Good Friday Morning! And a round of applause for Predators goalie Connor Ingram. Connor is a 25-year-old goalie who played minor league hockey two weeks ago. Now he’s starting playoff games for the Nashville Predators. He put on quite a show in a losing effort last night. But it was quite an effort from a guy never expected to be in this spot.
I’m writing about other topics this week. Still, I want to put an idea out there for you to think about as economic news continues to pour in and markets are roiled. I recently became acquainted with the “Dollar Milkshake Theory.” When global markets are dealing with inflation and face a risk of recession, capital seeks safe-havens. If everyone has inflation but needs a safe place, the only safe place that remains is the United States. As the dollar gets stronger, it can cause even more inflation — even hyperinflation — in other countries.
When you look at the dollar’s strength — sitting at levels not seen in 20+ years — it’s hard not to see the outlines of that theory forming. Maybe the US and global economy go in a different direction. But it’s an interesting lens to view current events. This week, we’ll be talking all things Supreme Court; links to follow.
Where you can find me this week
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[05/02/2022] White House wants to use food crisis for Green Agenda ends – Conservative Institute
[05/06/2022] Uncertainty rules the economy, which hurts Democratic chances in 2022 – Conservative Institute
The Supreme Court Leak.
I assume you’re all reading this week to see what I have to say about the big Supreme Court story. And I admit, there are some intriguing things in the Court’s 4-4 split in LeDure v. Union Pacific Railroad Company, where there was a tight debate over how to interpret the Locomotive Inspection Act.
I kid, though that is a real case and decision from last week. It’s a law student’s dream of a case, though. The opinion is a single sentence.
In the event you live under a rock, the biggest story in Supreme Court history is that someone leaked a draft majority opinion for Dobbs v. Jackson Women’s Health Organization. Justice Samuel Alito wrote the draft which strikes down Roe v. Wade and Planned Parenthood v. Casey entirely and sends abortion back to the states to decide. Law nerds, you can read that draft majority opinion here.
Three aspects need teasing out. First, For the first time in SCOTUS history, someone has leaked a draft opinion to impact the Court’s judgment. Second, for the first time in history, we can see the internal debate and where it stands on the vote of a case. Third, Alito’s opinion — if it stands — would send us into a Post-Roe/Casey world. What does that mean?
The worst leak in SCOTUS history.
Let’s start with the obvious — this is the worst leak from the Supreme Court in history. That’s not hyperbole. It’s a fact. It was so shocking that for a while, I was willing to believe it was a fake document — even though there’s no doubt when reading it that Alito wrote it. Every Justice has a writing style, and Alito’s is easy to spot.
Chief Justice Roberts confirmed the authenticity of the draft and said in a statement:
To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.
We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.
I have directed the Marshal of the Court to launch an investigation into the source of the leak.
At a second event held for judges, Roberts added:
Chief Justice John Roberts said Thursday that the leak of a draft opinion that would strike down Roe v. Wade is “absolutely appalling” and stressed that he hopes “one bad apple” would not change “people’s perception” of the nation’s highest court and workforce.
In his first public appearance since the leak on Monday, Roberts also said that if “the person” or “people” behind the leak think it will affect the work of the Supreme Court, they are “foolish.”
There are a few interesting notes about these statements. The first is that there’s no evidence they know who did it yet — that could change by the time you read this. But as of late Thursday, there are no more leaks or evidence that we know who did this.
I’m aware of at least two Twitter threads with speculation about who leaked the opinion. Lawyers write both threads, but those threads are speculation without hard evidence. What makes this difficult is that it’s Politico with the leak. Generally speaking, conservatives leak to the Wall Street Journal or Newsweek. Liberals leak to CNN or NPR.
The weird part here is that it’s Politico, but that a national security reporter was involved. Tom Goldstein at SCOTUSBlog noted this oddity:
One small note about the identity of the leaker. There has been some speculation that turns on a supposed relationship with Josh Gerstein, the Politico legal affairs reporter who is the lead author on their story. It seems to me that the leak very likely runs instead through the other reporter with a byline on the story: Alexander Ward, who is a national security reporter. In response to questions from The Washington Post, Politico confirmed that the story was very tightly held from even its own staff. Almost surely, the leaker would have insisted on that confidentiality. I cannot think of a reason that Ward would have been on the story other than that the leaker communicated through him, not Gerstein. And Politico would have felt compelled to give Ward a byline on such a historic scoop.
Why would Politico have a national security journalist involved with this monumental story? The only valid reasons are 1) Ward is the source of the leak, or 2) Ward’s expertise on hacked data was needed in this instance. There’s no evidence of the second option so far, and even Roberts’s statements indicate a leak, not a hack.
Second, Roberts uses words like “betrayal” and “appalling” to describe this leak. He’s right — the leak is a betrayal with the explicit of influencing the Court’s decision. Whoever did this deserves harsh punishment. A clerk should never work in law again, and a Justice should face impeachment.
According to reports, there are approximately 70 people who would have had access to the draft. The DOJ is steering clear at the moment, and I wouldn’t expect anything else until Roberts and the Marshall of the Supreme Court decide to do more.
The leak is significant because if this kind of behavior is allowed to continue, it will undermine the work of the Supreme Court for decades to come. Collegiality on the Court and the capacity to form sound opinions is an absolute must for sound case law. If leaking opinions to get the media to gin up controversies is how cases get written in the future, case law will suffer tremendously.
The internal debate at the Supreme Court.
That brings me to the second issue: we’re watching the debate and negotiations happen in real-time on Dobbs. Based on the leaks, both before the draft was published and now, we know roughly where Dobbs sits on the Court. Alito’s draft was circulated back in February — there is no way that what Politico published is the most recent version. No one expected the Court to issue Dobbs until late May or June. While we don’t know how many drafts have circulated since February, it’s fair to say negotiations are ongoing.
SCOTUSBlog had the best writeup of how all these leaks have interplayed:
Start from the premise that there were actually (at least) two leakers, and three leaks. The first leak was to the Wall Street Journal editorial board last week. In substance, it was that the court had voted to overrule Roe v. Wade, but that the precise outcome remains in doubt because Chief Justice John Roberts is trying to persuade either Justice Brett Kavanaugh or Justice Amy Coney Barrett to a more moderate position that would uphold the Mississippi abortion restriction without formally overturning Roe.
While not formally presented as relying on a leak, the editorial transparently does. The most obvious example is that it predicts that Alito is drafting a majority opinion to overrule Roe, but gives no explanation for that prediction and none is apparent. We now know that Alito did draft that opinion.
The second leak was to Politico. Likely within the past few days, a person familiar with the court’s deliberations told them that five members of the court – Alito, Kavanaugh, and Barrett, along with Justices Clarence Thomas and Neil Gorsuch – originally voted to overturn Roe and that remains the current vote. In addition, the position of the chief justice is unclear. The remaining justices are dissenting.
The third leak was also to Politico. It was presumably – but not certainly – by the same person. Someone provided them with Alito’s Feb. 10 draft opinion.
Note as well what was not leaked. Politico seemingly was not told which justices had joined the Alito opinion. (The fact that five justices voted in December to overturn Roe as a general matter does not mean that all five of them necessarily would have agreed to sign on to Alito’s draft.) And Politico apparently was not provided with a subsequent draft, which ordinarily would have circulated to the court by now – in response to comments from some members of the would-be majority.
Here is what you would conclude is the state of play if you took all the leaks as both accurate and pretty complete (assumptions that, admittedly, are by no means certain). Alito’s opinion probably has been joined by Thomas and Gorsuch. Kavanaugh and Barrett have yet to join – most likely because they are waiting to consider an alternative opinion from the chief justice.
In these circumstances, which ideological side would think it benefits from leaking the opinion? It seems to me, that is the left. I can see conservatives believing that they would gain from leaking the fact that Kavanaugh had originally voted to strike down Roe. They might believe it would tend to lock him into that position. But that was accomplished by leaking that fact to both The Wall Street Journal and Politico.
I agree with this analysis. I’ve gamed it out and read several alternatives, but this is the best version. The theory that a conservative leaked the draft is possible but depends on reverse psychology — a freakout in the media scaring a conservative justice. I think the opposite happens — the freakout hardens the conservatives to go ahead with striking down Roe.
The million-dollar question is simple: how to do that? Roberts wants a middle ground where the Roe/Casey case law stands, but the Mississippi law gets upheld. How you accomplish that technical maneuver is beyond me, and I don’t see the point. The Court needs to leave the abortion debate to the states.
But, the point of leaking the draft is that we know this is the state of play. Where do Barrett and Kavanaugh end up? It also opens the question of who assigned the opinion? There are some differing theories there too.
Long story short, I don’t think Kavanaugh and Barrett flip to the Chief Justice. But what the majority opinion looks like is up in the air right now.
The last point, and I’ll make this one short, is this: the post-Roe world. The simple answer is this: striking down Roe/Casey and returning the issue to the states changes many things at the outset. Overturning Roe/Casey doesn’t mean the Court has banned or allowed abortion — the decision is left to the democratic process.
For states with trigger laws in place, they have the option of immediate outright bans on abortion. Tennessee is one of those states, and if Roe/Casey is gone, the trigger law goes into effect, and abortion is banned. Tennessee also has a Right to Life amendment to the state constitution, which prevents any state rights to abortion.
But the reverse is true in blue states. States like California, New York, and others are likely to pass maximum abortion laws. It wouldn’t shock me if some of them tested out post-nine-month birth abortions — because that’s in the literature. I’ve read it, ethicists of the left have debated it, and it wouldn’t shock me.
In short, the polarization on the topic will explode in ways we have not seen. And because of that, people will come into direct contact with the extremism. I’ve watched the debate develop the last few days. Some Democrats seem to be under the impression that they’ll legislate for “safe, legal, and rare” and beat Republicans on this issue.
The only party that allows the “safe, legal, and rare” mindset is the Republican Party. Democrats do not hold a single centrist view on this subject. And when it’s time to legislate, that will come out. Ending the tyranny of Roe is a beginning, not an end.
Last point: abortion won’t decide the 2022 election. Too many economic events are happening to allow a social cause to dominate. But as the parties push their beliefs, abortion will start taking front and center soon — because actual legislation will be on the line.
Links of the week
Inviting Inflation—and Energy Dependence: A new proposal for a disguised carbon tax comes at a particularly bad time. – Mark P. Mills, City Journal
Indian wheat prices increase by 2-3% after govt says exports will continue – India Economic Times
Snarled-Up Ports Point to Worsening Global Supply Chain Woes – US News and World Report
Shortage of Ukraine Wheat Set to Push Somalia Inflation Past 10%: Horn of Africa nation is battling its worst drought in decades Inflation to surge past 10% without rains, central bank says – Bloomberg
Russian troops held me captive at gunpoint for two weeks in Ukraine. Here’s what I learned: On March 4, Breaking Defense correspondent Reuben Johnson was captured by Russian soldiers outside of Kyiv and taken prisoner. This is the story of what happened next. – Reuben Johnson, Breaking Defense
Twitter Thread(s) of the week
Satire of the week
Thanks for reading!