Judging Freedom - Threats against Supreme Court

Episode Date: June 9, 2022

Terrified law clerks at the Supreme Court are lawyering up as the investigation into the leaked draft opinion overturning Roe v. Wade fuels hostility: report. #supremecourt #Kavanaugh #threatsSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Thursday, June 9, 2022. It's about 4.15 on the afternoon of the Supreme Court on the afternoon on the east coast of the United States. Yeah, the Supreme Court also on the East Coast of the United States, continues to make news, but not in a very good way, not in a way that constitutional law scholars expect. Nina Totenberg, whom I know and who reports for NPR, states that she has sources inside the court who report that it's a very demoralizing place these days. The last time I talked to the late great Justice Antonin Scalia, he was indicating it was a very happy place to work. That was 10 years ago. He died in 2016. Our conversation about the happiness of the court was about 10 years ago. But my conversations with other members of the court whose names I won't mention now, my friendship with Justice Scalia is well-known and well-documented, have indicated the same thing.

But we seem to be getting little snippets here and there about the unhappiness of the court. Justice Clarence Thomas spoke publicly that the atmosphere was one where people were looking over their shoulder, where people didn't trust each other anymore. Well, now that the Chief Justice John Roberts has ordered the U.S. Marshal at the courthouse, who commands 250 agents, pardon me, to investigate the source of the leak. She, the U.S. Marshal, has asked all of the law clerks, and there's probably 40 of them. Law clerks, of course, are recent law school graduates, top of their classes at the best law schools, and they do the research and the original draftings of opinions for the justices. The U.S. Marshal has asked the law clerks to turn over

their mobile phones, and they don't want to do it, and I don't blame them. So there's a host of issues here. Who owns the phone? Is it issued by the federal government? Who owns the software in the phone? Is it issued by the federal government? Your private employer, if your private employer, not the government, owns the phone and owns the software and provides the server, that employer is entitled to your phone. But with the government, it's different because you have the right to privacy with the government. So now you have law clerks for the Supreme Court of the United States hiring lawyers to deal with federal marshals whose job it is to protect the court and the clerks so that their constitutional liberties are protected. I don't know where this is going to go, and unless this investigation has been making headway and we don't know about it,

I don't think this is going to be resolved by the end of this court's term. The court term ends at the end of June, and the Chief The court term ends at the end of June. Now, the Chief Justice can extend it into the first week of July, but it doesn't go beyond July 4th, so we really have less than a month to go. There's still 30 opinions to come, two very hot opinions involving freedom of religion, one involving whether the state of Maine, which will reimburse parents for sending children to private schools, will also reimburse them for sending them to Catholic schools. The other religion case is whether or not a board of education can prevent a football coach from going down on his knee and saying a prayer with the team before the game. And then the other two very hot ones are the one that started all this,

the Dobbs case, the Mississippi case, in which the draft opinion of Justice Alito was leaked. That's the opinion that if it becomes the majority opinion, will invalidate Roe versus Wade. The other opinion we're waiting for is the New York gun case, in which the Supreme Court is reviewing the very, very tough right to carry laws, not the right to carry, you don't have a right to carry in New York, unfortunately, but the carry laws carrying guns in New York, and it appears as though that one is going to go by the wayside,

that is, the regulation will go by the wayside. So those are four opinions we're all waiting for. Theoretically, they're done, but not always. Sometimes justices go back and forth. Sometimes a five-member majority can become a four-member dissent, and then the author of what was five and became four has to rewrite it. None of us knows how this is going to go, but we know the court is not a very happy place. Now, there are two other reasons why it's not a happy place. One happened at one o'clock this morning when two U.S. marshals outside the House of Justice, Brett Kavanaugh in Maryland, noticed a guy getting out of a cab at 105 in the morning with a backpack. He saw them and he called 911 on himself and said, I'm here.

I'm suicidal, but I'm also here to kill Justice Brett Kavanaugh. Yikes. That, of course, produced an enormous response at the middle of the night at 115 in the morning. The guy was arrested. Now they've looked at all his social media stuff, and it turns out he was serious about wanting to kill Justice Kavanaugh. He had a knife. He had a gun. He had zip ties, and he had the ammunition to use the gun. All of this is happening while Speaker Pelosi is sitting on legislation which

originated in the Senate to provide 24-7 protection for the justices. Now, the chief U.S. marshal for the court, the same woman in charge of investigating who leaked the Alito draft opinion, has dispatched some of her 250 deputy marshals to provide 24-7 protection for the justices. But the legislation that the Senate passed and that the House has not yet passed, and that's the point of what I'm saying now, would make this permanent and would provide a higher level of protection. Mrs. Pelosi, what are you waiting for? Thank God they caught this kid in the middle of the night. As for the Supreme Court, I hope that tempers and fears go away so that the court can do its work. Whatever you think of it, it's the highest court we have. As Justice Robert Jackson once said

whimsically, and then a lot of people picked up on it, most law students know this one-liner, we, meaning the Supreme Court, we are infallible because we're final. We're not final because we're infallible. Those nine human beings have the final word, like it or not, on the meaning of the Constitution, which governs the government, for all 333 million of us. Judge Napolitano for judging freedom.