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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 lik
by SllX 5y ago
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.
- verve_rat 5y agoMaybe, 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.
- SllX 5y agoIt’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.
- hirundo 5y agoAnd 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.
- SllX 5y agoIf 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.
- defen 5y agoRoberts 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.
- SllX 5y agoMaybe 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.
- hoseja 5y agoBeing 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.
- ss108 5y ago"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.