Question: Who killed Cock Robin?
Answer: His killing is not relevant to who leaked the draft Supreme Court decision on the abortion case.
Ah, but it is! The answer to the above question is known in legal circles as a “nonresponsive answer.” It is relevant to at least part of the current discussion.
Senators Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) are claiming that when they interviewed Donald Trump’s nominees to the Supreme Court or followed what the nominees said at their confirmation hearings, the nominees gave assurances that they would not vote to overturn Roe v. Wade. Murkowski said: “I think you look to some of the statements that were made in the confirmation, specifically to Roe, about precedent, and there’s a reliance factor there.” Collins said: “[The decision] would be completely inconsistent with what Justice [Neil] Gorsuch and Justice [Brett] Kavanaugh said in their hearings and in our meetings in my office.”
That seems most unlikely. Dissembling is simply not what Supreme Court nominees do—if only because they tend to be skillful enough wordsmiths to mollify a hostile interrogator without dissembling. But, on the other hand, the claim of being double-crossed—or double spoken to—is precisely the kind of claim to which a senator facing a difficult reelection campaign (e.g., Collins) might have to resort. It seems more likely that a campaigning politician will . . . stretch the truth than a Supreme Court nominee would dissemble.
Here’s a story, which comes with good provenance, that Collins and Murkowski, and all the Dobbs v. Jackson Women’s Health opponents, should ponder: Anthony Kennedy was asked by “the White House” (i.e., by someone in the White House who was vetting him for the Supreme Court) if he was opposed to abortion. The question’s import was clear: Are you likely to overrule Roe if you get the chance? Send us a signal. Kennedy’s answer was: “I’m Catholic.”
Alas. That is known in legal circles, and to readers of this column who have been paying attention, as a “nonresponsive answer.”
And the rest, one might say, is history (Kennedy went on not to oppose abortion in critical cases)—except that part of that history, and an important part, seems about to be changed. But who caused the leak?
Chief Justice John Roberts.
No, Roberts may not have actually slipped the draft opinion to Politico, but he fostered the atmosphere where that sort of thing could happen. Roberts is a nice fellow, but he hasn’t run a tight ship where things like this simply don’t happen. Harry Truman would understand. Truman knew where the buck stopped. And in this case, it stops with Roberts.
But there’s more: Roberts has been an overtly political justice, an overtly political chief justice. We saw that in his 2012 opinion for the Court in National Federation of Independent Business v. Sebelius. He embarrassed himself and the Court when he upheld Obamacare on spurious grounds. By switching his vote, he created a decision, and a Court, that was political instead of judicial. Because of who he is, he didn’t want to affirm or deny; he looked for middle ground where there wasn’t any. That is politics.
Leaking is a political act, too. It’s a natural progression from Roberts’ behavior in the Obamacare case. It’s a further traducing of our standards of civilized and law-abiding behavior.
And here’s another example: In March 2020, during a protest rally in front of the Supreme Court as it was hearing a case involving an abortion question, Senator Chuck Schumer (D-N.Y.) bellowed threats at Justices Neil Gorsuch and Brett Kavanaugh: “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
What price is there for them to pay? They can’t be fired. Their salaries can’t even be reduced. Is there a price other than bodily harm that Schumer had in mind? Theoretically, they would know “what hit them” if they were only punched and kicked, but not if they were struck, in the right place, by a bullet. But then again, maybe Schumer was just warning them to be terrified of . . . what he might say about them in his autobiography? Please. Schumer was threatening democracy—a delicate and beautiful thing. Like Cock Robin.
You might not have been frightened at the time by Schumer’s remarks. But consider what happened afterward: a summer of rioting, burning, looting, and yes, killing, all winked at, and even justified, by many of the same people who militantly support abortion. Oh, yes, that’s not their only defining characteristic. But the complete disregard for the rule of law by those people—who are now the people running the country!—should frighten everyone, including Supreme Court justices.
John Roberts should make amends by not issuing the decisions until it’s too late for Democrats to campaign on the issue in the coming congressional elections.
How do civilizations collapse? Ernest Hemingway might have answered, “Two ways. Gradually, then suddenly.” At what stage are we now?
Cock Robin is dead. We should take his death seriously. Because whoever killed Cock Robin is coming for us, too.