Has the SCOTUS sieve finally gotten plugged? For one night, although it seems highly doubtful that Samuel Alito leaked his own draft anyway. The Supreme Court justice made a remote appearance at George Mason University’s Antonin Scalia Law School to discuss statutory textualism.
Remarkably, the subject of the leaked Dobbs draft and the firestorm around it didn’t come up until the final audience question … and even then, obliquely:
But he was a little stumped by the final audience question from a crowd at Antonin Scalia Law School at George Mason University: Are he and the other justices at a place where they could get a nice meal together?
“I think it would just be really helpful for all of us to hear, personally, are you all doing okay in these very challenging times?” the questioner asked. …
“This is a subject I told myself I wasn’t going to talk about today regarding, you know — given all the circumstances,” Alito replied.
After a pause, he added: “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 always a frenetic time as we get our opinions out.”
So it’s all business as usual at the Supreme Court? Robert Barnes and Lauren Lumpkin question that, based on a possible omission from Alito in the discussion:
After detailing the schedule for getting the court’s work done by the end of June or early July, Alito skipped the usual boilerplate that justices tend to employ about disagreeing about the law but remaining respectful and friendly.
Instead, he concluded: “So that’s where we are.”
Was that omission deliberate? That seems like a particularly thin tea leaf, but it’s not hard to imagine that the tension could have ratcheted up between the justices after last week’s leak, and then several competing leaks in the aftermath. It’s the court’s first taste of the kind of politics that usually surrounds both ends of Pennsylvania Avenue, and they’re all but certain not to be enjoying it.
On the other hand, it might still bring them closer together in the short term — foxhole buddies, as it were. And one can hope that the attempts to intimidate justices at their homes will underscore the wisdom of Alito’s warning in the draft Dobbs opinion of the dangers of allowing the courts to continue acting as a super-legislature in crafting policy rather than sticking to their constitutionally limited role.
The court didn’t issue any new orders from its conference yesterday, so they took a pass on their potential Ex parte Quirin option, at least for the moment. The court did indicate that they will release at least one decision on Monday, but whether it’s Dobbs is anyone’s guess. The Associated Press notes that the stressed-out justices still need to wade through dozens of unresolved cases from this term:
The court offered no word on what was discussed in the gathering in the justices’ private, wood-paneled conference room, other than to indicate at least one decision will be announced Monday.
By custom, no one aside from the justices attended and the most junior among them, Justice Amy Coney Barrett, was responsible for taking notes.
The abortion case is among 37 unresolved cases that were argued in the fall, winter and spring. The justices typically issue all their decisions by early summer.
Will they unleash the hounds on Monday with the Dobbs decision? (I’d use a Kraken reference, but you know …) The sooner they release it the better, but according to Politico’s leakers, dissenters hadn’t distributed their written responses yet as of Tuesday. That means that the majority and/or concurrers haven’t had an opportunity to adapt their arguments to the dissents, part of the normal collaborative process. Assuming that report was accurate, it would be a heavy lift to get it done by Monday. Not impossible, but difficult. However, if that’s why they added the decision day, it might explain why they passed on issuing a Quirin-esque order per curiam to get the decision published, even without the opinions.
And maybe they don’t need to rush it anyway. The protests seem to be petering out under the weight of their obvious futility, The Atlantic notes, as well as their obvious silliness:
Yet for all the anger and activism of the past week, most of the protesters seemed to recognize the futility of their actions. Earlier in the day, Senate Democrats had failed to pass a bill to codify a nationwide right to abortion into law. Soon, the Court will issue its official decision on Roe, and a few weeks later, abortion will likely be banned or severely restricted in half of U.S. states. The unprecedented release of the draft Court decision last week had created an unusual opportunity for activists on both sides of the abortion debate: a small window of time to influence the decision. It seems likely that whoever leaked the draft wanted to give outsiders just such a chance to intervene, either to cement the justices’ decision or try to sway a few of them. So far, though, according to Politico, no justices have changed their minds.
Last night’s protest was smaller than the previous ones. The marchers were accompanied by at least five reporters and escorted by what seemed like the entire Montgomery County Police Department. As they marched up Brookville Road, past sweet-smelling honeysuckle bushes and brick houses with imposing columns, Irwin pushed a cart with speakers playing Tracy Chapman’s “Talkin’ Bout a Revolution.” The group wore pink pussy hats and leather jackets and carried homemade cardboard signs that said abort the court. After turning down a side street to chant outside Kavanaugh’s house, they walked a few blocks over to Chief Justice John Roberts’s, where they did more call-and-response, and argued over whether it would be more gender inclusive to use the term uterus or vagina. …
The demonstration, which lasted for roughly an hour, was rowdy enough. Still, the whole thing felt a little desperate, like a last-resort move for people without any other options.
Technically, even this isn’t an option, since it’s against federal law to picket a federal judge’s residence during deliberations. It now looks as though the Department of Justice might finally start enforcing 18 USC 1507 too, so the enthusiasm for these pointless stunts might wane even more now. If so, then the justices can get back to work as usual, and release a fully crafted and considered decision on their own terms. Hopefully, that’s “where we are” now after this paroxysm of mob fascism.
Update: Added in the link to Josh Blackman’s excellent discussion of Ex parte Quirin at Reason’s Volokh Conspiracy.