This weekend marked what would have been the 50th anniversary of the U.S. Supreme Court’s Roe v. Wade decision granting the right to an abortion. The reversal of that decision in last year’s Dobbs v. Jackson Women’s Health Organization has had a massive ripple effect in the months since it was first leaked, then handed down, reverberations that serve to amplify the court’s existing legitimacy crisis.
The results of the 2022 midterm, for example, and the very obvious failure of a red wave to emerge. There’s also the plummeting trust in the institution and approval of it, a growing sense that it is both too ideological and tipped too far to the right.
There is this: Idaho, following in the footsteps of Alabama and Oklahoma to take Justice Clarence Thomas up on his threat to marriage equality made explicit in his concurrence on Dobbs. A GOP legislator in Idaho has reupped an effort to end the issuance of marriage licenses by the state, and replace them with certificates that can only be issued to a same-sex couple. That’s likely not the only tactic we’ll see from red states to create lawsuit bait that they can take to the Supreme Court to end marriage equality. It will likely become a hobby on the part of red state legislators.
RELATED STORY: In concurring opinion, Clarence Thomas offers a laundry list of other rights he wants to strike down
Meantime, the Dobbs decision itself has created more internal controversy on the court. More precisely the leak of that decision penned by Justice Samuel Alito a month before it was formally handed down, has brought even more scrutiny and distrust to how it handles its business. Chief Justice John Roberts made a very big deal out of having an investigation of that leak, an investigation that found that nobody did it. Or at least they couldn’t determine who did it. Because reasons. Like maybe they didn’t actually look that hard at everybody working at the court.
Careful readers of the investigation reporter, like Jamison Foser, found some careful wording in the report that made it pretty clear the justices themselves weren’t subject to investigation, but that the marshal of the court didn’t want to actually say that in print. The report noted that “82 employees [who] had access to electronic or hard copies of the draft opinion” were questioned, and later on in the report notes that “in addition to the Justices, 82 employees had access to electronic or hard copies of the draft opinion.”
The marshal of the court, Gail A. Curley, eventually released a statement saying: “I spoke with each of the Justices, several on multiple occasions,” and that based on leads followed “I did not believe that it was necessary to ask the Justices to sign sworn affidavits.” Uh huh.
Here’s what the employees of the court had to sit through, as explained in the report: interviews with the investigators in which they were informed they “had a duty to answer questions about their conduct as employees; that disciplinary action including dismissal could be undertaken if they refused to answer or failed to answer fully and truthfully; that the answers provided and any resulting information or evidence could be used in the course of civil or administrative proceedings; and that such information or evidence could not be used against them in any criminal proceedings unless they knowingly and willfully provided false statements.”
Additionally, they had to hand over phone, email, and print records of their work involving the case as well as their court-issued laptops. Some handed over personal phone and text records as well, including billing statements. And they all signed sworn affidavits.
Equal justice for all my ass.
That’s a sentiment that is spreading as the court invites more scrutiny. This report from NBC News explores the harsh treatment peaceful protesters at the court are subject to, versus what those protesting at the Capitol across the street. A night in jail and a criminal conviction for speaking out in court on the one hand, a few hours in police custody and a $50 fine for interrupting a Senate session on the other.
Mark Goldstone, a lawyer who represents D.C. protesters says those who get nabbed at the Supreme Court are treated “more harshly.” Get arrested on the Capitol grounds and the cops “process you and release you,” Goldstone said, but at the Supreme Court, “you are going to spend the night in jail” and likely be prosecuted.
That’s a court out of control, a court that believes it is untouchable. That can’t continue—democracy can’t afford kings and queens in robes.
Election season is already here, and it's already off to an amazing start with Democrats' huge flip of a critical seat in the Virginia state Senate, which kicks off this episode of The Downballot. Co-hosts David Nir and David Beard dissect what Aaron Rouse's victory means for November (abortion is still issue #1!) when every seat in the legislature will be on the ballot. They also discuss big goings-on in two U.S. Senate races: California, where Rep. Katie Porter just became the first Democrat to kick off a bid despite Sen. Dianne Feinstein's lack of a decision about her own future, and Michigan, which just saw veteran Democratic Sen. Debbie Stabenow announce her retirement.