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By now you’ve likely heard about the inexplicable mix of joy and anger coming by way of the Supreme Court of the United States. It depends which side of the polarizing abortion issue that you are on as to whether you’re the one experiencing the deep and abiding elation or the epic levels of angst. But to be honest there is an odd mix of both and on both sides.
Personally, I am elated to think that we may be on the brink of seeing the abortion industry dealt a blow from which it may not recover. What an amazing thing to think that in my lifetime was both the enactment of Roe v. Wade and its abolition of states’ rights on the question of life and - very likely now - the reversal of that landmark decision to once again afford life to the unborn in every state that chooses to enshrine life as a sacred thing. So yes, in that regard I join the millions of Americans that are waiting to see if the Roe decision is truly going to be officially reversed.
By contrast, the angst is heavy, even palpable, on the left side of the political spectrum. So much so that barricades were put around the Supreme Court building on Day One. Despite admonitions that it may in fact be illegal, leftists have been protesting at the personal residences of the Supreme Court Justices in an obvious effort to intimidate the Judicial Branch into changing their opinions. The Biden Administration has effectively encouraged these acts. Alabama’s Attorney General Steve Marshall recently led a group of 23 State Attorneys General in pressing for US Attorney General Merrick Garland to ensure the safety of the Justices and the sanctity of the Supreme Court.
The opposite emotions are true for the manner and means by which we got the information. The actual circumstance that is generating all of the turmoil was that a leaked copy of a draft opinion made it out of the Supreme Court’s hallowed and allegedly leak-resistant walls to a left-leaning news outlet (Politico). This is not just a breakdown in the good order and discipline of one of the three branches of government. This is a potential breakdown in law and order. These rulings are sacrosanct in their formation and, regardless of the fact that I am rejoicing over what appears to be a potential victory in the coming opinion of the Court, I am equally disturbed by the breach of confidentiality.
Supreme Court Justice Clarence Thomas addressed this issue most recently. In doing so he stated, “I do think that what happened at the court is tremendously bad… I wonder how long we’re going to have these institutions at the rate we’re undermining them.” Justice Thomas went on to liken the breach to an infidelity in a marriage, saying, “You can explain it, but you can’t undo it,” and stating further that this violation of trust has the potential to “change the institution fundamentally.” Sobering words from a man in the arena.
I understand the value of confidentiality and the security required to process matters of great national importance. When I was in the service, I had an extremely high security clearance. When I worked in the Pentagon, I was required to attend training and sign documents allowing me to work on classified matters. It was called being “read on,” meaning that I was read on to the details and the gravity involved with maintaining the sanctity of the project. When my tour inside the beltway was complete, I was “read off,” meaning that I was disavowed of any further opportunity to interact with the project. The person who conducted my “read off” ended our time by saying, “If you ever write a book, we have to read it first.”
It’s like the scene from that old weird movie from the late 90’s with Brad Pitt and Edward Norton called “Fight Club.” There was one line that has become part of our pop culture, when the antagonist said “the first rule of fight club is no one talks about fight club.”
Well, supposedly the first rule of working for the Supreme Court of the United States is that no one talks about the opinions of the Justices except the Justices themselves.
There is no law clerk whose name is signed to the opinions rendered by the high court. There is no secretary, staff attorney or custodian of records whose reputation, concurrence, dissent or authorship is ever attached to a Supreme Court ruling. There is no one else on the staff of the entire SCOTUS who is required to be vetted, nominated and confirmed by the Executive and Legislative branches of government except for the nine men and women clothed in black robes. This is the way of things; this is actually the law.
Speculation abounds as to how and why this occurred. Chief Justice John Roberts confirmed that the leaked draft document was in fact real and that he has initiated an investigation. Somewhere, somehow, some way the processes of justice were compromised, and someone needs to be held accountable. If they are an attorney their law career should be ended immediately, and whoever it is should face indictment for theft of government property.
We should not for a second confuse this with a whistleblower who is able to be shielded for having exposed corruption of some kind. Quite the contrary; from what it appears, this judicial decision was being made thoughtfully, deliberately and in accordance with the law and the tenets of professionalism required for the judicial process. There are no whistleblower protections for this circumstance.
The fact that it is an opinion that enrages the political left likely means that the leaker was acting out of political and/or ideological sentiment. The only other grounds would be for financial gain. If the culprit was paid big bucks by Politico or some other operative to get the illicit document for a scoop, then multiple heads should roll. But since Politico can’t sacrifice its protections under the Freedoms of the Press by having funds traced back to it for the purchase of stolen property, then I would say that the political/ideological grounds for doing this is the likely source of motivation. The leaker - the thief - very likely gained access and gave away confidentiality for the sole purpose of trying to inflame the left, just prior to the primary season, just months before critical midterm elections.
This ideological thief likely saw a means to galvanize the otherwise discouraged political left, reengage with political moderates and alienate the political right.
There is some speculation that the motivation was also wrapped up in the hope that crowds of angry protesters at the front steps of the Supreme Court or the driveways of the Justices’ homes might sway one or two of the Justices to change their votes. If the thief thought that this would sway principled Justices from their learned opinions then they are likely even less mature than their illicit actions seem to portray. I would bet that the Justices are going to dig in and stand by their opinion.
No, this was a criminal act done for partisan reasons. Someone decided to talk about fight club to people who aren’t supposed to talk about fight club.
We need to restore the sanctity of the Court. We need to have bipartisan agreement that what happens inside that building can only work if politics and sticky fingers and loose lips stay outside the walls. The law, and the rule of law, is serious business, and the left seems intent on tearing down and smashing anything and everything that challenges their ability to get their way.
Phil Williams is a former State Senator, retired Army Colonel and combat veteran, and a practicing Attorney. He has served with the leadership of the Alabama Policy Institute and currently hosts Rightside Radio M-F 2-5 pm on WVNN. His column appears every Monday in 1819 News. To contact Phil or request him for a speaking engagement go to www.rightsideradio.org The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.