Washington Post publishes amid questions about its legitimacy

The Supreme Court’s abortion decision was leaked before being issued, apparently in an effort by the liberal wing of the Court or their clerks to pressure the majority to reverse themselves. The Chief Justice in a rare press release condemned the leak, as did other conservative justices (no liberal justice did) and promised an investigation by law enforcement.

That was five months ago. If the investigation concluded that it’s impossible to identify the leaker, we’re entitled to see the report. If the investigation did successfully identify the leaker, we’re entitled to know who it was.

But we’ve heard crickets. The Chief apparently decided it was more important to just move on than to bring the matter to light. The leak damaged the Court badly enough, he may have concluded, and he doesn’t want to damage it even more by identifying the leaker – something that would cry out for an impeachment of a Supreme Court Justice.

If my theory is correct that the Chief is protecting a liberal Justice of the Court (I doubt he would go to such lengths to protect a mere clerk of a liberal Justice) then a storied institution charged with administering justice at the highest level in the land is consciously shirking its duty to administer justice in its own institution – in the interest, ironically, of preserving its status as an institution of justice.

With this on my mind, a headline in the Washington Post last week caught my eye. In their news pages – not their opinion pages – a story appeared under the headline “Supreme Court term begins amid questions about its legitimacy.”

Ah, I thought, WaPo is exploring this same story that is on my mind – that the Court is covering up the identity of the leaker to avoid a bloody judicial impeachment and Constitutional crisis.

I was wrong. The “legitimacy” issue in the WaPo story was that the Supreme Court had ruffled liberal feathers lately with decisions they don’t like. For example, the Court stated that abortion is not in the Constitution and therefore is not a matter for judges to decide, and that the power of administrative agencies is limited to what Congress delegated to the agency.

Democrats don’t like these decisions, both because they don’t like the particular results and because, more broadly, they don’t like shifting power back to the people. Democrats favor policies that are to the left of the people. They can’t enact such policies democratically because they would get voted out of office, and so they let unelected judges and administrative agency bureaucrats do their dirty work.

Leave it to the Democrats to charge that judges risk their legitimacy not by seizing judicial power, but by relinquishing it to the people and the people’s elected representatives.  

Put this in historical perspective. For two generations, up until a few years ago, the Court was issuing decisions that I didn’t like. For that, however, I never questioned whether the Court was legitimate. I simply questioned whether its decisions were correct.

That’s an important distinction. An incorrect decision still needs to be followed. An illegitimate decision, by implication, need not be. Roe v. Wade was an incorrect decision as a matter of Constitutional law, but conservatives never argued that it cast doubt on the legitimacy of the Supreme Court. They simply argued that it was incorrect, and so should be overturned. In the meantime, it was the criticized but undisputed law of the land.

The left plays by a different set of rules. People who disagree with them are not merely incorrect; they’re deemed illegitimate. If such people are students, they get booted out of school; if they’re parents at school board meetings, they get arrested and investigated by the FBI; if they’re professors, they get fired even if they’re tenured; if they’re opinion columnists like me, they get censored; if they’re speakers, they get shouted down; if they’re politicians, they get name-called “racists,” “deplorables,” and “semi-fascists.”

Nutjobs in the radical left hear these things and conclude, apparently as they are supposed to, that conservatives should be hunted down and eliminated – physically if necessary. Political violence is escalating. Most of it is against conservatives, and it’s rare to hear the left – or even mainstream Democrats – condemn it.

If the persons with whom the left disagrees happen to be Supreme Court Justices, their legitimacy, too, gets questioned – after their homes get marched upon and one of them is the target of an assassination attempt. 

As bad as physical violence and threats are, the deliberate undermining of the authority of the Supreme Court is worse. We are careening over the guardrails and into the day when the left simply announces – in the guise of news stories in prestige newspapers and not just opinion pieces – something like “People question whether Supreme Court rulings should be followed.”

The editors and reporters at WaPo have crossed a line. The line they’ve crossed is not expressing an opinion with which I disagree. They have a right to their opinions, and I’ll fight to preserve their right to express them – even though they conspicuously don’t fight to preserve my right to express mine and in fact do whatever they can to censor mine.

Where WaPo starts to cross the line is where they express their opinion not in their opinion pages where opinions belong, but in their news pages.

And then WaPo gets way over the line with the substance of their opinion-in-the-guise-of-news. The substance of their opinion, expressed as news, is that the Supreme Court is illegitimate simply because the Court is issuing decisions that WaPo doesn’t like.

So, remind me: Who’s the threat to democracy?

Glenn K. Beaton practiced law in the federal courts, including the Supreme Court.

Denver will pay you $1,000/month to be a transgender vagrant

Denver has its share of vagrants. The rule is evidently that you can illegally camp on the sidewalk and poop in the gutter until a lot of people complain. Once dozens or hundreds of people complain – they don’t publish what the requisite number is – the city will tell the vagrants they have two weeks to shuffle down the road to trash some other site.

What the vagrants then do, naturally, is leave for a few days and then come back to the same place again, where they stay again until enough people complain again and they get the two weeks’ notice again and then they leave for a few days again. I’d say it’s a case of rinse and repeat, except these feral humans have not seen a rinse in months.

The vagrants are offered shelter in several vagrant shelters, but typically refuse to go there unless it gets very cold, which in Denver it fortunately sometimes does.

The city council sees this as a problem, but not in the way you would assume. The problem they see is not that there are too many vagrants panhandling and pooping up the downtown. It’s that there are too few.

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The voice of the people

“Extremism in defense of liberty is no vice”

— Barry Goldwater

About ten years ago, in a piece written for Breitbart, Thaddeus McCotter recounted the tale of a man trying to sell his ’67 Plymouth Barracuda. Having no luck, he finally left it on the street with the key in the ignition and a big sign announcing “Free!” The next morning the ‘Cuda was still there, with a message scratched into it with the key, “Don’t nobody want this shit.”

McCotter followed with the point that politics divorced from popular culture sells about as well as this hapless vehicle; further, that Republican politics is Exhibit A. Make that “Model A.”  

Of course, what neither Andrew Breitbart nor McCotter — with their mantra that politics is downstream from culture — could have fully foreseen is the degree to which popular culture would become tainted  by unpopular culture which few people wish to be “downstream” from, any more than from raw sewage.

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Free stuff is a lousy way to address wealth disparity

I’m not convinced that wealth disparity is a problem. I do firmly believe, mind you, that the world is rich enough now that no one should starve or freeze to death, at least not involuntarily, and that the injured or diseased should be given medical treatment.

In America, we’ve achieved that, and more. Poor people in America not only have plenty to eat (as is evident from their physiques) but also have automobiles, air conditioning, color cable television, smart phones, and free tuition.

The wealth disparity complaint is not about starvation or freezing. It’s the complaint that some people have far more luxuries than others. Some have fancier cars or more of them. Some have more frequent European vacations. Some have televisions in the bathroom. Some fly First Class on their own dime. Some drink not just wine – everyone drinks wine now – but the expensive kind.

Some of these people indisputably have more luxuries than they need. But so do the poor people, just not as many.

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“Doctor” Jill’s trillion-dollar gift to the educational-industrial complex

First Lady Jill Biden asked to be called “Doctor” after her husband was elected president. She’s not actually a doctor. She’s also not nearly as smart as one and so she thought the title made her look like she was, at least to stupid people who don’t know better.

The justification for “Doctor” Jill’s request to be called a doctor was she has an EdD. That’s a doctoral degree in education. It’s a little like a PhD but much easier to obtain. No EdD in the entire universe could pass an introductory college chemistry or physics course.

I suppose I could ask to be called a “doctor” too, since my law degree is a J.D., a Juris Doctor, but my friends would laugh at that request, and rightly so.

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Recently, the federal judiciary has seemed like justice turned upside down

 “In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. (See Stranger Things, Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.”

U.S. District Judge Mark Walker

So goes the opening paragraph of the ruling by the referenced judge enjoining the enforcement of a law recently passed by Florida’s elected representatives prohibiting employers from imposing political indoctrination on their employees.

I practiced before federal court judges including the Supreme Court Justices and respect almost all of them, including Democrat appointees. When I saw a news account quoting this language, I assumed it must be from a state court judge, not a federal court judge.

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The midnight train to Georgia

“L.A. grew too much for the man . . . .

Said he’s going back to find

a simpler place and time.”

James Weatherly’s lyrics having been written half a century ago, one can only wonder what “the man” might think of today’s L.A.

It probably doesn’t matter. After all, it was over a century and a half ago that the town of Concord, Massachusetts, with its whopping population of about 2,200, had grown too much for another man, who sought his simpler place and time on the shores of Walden Pond.

Thoreau’s celebrated experiment was little more than a grand and somewhat phony gesture by a self-impressed social misfit with a Harvard education. Nevertheless, he used the occasion to fire off some trenchant commentary about a social and economic system in which “The mass of men lead lives of quiet desperation.” Embraced by liberal academia, his book would sell like hotcakes in the 20th century.

But back to the song by Gladys Knight and the Pips — with its all-American roots in R&B, Doo-wop, Country, and one other musical genre to be touched upon shortly.

The theme is familiar. Indeed, it’s not a stretch to say that the very creation of America in the European mind was an effort to catch the midnight train to Georgia. Yes, many came in the pursuit of wealth, even empire, but the tired, huddled masses were dreaming more modestly of a plot of earth and the intangibles that came with it. In their most purely idyllic fantasies, they imagined themselves as De Crevecoeur’s “new man,” an innocent new Adam dissociated from the historic past, dwelling in a paradise regained. 

Some, like Brigham Young, claimed to have reached this place. More sober minds have acknowledged that the “new” man brought the old history with him — indeed, his descendants are up to their necks in the continued making of that history, some of it more dreadful than ever — and that it’s become nigh unto impossible to find a nook or cranny of America’s geography in which “Georgia” can be found. The TV series “Yellowstone,” for example, depicts a montane pastoral idyll filled with men and women whose desperation is far from “quiet.”

Back to the song — not that we should necessarily find the wisdom of the ages in a piece of pop music.

The first thing to understand is that it’s not about “the man,” his defeat and retreat, nor is it about Georgia. Rather, its subject and protagonist is the woman whose voice we are hearing, and who also will be boarding that train — not because her life is quietly desperate, but because “I’d rather live in his world, than live without him in mine.” It’s the principal declaration of the song, and presumably it hasn’t come without some internal conflict.

Perhaps she hadn’t been reading Betty Friedan and Gloria Steinem, but surely their question, which was blowing in the zeitgeist, had entered her mind — Was she going to Georgia only to raise this guy’s barefoot children and braise collard greens on the cook stove? Not well played, girl.

But if she is still conflicted, you’re not hearing it in her voice, which is positive, forward-looking, uplifted. It’s almost like we’re listening to a piece of Gospel music, which in fact happens to be the other major formative influence on this song. (Listen to it HERE and tell me you can’t hear The Pips sounding an “Amen” after almost every musical phrase.) Now capitalize the two male pronouns — “I’d rather live in His world, than live without Him in mine” — and you’re listening to two thousand years’ worth of Christian saints. Convert these words to female pronouns, and you’re thinking like a medieval chivalric knight about the secret lady of his heart, knowing that, socially, he can never live in her world, but will remain committed to living for her world until the day of his death.

Pretty noble stuff. “He who would lose his life for my sake shall find it.” This woman’s happiness does not lie in Georgia, but rather in her commitment to another person who appears to offer her something more than material comfort in Madonna’s material world. 

Fifty years later we find ourselves among ideologues often characterized as utopians — “Great Reset,” New World Order types who feel that, if only we can erase past history and present values, together with the kind of people and thinking that created them, blend Western religion into a more universal spirituality that honors the Earth and no longer subjects it to “dirty,” non-renewable sources of energy, and liberate ourselves from “gender” stereotypes and so on, then behold The New Georgia and truly new men and women!

I don’t think the Gladys Knight persona would be buying it. You want “Georgia”? Just get on the train. It’s nearly midnight, when one day comes to an end, and a new day begins.

— Chad (“Bitter”) Klinger

My mom got run over by a train

OK, gentlereaders, give me some help. In the comments, give me a column to go with these great David Allen Coe lyrics:

Well, I was drunk the day my mom got out of prison
And I went to pick her up in the rain
But before I could get to the station in my pickup truck
She got run over by a damned old train

The whole song is HERE in case that helps. The winner gets to buy me a pickup truck, a beer and a train. In the rain.

My dog, my choice?

“My body, my choice” is a favorite slogan of abortion advocates. It’s thin gruel.

To the extent this slogan is an analysis and not just a chant, it assumes the conclusion. It assumes that a fetus anywhere from hours old to nearly born is simply owned in a legal property sense by the mother in whom it resides.

But that’s the whole question, right? That question is not answered by just determining the location of the fetus. If it were, then a mother wrapping her arms around her baby or toddler or husband could make the same argument; “My body, my choice.” Or could leave a toddler outside the house overnight with the argument, “My house, my choice.”

In other areas of law, philosophy, religion and morality, we don’t subordinate the rights of living creatures to legal property interests. The left’s sudden libertarian argument that it can do whatever it wants with whatever it owns seems not to apply in such things as building codes that require carbon monoxide detectors in “my” house. Or laws against indecent exposure of “my” body. Or noise ordinances against “my” stereo. Or laws against me ending “my” life. Or laws requiring me to wear a seat belt in “my” car.

So, what about “My house, my body, my stereo, my life, my car . . . my choice”?

You may reply that in those examples, there’s a societal interest countervailing the individual interest. We don’t want people to have to see your naughty bits, or hear your noise, or breathe your car’s emissions. But what about the laws requiring carbon monoxide detectors in my house? And what about the laws requiring me to wear a seat belt? And laws prohibiting me from ending my life? It’s hard to argue that society has a direct interest in those things.

Here’s another example. Suppose a person buys a dog. Unlike a soon-to-be-born baby, the dog is indisputably owned by its owner. The dog is legally the owner’s property.

Suppose further that the dog owner decides when the puppy is about eight months old that he doesn’t want a dog after all. It’s too much effort, too expensive, too constraining, too interfering with the owner’s dating life, and too limiting on the travel that’s necessary for the owner’s career.

Note that there’s an alternative for a dog owner who changes his mind. He can bring the dog to the animal shelter where another person can adopt it.

Should the owner be allowed instead to slice and dice the dog with a machete and vacuum up the pieces, as we do with a fetus in a dilatation and extraction abortion?

After all, my dog, my choice. And after all, a dog is not a human being, is it?

No, we don’t allow that, and we shouldn’t. The reason we don’t allow that is that we’re not barbarians. We don’t have public executions either.

So, the abortion-on-demand crowd is left with the position that dogs have more right to life than 8-month-old unborn babies. Really?

There’s ownership and there’s ownership. What you “own” is not determinative of what you’re allowed to do with it. Society has a legitimate interest in regulating activities that lessen us as a culture.

After that little rant, you might assume I’m an abortion abolitionist. I’m not. I see it as the most difficult political/social/moral/legal issue of our time. I firmly believe the Supreme Court was right in deciding in an exercise of judicial modesty that it’s not a decision for them but for the people. As one of those people, I would favor state legislation that bars abortion in most instances after 15 weeks, as they do in most of Europe and all of Mississippi, but not before.

In that, I think I’m balancing legitimate and even a few illegitimate interests of a mother against legitimate interests of society and legitimate interests of the living creature within her womb. I recognize that others may reach a different balance. That’s why this is a decision for the people, not the judges.

It’s complicated. Saying that a fertilized egg is a human being like you and me that is entitled to all the protections of one, and so “abortion is murder,” does no more to illuminate the discussion than saying “My body, my choice.” Let’s get beyond sloganeering.

Who or what is Chief Justice John Roberts protecting?

The old news of the leak of Justice Alito’s draft opinion last May overruling Roe v. Wade has now been swamped by the new news of the Supreme Court’s final opinion a month later.  

That final opinion, almost identical to Alito’s draft and joined by five of the nine Justices, held that Roe was wrong. As a matter of fact and law, the Constitution never mentions, alludes to, or implies a Constitutional right to abortion.

(Notice my use of the word “abortion” to identify abortion. Because “abortion” has a bad connotation, advocates of it seek to rebrand or euphemize the procedure with wooly obfuscation like “a woman’s right to choose” or “reproductive rights.” But “a woman’s right to choose” is ambiguous unless you think that abortion is the only thing women have the right to make a choice about. And “reproductive rights” is a deliberate misnomer, much like “Planned Parenthood.” This is not about the right to reproduce or become a parent, but the right not to.)

The Supreme Court’s decision returns the abortion question to the state legislatures elected by the people or the state constitutions enacted and amended by the people. The states are already going in different directions on the issue, as our system of Federalism permits and even intends.

This is a bad outcome only if you think that abortion is a moral wrong which, according to at least five unelected lawyers in black robes appointed for life, is barred sub silentio by the Constitution or you think abortion is a moral right that is granted sub silentio by that same Constitution.

I’m in neither camp. I’m instead in the camp that the Constitution says what it says and doesn’t say what it doesn’t say. I think this Supreme Court decision is not a bad outcome at all. Let the people and their elected legislatures puzzle out this philosophical, moral and religious – but not legal or Constitutional – issue. That’s what the Founders intended for such issues.

But there’s another question still unresolved. Who leaked Justice Alito’s draft opinion?

That question is important. This unprecedented leak shook the Court to its marble foundations. In the context of the Supreme Court, the leak was far worse than Watergate in the context of the presidency or the Pentagon Papers in the context of the military. This breach of confidence undermined the Justices’ deliberations, reputations, and authority.

Chief Justice John Roberts recognized the cataclysmic nature of the leak. In a rare press release, he called the leak “absolutely appalling” and said he was turning the matter over to law enforcement.

That was a couple of months ago. Since then, crickets.

Several theories have been advanced regarding the identity of the leaker. The obvious one is that it was a law clerk for one of the three liberal dissenting Justices who hoped the leak would generate such an outcry that the majority Justices would back down. Indeed, there are several law clerks with a history of abortion advocacy.

But I doubt this theory that it was a law clerk. Ivy League law school graduates are a mercantile bunch. I doubt they would jeopardize a hard-earned and lucrative career for this political Hail Mary.

Another theory is that the leaker was one of the dissenting Justices who naively thought the same – that the leak would pressure at least one of the majority Justices to change his or her mind.

Yet another theory is from the reverse-head-fake-counter-flop school. It was one of the five Justices who joined the Court’s opinion overruling Roe. The theory is that one of the other four were wavering. The leaker strategized that the leak would lock that wavering Justice into his or her tentative position, because changing his or her vote after the leak would reflect badly on the size of his or her cojones.

No Supreme Court Justice wants to be shown to have little cojones. These people could make ten-fold their government salary in private practice. They instead chose black robes, an audience that stands when they enter the room, and a raised dais from which they look down upon and interrupt those rich lawyers who chose the money route, all because it says they have big cojones. Without the cojones perk, the job offers no rewards.

But I think this theory is too clever by half. I can’t imagine a Justice in the majority thinking, “Gee, so-and-so Justice is wavering. How can I lock that Justice in to the preliminary vote on the case? I know, I’ll leak the draft opinion, and so he/she won’t be able to change his/her mind without looking like a cojones-lacking Justice.”

And so, I think the second theory is correct. One of the three dissenting Justices leaked the opinion in the hope that the ensuing protests would pressure at least one in the majority to change his or her mind. That obviously didn’t work, and if anything it may have had the opposite effect.

I suspect that the status of the law enforcement investigation is as follows. Law enforcement has interviewed the thirty-some clerks and reviewed their phone calls and emails. They’ve been cleared, else we’d have heard otherwise by now.

That leaves the Justices.

I suspect that Roberts stopped the investigation before law enforcement interviewed the Justices and reviewed their emails and phone records. Because he doesn’t want to deal with what he knows the investigators would find.

Roberts has always been obsessed with the status and prestige of the Court, which is not a bad thing for a Chief Justice to be obsessed about. Indeed, he refused to join the majority opinion in this case – instead writing a separate opinion saying he wanted to uphold the Mississippi law limiting abortion to 15 weeks without outright overruling Roe – because he wanted to conserve the power of the Court by issuing a small ruling and not at big one.

That approach is defensible. Overbroad decisions have the effect of binding future litigants who have not had their day in court, based on hypothetical and un-litigated facts. To avoid that, courts usually issue rulings no bigger than necessary to decide the case in front of them.

I thought the Court would approach this case that way. Roe was bad law, but it was not necessary to outright overrule it in order to uphold the Mississippi law.

Now, again trying to conserve the Court’s status and prestige, Roberts probably believes that implicating a sitting Supreme Court Justice in a criminal leak would be even more destructive to the Court than the leak itself.

He may be right. But still, as Chief Justice, isn’t part of his job description to be the chief of justice?

One last morsel for thought: If the leaker was indeed a Justice, the liberal reporter at Politico who broke the story and published the draft opinion now has kompromat on her.

Glenn Beaton practiced law in the federal courts, including the Supreme Court.