A judge finally takes on Donald Trump’s frivolity

benfell

Gilead

Donald Trump

Russia investigation


Fig. 1. Photograph by Presidential Press and Information Office (Russia, Kremlin.ru), June 28, 2019,, via Wikimedia Commons Kremlin.ru, CC BY 4.0

One of the things I pride myself on is that if you really manage to really piss me off with a bullshit argument, I just might sit down and rip it to pieces, with my own essay or blog post, all completely cited, all completely grounded in evidence.

And so it has perplexed me that judges have continued to tolerate Donald Trump’s abuse of the legal system.

I’ve had judges as passengers, both as a taxi driver and as an Uber driver. I’ve spoken with them. They are almost invariably intelligent. We might disagree about the (in)justice system, but that doesn’t make them stupid.

So surely, I thought to myself, they see what’s going on with Trump’s frivolous suits. I mean, how could they not?

It appears that one finally took my approach to the problem, slapping Trump and his lawyer with a nearly $1 million fine in the process.[1] It’s about fucking time.

Philip Bump, “A judge rebukes — and punishes — Trump’s false Russia narrative,” Washington Post, January 20, 2023, https://www.washingtonpost.com/politics/2023/01/20/trump-russia-probe-fine-hillary-clinton/

Gilead

Abortion


Fig. 1. Sign at demonstration in front of the U.S. Supreme Court, May 3, 2022. Janni Rye, via Wikimedia Commons, Creative Commons CC0 1.0 Universal Public Domain Dedication.

I suppose it’s possible that the Supreme Court’s marshal really has failed to figure out who leaked a draft of the Supreme Court decision overturning Roe v. Wade.[2]

But my intuition is screaming at me that somebody’s ox would be gored if the marshal revealed the truth. At the time, Eriq Gardner of Puck News wrote,

The strategic upside to leaking isn’t obvious. Conservatives think that a liberal leaked it to influence the outcome. Liberals believe a conservative might have done it to sway a colleague or reset expectations. These theories are certainly plausible, but well short of being self-evident. That means that whomever is taking the risk, there’s no clear-cut payoff. Take the speculation by NPR’s Nina Totenberg that a clerk for one of the conservative justices leaked the draft with the intention of ensuring a majority for overturning Roe. This theory posits 1) that the leaker feared Chief Justice John Roberts would pull a colleague towards his more moderate position, and 2) that this person believed leaking the draft would compel the conservative wing—not wanting to be perceived as bending to public pressure—to hold strong. Sure, this theory of gamesmanship is possible but it also ascribes quite a lot of psychological prowess on the part of that clerk in understanding how a superior would react to a leak. Such a gambit could easily backfire, especially if the source and motivation got out.[3]

I’m just not seeing that “this theory of gamesmanship” really “ascribes quite a lot of psychological prowess,” which is why I suspected that Nina Totenberg was right, not about one of the clerks,[4] but rather one of the justices—probably Samuel Alito, who authored the draft, himself.

Somehow, the justices escape suspicion. Gardner reads much into Josh Gerstein’s phrasing, that “Gerstein has repeatedly been using the word “disclosure” instead of “leak.” It seems a deliberate choice from someone accustomed to the linguistic nuance of law.”[5] But neither Gardner nor anyone else seriously suspects a Supreme Court justice despite the fact these folks are all but unimpeachable and can act with all but certain impunity. If Alito wanted to firm up a conservative majority for the decision he drafted, he could surely find a messenger. As Gardner suggests towards the end of his piece,

[I]f it wasn’t an inside job, where would it come from? That I can’t answer, although the involvement of a national security reporter [Alexander Ward] raises intriguing possibilities. And even if this isn’t a matter of national security, it could be a friend, spouse, or family member of a Supreme Court justice, as one individual who took an almost forensic look at the document itself theorized.[6]

Obviously, I have no proof. But this seems too easy to ignore.

David G. Savage, “Supreme Court says it cannot determine who leaked draft abortion opinion last year,” Los Angeles Times, January 19, 2023, https://www.latimes.com/politics/story/2023-01-19/supreme-court-did-not-find-leaker-of-abortion-opinion

  1. [1]Philip Bump, “A judge rebukes — and punishes — Trump’s false Russia narrative,” Washington Post, January 20, 2023, https://www.washingtonpost.com/politics/2023/01/20/trump-russia-probe-fine-hillary-clinton/↩
  2. [2]David G. Savage, “Supreme Court says it cannot determine who leaked draft abortion opinion last year,” Los Angeles Times, January 19, 2023, https://www.latimes.com/politics/story/2023-01-19/supreme-court-did-not-find-leaker-of-abortion-opinion↩
  3. [3]Eriq Gardner, “Was Politico’s Supreme Court Leaker an Inside Man?” Puck News, May 9, 2022, https://puck.news/was-politicos-supreme-court-leaker-an-inside-man/↩
  4. [4]Eriq Gardner, “Was Politico’s Supreme Court Leaker an Inside Man?” Puck News, May 9, 2022, https://puck.news/was-politicos-supreme-court-leaker-an-inside-man/↩
  5. [5]Eriq Gardner, “Was Politico’s Supreme Court Leaker an Inside Man?” Puck News, May 9, 2022, https://puck.news/was-politicos-supreme-court-leaker-an-inside-man/↩
  6. [6]Eriq Gardner, “Was Politico’s Supreme Court Leaker an Inside Man?” Puck News, May 9, 2022, https://puck.news/was-politicos-supreme-court-leaker-an-inside-man/↩

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