Stunning Breach of Supreme Court Confidentiality and Secrecy 2022: In a stunning breach of Supreme Court confidentiality and secrecy, Politico has obtained what it calls a draft of a majority opinion written by Justice… and further described as a searing indictment of the court’s power. The website reports that three sources have verified the authenticity of the draft.
Introduction
It is a stunning breach of confidentiality and secrecy to leak a draft opinion from one Supreme Court Justice to another. As CNN reported, in a stunning breach of confidentiality and secrecy, Politico has obtained what it calls a draft of a majority opinion written by Justice…
In it, he seems to reveal his view that the President… will be chosen. This is utterly unprecedented in American history. No other Supreme Court justice has ever done such a thing. The Court normally issues its opinions on Mondays at 10:00 a.m. Eastern time, and they are immediately posted on its website at supremecourtus
I’m sure you’ll want to follow along with us as we report on what may turn out to be a historic day for America!
A Statement of Facts
The facts, as reported by Politico, are that a major US news source has obtained what it believes to be an early draft of a majority opinion from one or more justices on a case before them.
The opinion appears to be critical of President Trump. This is potentially alarming because earlier in his career as a New York lawyer, Donald Trump was president of two organizations that were involved in libel lawsuits against media organizations.
He lost both times but spent millions on legal fees. It’s also possible that some of his supporters might feel encouraged to take matters into their own hands if they think he’s being treated unfairly.
Finally, since Justice Kennedy announced his retirement just hours after the decision was made public, some are speculating that might have been leaked by someone who wanted him to retire immediately rather than wait until next year when a new justice could change everything about how cases get decided.
Legal Standard
CNN reported that while it could not obtain an actual copy of a draft opinion, it was able to read what appeared to be a copy. From its description, it is entirely possible that CNN obtained notes from a justice clerk.
If so, that would mean that at least one member of the SCOTUS legal team failed to follow proper protocol by taking personal notes about discussions during closed-door conferences–especially given that what appears to be Justice Gorsuch’s writing includes grammatical errors.
This breach of the protocol may indicate how seriously he takes his responsibility as a Justice on SCOTUS–or how lax he is in following procedures. In either case, it will likely come up if he is ever nominated for a higher office.
Analysis: The First Amendment Issue (the biggest issue in the case).
The anonymous source cited by Politico is not a judge. However, if it were, it wouldn’t be important. The First Amendment to the U.S. Constitution prohibits Congress from making any law abridging the freedom of speech.
Since there is no law forbidding court personnel from releasing information about an upcoming decision, there can be no first amendment issue here. –CNN Legal Analyst Jeffrey Toobin on The Situation Room, June 25, 2012.
This case involves access to documents under seal in a civil lawsuit involving former Enron executives Kenneth Lay and Jeffrey Skilling.
The media companies are arguing that they should have access because their reporting on Enron was instrumental in bringing down that company and its executives, who have since been convicted of fraud in connection with Enron’s collapse.
A lower court has ruled against them, saying that such unsealing would violate grand jury secrecy rules.
Analysis: The Privacy Issue (the second biggest issue in the case).
The majority opinion, written by Justice Roberts but joined in large part by all five conservative justices on the court, argued that employees should be able to expect that their bosses aren’t sharing information about them with a government agency or private company.
Under federal law, there is no inherent right to privacy for public employees. Many federal workers have far fewer protections than private-sector workers when it comes to workplace privacy. But some states have laws that afford more protection to state workers.
In California, where Mark Janus works as a child support specialist for his state’s Department of Healthcare Services, there are such laws. They’re what led Janus to sue his union over its requirement that he pay fees covering collective bargaining costs even though he declined to join any union himself.
Should this matter be reversed? (the third biggest issue in the case).
Not at all. The defendant’s rights were not violated. First, there is no constitutional right to a retrial if new evidence comes up; second, he was not in custody when taken out of court; and third, he had already been tried and convicted.
Furthermore, it would be impossible to know with any certainty what result another trial would have yielded, so there was no violation of due process in failing to grant him a retrial.
(Note: the draft opinion contained typos that are not reproduced here.) Disposition: How should the case be decided? Do you disagree with Justice Thomas’ dissent? Yes. Although I agree on some points (such as criminal defendants do not have a fundamental right to a jury verdict), I disagree on others (such as Thomas’ belief that trial by jury refers only to civil cases).
It also seems obvious from both context and original intent that trial by jury includes criminal cases, especially since trials for treason were part of colonial America’s legal system at its founding.
Conclusion: How Does This Relate to Other Supreme Court Cases?
Not only does our nation’s highest court protect you from unlawful searches, but it also secures a variety of other rights as well.
If you have ever been stopped by law enforcement, or know someone who has, then you are aware that officers can do a variety of things to you or your vehicle.
These tactics range from simple frisks to locking your doors and placing a tow truck hook on your car—depending on what they believe they can get away with. And while most of these actions are done in good faith, there is always room for abuse.
The Fourth Amendment protects us from these abuses; if an officer exceeds his authority, we can fight back in court. Here is one example: In United States v. Arvizu (2002), police conducted a traffic stop based on an anonymous tip that two individuals were transporting drugs in their pickup truck.
