Alito’s Preemptive Strike (Against ProPublica)

Supreme Court roundup.

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Sarah Isgur and Guest-host David French return from the Advisory Opinions live event for some Supreme Court bingo. Plus:

-Opinion lightning round

-Justice Alito’s Op-Ed in the WSJ

-Transgender care for minors at the District Courts

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Comments (265)
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  1. Snoopyboobs

    I personally won't be satisfied until the justices are unhappy and have no friends. We won't need term limits this way either, they will just retire early to have a life.

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  2. Helbock

    You all need to separate the term "sex" a verb from sex = gender, a noun. This is what is wrong with the Gorsuch decision.

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    1. Snoopyboobs

      y'all need to get some.

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    2. Michael M

      Sex is a verb?

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      1. RedBeardRob

        When performed correctly, yes.

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        1. Michael M

          😀

          “Hey honey, do you want to sex tonight?”

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    Dguaspari

    This is a late hit, because I've been on the road.

    Please stop referring to "gender-affirming care" -- since whether it is in fact "care" is precisely what's in dispute. Instead of "care" try "procedure."

    It's impossible to have a discussion if one side manages to force everyone to use its preferred euphemisms.

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    1. Michael M

      Most gender affirming care for children is therapy and counseling, not procedures (and not a euphamism).

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        Dguaspari

        Leaving aside the factual question of how much pharmaceutical and surgical intervention is pursued or promoted ...

        I'd say that "affirmation" itself is euphemistic. I don't know of any other therapy that axiomatically accepts and encourages a patient's self-diagnosis (let alone the self-diagnosis of a small child).

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    Ben Connelly

    Thank you for addressing the Alito vs. ProPublica controversy. You two seem to offer the most balanced and fair take that cuts through the partisan noise. Since I have no such obligation, I’m happy to call ProPublica a rag perpetuating a hit job but I’m glad you two said everything you said.

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    Marc Frischhertz

    Do the justices pay taxes on these gifts?

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    1. Michael M

      Gift taxes, if owed, are oved by the giver not the receiver.

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  6. Amsterlee7

    My understanding is that federal judges as well as federal employees must declare gifts, trips etc from others , except family- why is the Supreme Ct exempt from this? Sounds like a “ do as I say, not as I do” kind of defense which was flimsy when I was a kid , as it is now & I am 78! Thanks

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    1. Michael M

      It’s great question with no good answer - other than maybe Congress has become afraid to try to regulate the Court anymore.

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        Ben Connelly

        Since I can’t respond to your final comment, I’ll reply to it here.

        That’s mostly fair. Perhaps this question is more complex than either you or I have contended. I also think each of us has somewhat misinterpreted the other to be making a more absolutist argument in the opposite direction. To be fair to me, I think you will note that there actually is consistency in my comments. I said that Congress isn’t the Court’s boss. Do you think Congress is? I never included the lower courts in any of my statements. In talking about the executive, I specified the president.

        I stand by my position that Congress shouldn’t regulate the minutiae of Supreme Court behavior. All nine justices agree with me. One thing I suppose I would disagree with you and the CRS on is that I do believe there is fundamental separation between the branches and I don’t like attempts by any branch to erode that. I know constitutional scholars who agree with me on that (and also agree on this specific question).

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        1. Michael M

          Look, I don’t disagree that there is a strong concept of separation of powers. That is core to our constitutional system, and I am very glad for it. But it goes hand-in-hand with the concept of “checks and balances”, and the “checks” are the powers that each branch DOES have to control or limit the others.

          Roberts sent a memo to Congress stating that all 9 justices had signed on to a document affirming certain ethical principles they all subscribe to. That memo did NOT say ANYTHING about Congress’s powers to implement further rules, guidelines or laws, so there is no evidence that “all nine justices” agree with you on this point.

          I obviously never suggested that any branch (or head thereof) was another’s “boss”. I’m saying that they all operate as a check on the others’ powers.

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            Ben Connelly

            I actually agree with that. I think you’re accusing me of making an argument I don’t believe I have made. Perhaps it comes down to differing interpretations of the word, “regulate.” I do think the justices are pretty united in preferring to maintain the independence of the Court. I will point out that there is disagreement among constitutional scholars about legislative supremacy vs. coequal branches.

            I don’t think Congress should implement further guidelines. I never said they don’t have the power to. When you said “regulate” I interpreted that to mean in the way that a regulatory body such as the FDA regulates drugs. There is no confusion in that case regarding who has authority over whom in the case of the FDA and drug companies. You’ll note that I said that the Court isn’t “subject to congressional discretion in all matters.”

            I do believe that continuing down this path is an attack on the independence of the Court and I see the presidential committee looking into court packing that Biden stood up in 2021 as something of an attack on the legitimacy of the Court.

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        Ben Connelly

        Congress doesn’t have power to regulate the Supreme Court. That would be an abuse of one branch by another. We already see too much abuse of the other branches by the executive branch. Congress should do its job. The Court can regulate itself.

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        1. Michael M

          Literally no informed person makes the argument that Congress cannot pass laws that govern or regulate the judiciary or the executive branches.

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            Ben Connelly

            Actually the Constitution is quite clear on the separation between the branches. Congress is not the president’s boss and the president isn’t Congress’s boss. Congress is also not the Supreme Court’s boss, nor is the Court the boss of the other two branches.

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  7. Hjohnstontaylor

    I would love to see an AO and Cafe Insider "Crossover Event" on the Alito/Thomas ethics questions. I often listen to David and Sarah talk about similar issues as Preet and Joyce. A discussion between the four of you would not disappoint!

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    1. Michael M

      I’d like to see this too.

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    Witt Case

    The real issue I have with the trans bans is that they’re written as all or nothing. No gender affirming care and no nuance or distinction between puberty blockers and hormones, between counseling/social transitioning and surgery. They are all or nothing. Nothing in medicine is that black or white, it’s nuanced. Always. We’ve lost that in these discussions.

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    1. Michael M

      Thank you for raising this point.

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    PaulH

    I think Sarah and David are wrong in their concern that Alito "elevated" the Pro-Publica piece. Pro-Publica is very prominent in itself and its reporting was going to be widely picked up. Based on their past reporting, there is no reason to believe that they would report on this matter fairly (and, they didn't). In Sarah and David's mind the story may be nothing, but Pro-Publica and MSM continue to publish these stories for the specific purpose of undermining the legitimacy of the court; this not an attempt objective reporting, it is agenda driven opinion. Therefore it is entirely appropriate for Alioto to pre-empt their attempt to tarnish his ethics. He has no obligation to play by some set of rules if Pro-Publica itself isn't committed to being fair.

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    1. Michael M

      Everything ProPublica said was 100% factually correct, and they gave him 5 days (with extra time if he needed it) to answer their request for comment, clarification or rebuttal.

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        Ben Connelly

        David and Sarah both said Alito is 100% correct on his lack of need to disclose or to recuse himself from any cases. Also, the Wall Street Journal is a real newspaper and ProPublica isn’t.

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        1. Michael M

          Umm, I know what they said. They are incorrect on the disclosure point, and in my opinion wrong on recusal (but a closer call, as Justices’ decisions are their own and non- reviewable).

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        PaulH

        The purpose of the article was to pretend a scandal existed when there was none. That they gave him 5 days is irrelevant; he has no obligation to them and can respond to their hatchet job as he sees fit.

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        1. Michael M

          Of course he had no such obligation. But there was a scandal: he broke the THEN-EXISTING disclosure rules (see my response to your prior comment), and subsequently failed to recuse. Two separate but related problems.

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            PaulH

            Nope. There is no scandal in following the rules in the same manner that every other justice followed the rules.

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  10. Jim S

    I am pretty disappointed at all the AO water carrying for Alito and Thomas and their peccadillos.
    Increasingly the evidence is that the SCOTUS is just as corrupt as the legislative branch. No amount of whitewash and wishful thinking is going to do anything to change that fact.

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      PaulH

      I am not sure how you could characterize the discussion as "water carrying" given that most of it centered on David's ethical concerns and criticism of how Alito handled the situation. Yes, they noted correctly that no ethical rules were broken -- do you disagree with that? Your comment does not include any substance so it is difficult to understand the basis for your claim of whitewashing.

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      1. Michael M

        The disclosure rules were broken (travel was not one of the available categories under the personal hospitality exemption). And had he disclosed, then the entire world could have pointed out to him that the litigant befor him was the dude that took him on a fishing trip on his private jet. Which would clearly be grounds for recusal (even though he implausibly denies that).

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          Driven away by the bigots

          One of the problems with saying it would be grounds for recusal is that you'd be wrong. Well, not wrong, but premature.

          It might be a factor to consider. In and of itself, it's nothing close to grounds for recusal. "We went on a fishing trip he paid for" is still not a proven conflict of interest. You still have a lot of legwork to do.

          And trust me, I think Alito is a snake. I really dislike him and find him smarmy and a whiny pissant. But still, I need more than that to say he ought to recuse himself.

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          1. Michael M

            First of all, the problem of “going on a fishing trip” was’t the issue in the Singer case, it was the acceptance of private jet from a billionaire and then ruling on his case before the Court. And the standard for recusal is not “a proven conflict of interest”, but whether a reasonable person would/could perceive the APPEARANCE of conflict or impartiality.

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          PaulH

          But the disclosure rules weren't broken. It is only recently that they have been amended to require the disclosure of transportation.

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            Marc Frischhertz

            I think travel was never included and the fact the judges we rely on to interpret the most complex legal issues have essentially admitted they misinterpreted the law is quite troubling

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          2. Michael M

            No, the ones in place at the time did not include a transportation category in the personal hospitality exemption.

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