DOROTHY PHILBIN | CNBNewsnet
GLOUCESTER CITY, NJ--At this point I'm sure that everyone has heard that "someone" leaked a draft of a Supreme Court decision written by Justice Samuel Alito. Although this was about the Roe v Wade case, it really doesn't matter. Hard as it is to believe from television coverage, the real issue is The Constitution of the United States.
Forget 99% of what you see and hear. Better yet, turn off your television when the news comes on. There is a lot of "misinformation" or "fake news" if you will, going around. Most of it is just people venting or making up information to get their point across. That is fine, free speech is covered by the First Amendment of the Constitution. A Senator, Susan Collins, made a speech that abortion is a Constitutional right. Let's start there.
The founding fathers limited the powers of the federal government. They felt the government which governs the least governs the best. They only reserved four powers for themselves: issue money, tax citizens, control federal communications, and enter into treaties with other nations. They re-enforced this in the Bill of Rights (Tenth Amendment) when they said that anything not reserved for the federal government automatically goes to the states to govern. Roe v. Wade is and always has been a state's rights issue. This is all the Supreme Court is saying.
Members of the Supreme Court: Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. Photo courtesy of Erin Schaff/New York Times/AP
Regardless of what you may be hearing, Justice Alito made a point of saying that the scope of the decision is limited and does not include any other issue.
- Have you heard that the Court is outlawing birth control?
- The Court is limiting women's rights?
- Anything else you might hear?
Who is responsible for the leak? So far, we only have speculation. There are four liberal justices on the court and five conservative justices. Chief Justice John Roberts has verified that the leak is real and not just a rumor but that is as far as he has gone when addressing the subject. Each justice has either three or four clerks who are usually young lawyers. That makes the pool of potential leakers between 36 and 45. Most lawyers I've spoken to today agree that it is unlikely that a justice would have leaked the draft. If true, that brings the pool down to 27 to 36. Everyone, not just my lawyer friends but television news and magazine articles agree that it likely would be a liberal clerk, bringing our pool down to 12 to 16.
Who investigates? That's a good question. Some "experts" say it will be the Department of Justice others say the FBI and others have a variety of other suggestions. It should not be too difficult to find the culprit. The Supreme Court has something called the "intranet." It is just like the internet but the justices and clerks can only communicate among themselves. The best organization to get into technical issues is the FBI.
What happens to the culprit? If it turns out to be a clerk, he will receive what is known as 20 second justice. That means it will take less than 20 seconds for him to be fired and disbarred. His law career is over after his appearance on The View. He's done. If my lawyer friends are wrong and it was a justice who leaked the information, he can be impeached, possibly arrested and possibly disbarred. We've heard a lot about impeachments in the Clinton and Trump administrations. The House of Representatives decides yes or no on the impeachment by a simple majority (218 votes.) Then it goes to the Senate to decide if criminal charges are applicable. In the Senate two-third votes (66) are needed. This is why no government official has ever been criminally charged.
On a few occasions a decision has been leaked on the day the decision was to be announced, probably so newspapers could get a head start but never has a draft of a decision been leaked months in advanced. Was it to put pressure on the justices or to influence the up-coming midterm election? Only time will tell.