Comment by SllX | Hacker News Reader

Comment by SllX | Hacker News Reader

Parent Full thread

Sarah Isgur and David French of The Dispatch ran through basically all of the possibilities and basically came to the conclusion it could be anyone but most likely it was just a stupid young clerk that never had a real job (University to Law School to probably at least two clerkships before a SCOTUS clerkship) trying to play politics and not having a strategy, or at least a good strategy for what they might accomplish here. Theoretically this benefits Republicans, conservatives and the religious right more by dropping this bomb early, but that’s just speculation about future possibilities and we’re talking about judicial clerks, not political operatives. Given that applies to mostly if not all of the clerks under any of the Justices, all you’re really doing is reading soggy tea leaves.

Sarah also pointed out that the Chief Justice has, technically, firing power over all of the clerks under any of the Justices, and there’s maybe a case to be made for him exercising that power here to fire all of them if they cannot definitively prove who it was after investigation in order to defend the integrity of the Court’s deliberation process. If they can at least narrow down that it was in fact a clerk and not some other staffer and definitely not a Justice (probably wasn’t, but still better to go through the investigation), then I can’t say I would disagree with that outcome.

"and there’s maybe a case to be made for him exercising that power here to fire all of them if they cannot definitively prove who it was after investigation in order to defend the integrity of the Court’s deliberation process. If they can at least narrow down that it was in fact a clerk and not some other staffer and definitely not a Justice (probably wasn’t, but still better to go through the investigation), then I can’t say I would disagree with that outcome."

That would be a batshit bonkers move, frankly.

Luckily, that doesn't seem to be Roberts's style.

Maybe, but while the intention wouldn't be to punish these people, the outcome would amount to collective punishment. Collective punishment is bad, like so bad it is a war crime, if done during a war.

It’s the loss of a job with the nearly guaranteed promise of a new one. The hiring bonus for a former SCOTUS clerk presently going into a private firm is >$400K. It would be a terrible outcome to be sure, but we are a long ways away from what you can even think to call a war crime and the integrity of the Court is vastly more important to me than the integrity of the jobs of its staff.

By the way, the June-July recess is about when clerkships turnover and they choose to stay on for another term (at the Justice’s discretion) or move on in their careers. Clerkships aren’t forever.

And such a clerk could be particularly welcomed by an ideologically aligned firm, but less so if they have been disbarred as a result, which seems to be a real possibility. It could be a great boost to a media or political career, but not so much for a legal career.

If it’s a mass firing, do you think disbarring would be likely for any or all of them?

I think it’s incredibly likely if they determine exactly who it is and that person would deserve to see their career ended and at that point you would just fire that one clerk; but I don’t think it is likely at all if they were fired en masse because the Court couldn’t determine the exact culprit. It’s not great, but we’re still talking about a group of people who know how the Court operates because they worked there recently, and I think it would be difficult to make a case for disbarment for the whole lot if the Chief Justice actually did exercise this option.

Roberts should simply have the FBI ask each clerk if they leaked the document.

If the clerk says yes, fire them.

If the clerk says no, they are either telling the truth or committing a felony. Would the real leaker risk catching a felony charge if they don't know whether the FBI actually knows the identity of the leaker?

If the clerk refuses to answer, apply "adverse inference" and fire them, because they are either the leaker or are hindering an investigation.

Maybe I haven’t made it clear from this comment chain, but I view Sarah’s proposal as a last resort if investigatory measures fail, as I think Sarah did too when she presented it. Right now the Court is conducting its own investigation and while Roberts could bring the FBI in, he can’t control how they conduct an investigation and it would present its own dangers to the Court itself.

True, he can't control but that's federal law enforcement 101 - "get the suspect to lie to you".

Or, you know, maybe, they would know their rights and plead the fifth, as any idiot making that far into laws school would do?

They can absolutely plead the fifth. But Roberts could also fire them for refusing to answer.

The FBI is the wrong actor. The US Marshals is the appropriate federal agency to deal with court security.

Who says firing is the right option, vs some lesser disciplinary action?

Is the leaker the fall guy for somebody else?

An investigation of what? According to Legal Eagle's short (https://youtube.com/shorts/vUqsegzWbKo), the leak is not illegal.

Let’s just grant the point for the purposes of this conversation (which is not to say I agree, this has not ever actually happened before but could be considered theft of government property, but just for this conversation we’ll set that aside): would you want to keep someone on staff that violates your trust for politically motivated reasons?

It’s not just the current Justices and staff that want to know either. There has never been a before-the-fact wholesale leak of a draft opinion, but there have been months after-the-fact leaks that saw the leaker completely shunned by the community around SCOTUS independent of political affiliation or judicial philosophy from former and current clerks to the Justices themselves. They keep it tight, and clerkships, SCOTUS or otherwise, are usually the ultimate networking opportunity. Simply put, it was unprofessional and everyone involved has an interest in determining who it was no matter what the political motivations were or the hoped for outcome.

I can’t see any blue state bar taking action on this.

This may be your own prejudices here, since Bar orgs are almost exclusively about fitness and good practice, not political point-making

Not recently: https://businesslawtoday.org/2020/10/anti-racist-speech-acti.... In particular the ABA recently adopted a vague and sweeping model rule of ethnics that could be construed to, for example, prevent Muslim lawyers from advocating against policies on same sex marriage inconsistent with their religion.

It is an extreme departure for a profession that historically prides itself on protecting the political process over making substantive judgments—a profession where the representation of nazis and murderers and terrorists in the name of access to the legal system for all is exalted.

In the end only Vermont’s bar, adopted the rule (even Illinois rejected it: https://www.2civility.org/isba-assembly-opposes-adoption-8-4...). But that just seems to me to be a minor bump in the road before the current crop of graduates from elite schools start replacing the folks in those bars as well.

I hear lot of noise about integrity of the court.

My opinion is that if you have some papers that would hurt your integrity to come out, then their release is never the problem, it is the papers in the first place.

Doubly so in the case of a government agency.

There has never been a leak like this in the court’s history; and the way the court works is that an opinion is not an opinion of the court until the moment it is handed down. This is a first draft from February while the court is still in its deliberative process and it has the potential to undermine the trust between Justices and between Justices and their staff not because of the contents of the draft—each and every Justice already had access to it—but because a leak happened at all and it was a politically motivated leak.

So yeah, this matters, and so does the state of the court’s integrity not because of what the general public thinks, but because if the court is to function at all, the court itself needs to believe in its own integrity.

You have not really given any arguments. Please tell me why this should not have been routinely published.

I am aware that this is not the finished product, but I think it is clear to everyone that it is not.

Being a warcrime isn't about the level of badness, just the level of inconvenience to the warring nations and actual utility of the outlawed practice. Chemical weapons were outlawed only after they proved utterly impractical, for example.

Reply on news.ycombinator.com