the judges until they do their memoirs.  

 

thecatch

Footballguy
I had read about this actually.  I wasn't asking if we could FOIA their correspondence in making the decisions.  I was asking if we could FOIA the decisions themselves.  In this case, their "reasons" are in the copy.
Do you mean the draft decisions?  Those are circulated expressly for the purpose of internal deliberations and would still qualify as protected communications. 
 

Justices have the option of making their “papers” (which includes this kind of stuff) public after they retire. They usually do, but with instructions that it can only become public at a date way in the future - usually after all members of the court who worked with that justice would have also retired or passed away. 

 

Zow

Footballguy
I don't think it's an aggressive hot take to say something like "Courts rely on a slow, iterative process to arrive at reasoned decisions.  When people leak confidential information about our private deliberations, it makes it harder for us to do our jobs the way we're supposed to do them.  I've instructed everyone on my staff that they are to maintain confidentiality at all times."  

Seriously, what's "hot takey" about this?
Don't disagree with you at all. She could have probably answered this way. Alternatively, she chose to decline since she's not on the court yet. I'm all right with that, too, as it's probably just the "safe" answer as she's not even on the court yet. 

I frankly see this as a total non-issue and believe it's being used a red herring. 

 

CletiusMaximus

Footballguy
thecatch said:
This is not a legal issue that is open to interpretation or that could possibly come before the Court. This relates to the procedures by which the judiciary conducts its business. In no way is this a partisan thing or something that she needs to play close to the vest. 


I think you can make the same comment but conclude, "In no way is this a partisan thing or something that she needs to play close to the vest respond to." Since she knows almost nothing about the leak, and its a matter of internal investigation, and she's not on the Court but is joining in a few months, I would say a "no comment" is the more prudent, professionally responsible answer.

 

thecatch

Footballguy
I think you can make the same comment but conclude, "In no way is this a partisan thing or something that she needs to play close to the vest respond to." Since she knows almost nothing about the leak, and its a matter of internal investigation, and she's not on the Court but is joining in a few months, I would say a "no comment" is the more prudent, professionally responsible answer.
What’s the scenario in which a judge or justice could possibly say that a leak in the court’s internal deliberations was “a good thing”?  Why does the answer to the question she was posed require any investigation or knowledge of what specifically happened here?

 
Last edited by a moderator:

Chaz McNulty

Footballguy
91% of FBG respondents believe the leak is a bad thing.

Too bad our newest SC judge doesn't have a similar grasp of the obvious.
Maybe she does.   It's really over the top to get this upset over someone not wanting to comment on something.  It's definitely not news.  I haven't checked, but are Fox, Breitbart, or Newsmax railing on this?

 

jm192

Footballguy
sho nuff said:
Bad in that I want the court to rule on things based on the law...not politics and public perception.
This.  

Someone leaked it hoping to see the decision influenced one way or the other.  That's NOT how it should work. 

 

ignatiusjreilly

Footballguy
This thread has really gone off the rails. IMO @Joe Bryant made two mistakes in his original post: First, asking whether the leak is a "good" or "bad" thing. Clearly, no one really thinks it's good. The more interesting question is what the impact of it is likely to be.

Second, tying it to the KBJ quote. I get that's what inspired you to start the thread in the first place, but it's led to a bunch of discussion of her opinion on the leak, which a) we don't actually know and b) is functionally meaningless. 

As to the actual long-term impact, I view it as a significant escalation of the ongoing trend of the Court becoming increasingly partisan. We'll probably look back on it as a milestone akin to the Bork or Garland nominations, but as with both of those events, it's very much in line with the direction things were heading anyway.

 

PhillipPhoto

Footballguy
Maybe she does.   It's really over the top to get this upset over someone not wanting to comment on something.  It's definitely not news.  I haven't checked, but are Fox, Breitbart, or Newsmax railing on this?
She didnt say no comment, like she did to the protest question. She said, "I cant answer that". 

 

parasaurolophus

Footballguy
She doesn't know anything about the leak so she shouldn't say leaks are bad is pretty good schtick. 

Is it a big deal that she dodged such an obvious answer? No. But that is the only defense. This isn't a big deal even though it is quite obviously wrong and purely political to not answer. 

But this is like a 6 on a scale of 100. 

 

Joe Bryant

Guide
Staff member
This thread has really gone off the rails. IMO @Joe Bryant made two mistakes in his original post: First, asking whether the leak is a "good" or "bad" thing. Clearly, no one really thinks it's good. The more interesting question is what the impact of it is likely to be.

Second, tying it to the KBJ quote. I get that's what inspired you to start the thread in the first place, but it's led to a bunch of discussion of her opinion on the leak, which a) we don't actually know and b) is functionally meaningless. 

As to the actual long-term impact, I view it as a significant escalation of the ongoing trend of the Court becoming increasingly partisan. We'll probably look back on it as a milestone akin to the Bork or Garland nominations, but as with both of those events, it's very much in line with the direction things were heading anyway.


I make lots of mistakes here. No doubt. Most all threads wander and while I haven't been in this one since the first day of starting it, I thought we had good discussion. I know I learned some insight I hadn't thought of before on why she might have said she couldn't answer the question. As always, mileage will vary but I thought we had some good comments. 

 

CletiusMaximus

Footballguy
She doesn't know anything about the leak so she shouldn't say leaks are bad is pretty good schtick. 

Is it a big deal that she dodged such an obvious answer? No. But that is the only defense. This isn't a big deal even though it is quite obviously wrong and purely political to not answer. 

But this is like a 6 on a scale of 100. 


She could've given a non-answer answer like @IvanKaramazov suggested above, and I think that would be fine.  As I noted, I think its better for her to stay out of it as she did.  I took a look at what sitting members of the Court have said since the leak and only found three. We know Roberts issued a very tight-lipped official statement in which he noted an investigation is underway.

Clarence Thomas came out with some pretty strong comments:

“The institution that I’m a part of — If someone said that one line of one opinion would be leaked by anyone, and you would say that, Oh, that’s impossible. No one would ever do that. There’s such a belief in the rule of law, belief in the court, a belief in what we were doing that that was verboten. It was beyond anyone’s understanding, or at least anyone’s imagination that someone would do that. And look where we are, where now that trust or that belief is gone forever.

“And when you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity, that you can explain it but you can’t undo it.” 


Alito was more of a "no-comment":

“This is a subject I told myself I wasn’t going to talk about today regarding, you know — given all the circumstances,” Alito responded, according to the Washington Post. 

“The court right now, we had our conference this morning, we’re doing our work. We’re taking new cases, we’re headed toward the end of the term, which is also a frenetic time as we get our opinions out,” the justice added, noting that the court is scheduled to complete its term by the end of June or beginning of July. “So, that’s where we are,” Alito concluded. 


I disagree with your statement that her refusal to answer is "purely political" - I would say the opposite is true. There's no way she can say something like Thomas did, since she's had no experience on the Court. So really she could just say, "leak is bad" or "no comment."  Just based on this discussion in this thread, I'm starting to think her response - that she "can't answer" the question, might be because she was specifically told not to answer any questions relating to the leak.

 

Users who are viewing this thread

Top