The leak

I wish I could give the stunning leak of Justice Alito’s draft opinion in Dobbs its due today. For now, I will note that I agree with Bari Weiss’s take in its entirety, especially this part:

To my mind, though, the question of what this leak means for the institution of the Supreme Court is the most profound one. That is because it captures, in a single act, what I believe is the most important story of our moment: the story of how American institutions became a casualty in the culture war. The story of how no institution is immune. Not our universities, not our medical schools, not legacy media, not technology behemoths, not the federal bureaucracy. Not even the highest court in the land.

The Supreme Court was always the most cloistered governmental institution in America—the one where wisdom and precedent and reverence for our great constitutional tradition outweighed everything else. If there was something sacred that remained, this was it. Yes, there have been leaks from the Court before. But as Politico pointed out, last night’s leak was historic, and not in a good way: “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”

I called up one of the smartest professors I know at one of the top law schools in the country, and he echoed that: “To my knowledge, it’s never happened before in the modern history of the court. It is the most serious possible breach.”

Serious, severe, shocking, he said. But in the end, not surprising. Why not? Here’s how he put it: “To me, the leak is not surprising because many of the people we’ve been graduating from schools like Yale are the kind of people who would do such a thing.”

What did he mean by that? “They think that everything is violence. And so everything is permitted.”

He went on: “I’m sure this person sees themselves as a whistleblower. What they don’t understand is that, by leaking this, they violate the trust that is necessary to maintain the institution.”

The Chief Justice has directed the U.S. Marshal to launch an investigation. This is a pivotal moment for the Court, as it works to quickly eradicate this source of institutional rot.

West Virginia governor will appoint the judge who will rule in his case

A strange development in West Virginia. State judge Charles King passed away last month, and Governor Jim Justice is charged with appointing his replacement. Interviews will be taking place this week. At the time of his death, Judge King was presiding over a lawsuit in which the Governor was the defendant. The new appointee will take the reins of that suit. Put differently, the Governor will literally be picking the judge in his own case.

While it is common for governors to temporarily fill vacant seats on the bench so that the courts remain at full strength, this situation is plainly awkward. It is all the more so because of the efforts in the mid-2000s of Massey Coal Company to heavily finance the election of Brent Benjamin to the state supreme court; Benjamin would later cast the deciding vote in Massey’s favor in a major case pending before that court.

Governor Justice must carry out his appointment responsibilities, but he would be well-served by including extra transparency in the process — for his sake, the new judge’s sake, and the sake of long-term public confidence in the state judiciary.

North Carolina Chief Justice election still undecided

More than a month after Election Day, the race to be Chief Justice of the North Carolina Supreme Court remains unsettled. Challenger Paul Newby won the original count over current Chief Justice Cheri Beasley by 406 votes. That lead dipped slightly after a machine recount, to 401 votes. Beasley then requested a manual recount in selected precincts, which is ongoing (and scheduled to be completed by December 14).

But the ancillary fights continue. Beasley has filed 87 protests across the state, conending that thousands of ballots were improperly disqualified. Newby has filed 14 protests of his own, arguing that hundreds of late-postmarked or otherwise invalid ballots were improperly counted.

After this episode, whoever wins — and it seems likely to be Newby — public confidence in the North Carolina Supreme Court as a fair and impartial body is almost certain to decline.

Ugly campaign tactics in upstate New York judicial race

Law.com reports on a campaign mailer sent to residents of Sullivan County, New York, which accuses a Democratic judicial candidate of being a socialist and favoring the legalization of drugs. Her Republican opponent has taken full credit for the mailer, which was designed to look like a local newspaper. The accused candidate has denied the allegations of socialism and drug legalization, and has filed a complaint with the state broad of elections.

Judicial candidates acting injudiciously.

 

For some state judges, lobbying is part of the job description

One of the most important themes of judicial interdependence is resource dependence. By conscious design, courts cannot produce or directly obtain many of the resources that they need to operate. These resources include immediate, survival-level needs like adequate funding and staffing, but they also include less tangible resources like public trust and legitimacy, and long-term needs like enabling legislation.

For better of for worse, most of the courts’ needed resources are in the hands of the legislature. Congress and state legislatures allocate funds to the judicial branch, determine the number of judges that the courts will have and the conditions upon which those judges will be selected, enact statutes granting courts jurisdiction to hear cases and authority to manage their internal affairs, and set the public tone in the way they treat the courts and individual judges.

So it should not be surprising to see judges directly asking legislatures for resources from time to time. The U.S. Courts submit a formal budget request to Congress every year, and on several occasions federal judges have testified before Congress on bills that affect the judiciary’s operations. And at the state court level, it is all the more prevalent. Many state chief justices provide a formal State of the Judiciary speech to their respective legislatures at the start of a new year, in which they lay out the work of the state courts over the previous year and lobby for resources to sustain or improve operations. That lobbying process may coincide with the speech, but often starts beforehand and continues long into the legislative session.

Consider New Mexico. Chief Justice Judith Nakamura will present her State of the Judiciary speech on Thursday, but she has already set the groundwork for the courts’ legislative “ask.” Several days ago, she sat down with the editors of the Albuquerque Journal. That access enabled the Journal to report, with considerable depth, that the state judiciary would pursue two constitutional amendments and several statutory changes in the upcoming legislative session. The constitutional changes would affect the timing of participation in judicial elections and the court’s ability to effectuate administrative transfers among courts. The statutory changes would set aside certain requirements with respect to appeals and jury service in order to make those processes more efficient. And of course, the courts are asking for additional funding for specific projects.

Chief Justices bear significant administrative responsibilities: they are the CEOs of their court systems as much as they are judges. In that capacity, a little legislative lobbying–and lobbying in the media–is very much fair game.

Walker to be new West Virginia Chief Justice

Justice Beth Walker has been chosen by her peers to be the next Chief Justice of West Virginia. Walker was cleared of impeachment charges by the West Virginia Senate earlier this month. She will face the important task of restoring public confidence in a court shaken by financial and fraud scandals over the past year.