The SCOTUS Leak: As My Thoughts Focus Differently From Others - The American Spectator | USA News and Politics
The SCOTUS Leak: As My Thoughts Focus Differently From Others
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Protest responding to Supreme Court draft opinion leak, May 3, 2022, New York City (USA TODAY/YouTube)

Amid all the hyperventilating over the SCOTUS leak, I am hearing and reading analyses I believe are wrong in some cases, miss salient points, and miss the leak’s real ramifications.

We live in a 24-hour news cycle where cable news and other outlets aim to draw constant maximum viewers, clicks, likes, and retweets. Therefore, every event becomes catapulted into Armageddon. Consider: The final decision in the Mississippi abortion-law case is coming out next month anyway. If the Court plans to strike down Roe v. Wade, and if that was going to cause a seismic change in November voting, it was going to happen in another month anyway.

I cannot fathom why all analysts believe the leak will change November voting. The leak will not impact November. Period.

Second, things seem to be earth-shattering, but time passes, and new things take their place. One million illegal immigrants pouring into the country, out-of-control crime in inner cities, first- and second-graders coming home from school talking about penises and vaginas. Gasoline at $8 a gallon by November. Inflation by then over 10 percent, with meat, poultry, and fish at over 20 percent. Maybe Putin drops a small nuke. An Iran deal that funds massive terror. Maybe China invades Taiwan. Biden’s Handshake Ghost and The Rabbit lead an insurrection.

The notion that a leak of a draft court opinion one month before its issue will change American voting five months later is absurd. 

Next — This leak, presumably by a left-wing SCOTUS judicial clerk, will backfire on the Left. It will not galvanize legislation to pack the Court with 15 justices. Likewise, it will not galvanize legislation to make Roe v. Wade the law of the land. To enact any law, the legislation must gain 60 Senate votes. The Senate is split 50-50. Similarly, there are not 51 Senate votes to overturn the filibuster. Joe Manchin won’t do it. He already came under a tidal wave of pressure when Biden tried pumping more trillions into an 8.5 percent inflation economy. The filibuster rule will stand; therefore, no legislation will be enacted by virtue of the leak.

Next — SCOTUS justices are people, too, just like the rest of us. In Shakespearean terms:

I am a SCOTUS justice. Hath not a Justice eyes? Hath not a Justice hands, organs, dimensions, senses, affections, passions; fed with the same food, hurt with the same weapons, subject to the same diseases, heal’d by the same means, warm’d and cool’d by the same winter and summer, as a non-Justice is? If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, do we not revenge? If we are like you in the rest, we will resemble you in that.

If that leak aimed to induce justices to change their votes on the abortion case, consider this: 

  1. The Left subjected Clarence Thomas to the most demeaning racist shaming imaginable in 1991. He publicly was accused of passing along a pubic hair to a woman to gain her sexual favors. He endured a virtual public lynching. Do you think he ever will forget that? I guarantee you he never will. Now, three decades later, the same lynchers and the same Joe Biden remain on the scene, attempting to intimidate him again. In a way, he has been waiting for this day these past 30 years. He will dig in. He is determined that the Left never will get away with that again. It is payback time.
  1. Does anyone here besides me remember what Brett Kavanaugh went through four years ago? Christine Perjury Ford? Avenatti? The lineup of lynchers who conducted that Inquisition in the presence of his daughters and wife and a nation? The cross-examining over whether or not he ever drinks beer? He never will forget that. I guarantee it. Now, the same Left lynchers are attempting to intimidate him again. He and his wife have been waiting a quadrennium for this day. He will dig in. It is payback time.
  1. Amy Coney Barrett just went through brutal anti-Catholic confirmation hearings. Barrett was persecuted, albeit more mildly than were Thomas and Kavanaugh because she is of the fairer sex — which is fundamentally unfair. She, too, is determined that the Left never will get away with that again. It is payback time.
  1. Alito — an Italian Catholic conservative in the Scalia model. No one pushes him around. When Obama used a State of the Union (SOTU) address to stare down and criticize the SCOTUS justices to their faces, Alito responded elegantly by not saying a word — and then never attending another Obama SOTU address. Here, too, it is payback time.
  1. With Gorsuch inherently conservative and pro-life, surrounded by the above four justices for whom this leak now is deeply personal, Gorsuch will be a team player for life.

As for Chief Justice Roberts, a Bush gift, and the three Clinton-Obama justices, they do not matter. It is 5-4 without Roberts and 6-3 with him.

Next — A personal observation drawn from my own life experience as a federal judicial clerk. I hold very strong views. I also try to be a man of integrity. From September 1993 to September 1994, I had the honor and opportunity of a lifetime to clerk for the Honorable Danny J. Boggs in the U.S. Court of Appeals for the Sixth Circuit. That role was almost identical to clerking on the Supreme Court. The Sixth Circuit covers appeals from district courts in Ohio, Michigan, Kentucky, and Tennessee. Appellate judges each get three clerks, and I served alongside Kae and Dan. Each of us was assigned one-third of the judge’s caseload. We read the appellate briefs, the oppositions urging affirming the lower court rulings, and the appellate replies. We studied pertinent trial transcript portions and the cases cited by the two sides in advancing their arguments, and we analyzed it all in “bench memos” we drafted for Judge Boggs, laying out what we understood. We then would meet with Judge Boggs in his chambers (his office) and discuss our memos and thoughts as to how the appeal might best be decided — and we would learn from him. Recall: We clerks were fresh out of law school, while Judge Boggs had been sitting for a decade. In 2003, he would become Chief Judge of the Circuit. He is so profoundly wise — he selected me to clerk, right? — and we learned so much from him. Things we had not considered struck him immediately. I cannot begin to describe how much I learned from him, lessons that have stood me well throughout my subsequent legal and rabbinic careers.

OK. The day of oral arguments would arrive. Attorneys would present in the Cincinnati federal courthouse before the three-judge panel. Afterwards, the judges would meet privately, sharing views and how they would vote. Now that they had voted 3-0 or 2-1, they would agree on which panel judge would be responsible for authoring which opinion. Each judge typically would be assigned to author one third of the week’s opinions. For each opinion he would author, Judge Boggs would assign whichever clerk among us had worked on that case to draft a first version. He would explain the majority’s reasoning, and we would draft away, often working from those earlier bench memos we had presented, now revising with critical changes better reflecting the panel’s thinking. Judge Boggs then would subject those revised drafts to strict scrutiny until he was satisfied.

Next, he would circulate the refined drafts to the other panel judges for their input, After all, a majority opinion of 3-0 or 2-1 speaks as well for at least one other panel judge, if not both. So they have to sign off, too. Likewise, when a different judge would author an opinion in which Judge Boggs joined, it would be circulated to our chambers. He would review it carefully before giving his name to it. I often would be assigned to read it, too, as a second pair of eyes since I was among his pupils. I still remember the draft from another chambers in which the initial text proffered that someone had “cussed out” someone else. The language needed to be more elegant: he had “cursed” him.

Sometimes the drafts would circulate longer, with extra rounds 0f fine-tuning. Only when all the judges were satisfied would the final opinion be issued. It was understood throughout that we clerks were sworn to secrecy. Not only did Judge Boggs rely on that confidentiality, but so did the other judges. My readers know me well. I am animated especially by matters of Jewish concern. One appeal out of Ohio during my tenure concerned the matter of Nazi war criminal John Demjanjuk. He eventually was deported. Amid the judges’ back and forth, one of them expressed certain views that I deemed profoundly anti-Semitic. I shared my umbrage with Judge Boggs. I would have loved to expose publicly that this federal appellate judge had a “Jew issue.” But I held my peace. I knew I was sworn to confidentiality. That was the tradeoff: in return, I was positioned in the inner circle to try influencing a judge’s thinking, could learn from him, could experience the inner workings of the court. But I could not divulge. Even here I offer no clue about the judge I have in mind — not his or her gender, not the state where he or she sat in chambers, nada.

The Babylonian Talmud says at Sanhedrin 97a that Messiah will arrive in an era when people are “dog-faced.” The Rabbis explain: just as a dog urinates in public, shameless as people walk by, so there will be “dog-faced” times when lowlifes lack shame. Is ours that generation: Cardi B and “WAP,” people marching publicly to celebrate homosexuality or killing fetuses, inculcating and infecting children of tender age with thoughts of gender dysphoria and racial disunity, the perversion of transgenderism treated as a civil right? People cuss — uh, curse — shamelessly, even on TV. People smash and grab in broad daylight, justifying stealing televisions by shouting, “Black Lives Matter.” They defy First Responders, throwing garbage at cops and at firefighters. They tear down monuments to great heroes: Columbus, Jefferson, Lincoln, Teddy Roosevelt.

These are dog-faced times when a Nancy Pelosi tears up a presidential SOTU address, a Brett Kavanaugh is subjected to what he faced, a Kamala rises to vice president because she was a consort with the right man. And now when someone violates a solemn code of conduct expected of people associated internally with SCOTUS. If justices cannot securely circulate early preliminary drafts of proposed opinions for others’ comments and buy-in, how can they obtain input and views? 

Perhaps a SCOTUS clerk shared it with a friend, who sent it to Politico. Perhaps the clerk himself or herself did it. That person must be uncovered and ideally treated like a fetus on abortion day.

Read Dov Fischer every Monday and Thursday in The American Spectator (Wednesdays when SCOTUS drafts are leaked) and follow him on Twitter at @DovFischerRabbi. 

To attend any or all of Rav Fischer’s weekly 90-minute live Zoom classes on the Weekly Torah Portion, the Biblical Prophets, the Mishnah, Rambam Mishneh Torah, or Advanced Judaic Texts, send an email to shulstuff@yioc.org (Please note that Rav Fischer’s classes will be on hiatus during May and June).

Dov Fischer
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Rabbi Dov Fischer, Esq., a high-stakes litigation attorney of more than twenty-five years and an adjunct professor of law of more than fifteen years, is rabbi of Young Israel of Orange County, California. His legal career has included serving as Chief Articles Editor of UCLA Law Review, clerking for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, and then litigating at three of America’s most prominent law firms: JonesDay, Akin Gump, and Baker & Hostetler. In his rabbinical career, Rabbi Fischer has served several terms on the Executive Committee of the Rabbinical Council of America, is Senior Rabbinic Fellow at the Coalition for Jewish Values, has been Vice President of Zionist Organization of America, and has served on regional boards of the American Jewish Committee, B’nai Brith Hillel, and several others. His writings on contemporary political issues have appeared over the years in the Wall Street Journal, the Los Angeles Times, the Jerusalem Post, National Review, American Greatness, The Weekly Standard, and in Jewish media in American and in Israel. A winner of an American Jurisprudence Award in Professional Legal Ethics, Rabbi Fischer also is the author of two books, including General Sharon’s War Against Time Magazine, which covered the Israeli General’s 1980s landmark libel suit.
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