Should SCOTUS issue a ruling in Dobbs immediately as a matter of self-protection?

Erin Schaff/The New York Times via AP, Pool

Let me quote myself from a post published May 8 about the danger of people showing up at the justices’ homes: “[I]n the current political context, a fanatic has more motive to kill one of the Court’s conservatives than just satiating his or her rage. Doing so would provide a strategic benefit to the pro-choice side. Congress should give them all the bodyguards they need, and then some.”


When you have reason to believe that five justices have signed onto overturning Roe but the decision hasn’t been handed down yet, that’s an incentive to take one of those votes away by any means necessary. Especially since a Democratic president would get to fill the vacancy.

Lo and behold.

I’m sticking with my original suggestion. The way to handle the leak isn’t to have the Court change how it operates, it’s to give the justices extra security. That idea reportedly picked up momentum in the House this morning following the news of the threat to Brett Kavanaugh but they sure had been taking their sweet-ass time about it.

As a matter of political self-interest, Democrats should want that security in place ASAP. If someone harms one of the justices, God forbid, they’ll never be able to explain why they dragged their feet even after the reality of the threat was made clear last night. And the country would be rendered ungovernable by the thought of Democrats benefiting politically from a murder which they might have prevented if they had acted sooner to protect the Court.


Josh Blackman has another idea. If lunatics are having thoughts of killing a Court member to prevent Alito’s Dobbs draft from becoming law, the solution is obvious: Make Alito’s Dobbs draft become law immediately. Or at least make the underlying holding, that Roe is overturned, law immediately. A full opinion can follow in due course.

Every day that goes by, and Dobbs remains undecided, is a day that the lives of the Justices and their families are at risk. Immediately after the leak, I wrote that the Court should issue a one-sentence per curiam opinion, with a reasoned decision to follow–follow the path of Ex Parte Quirin. Lurking in the back of mind was the risk that a Justice could be assassinated. Now, that risk looks so much more real.

Why, then, has the Court not issued a decision in Dobbs yet? We know the majority opinion was finished in February. Yet, at least in May, the Chief Justice still had not circulated his much-vaunted concurrence. My cynical take was that “circulating the draft opinion at the latest possible juncture creates chaos, and makes it more likely that things can move around without sufficient deliberation.”

Or maybe there is a less cynical, but equally dangerous explanation. Shortly after the leak of the Dobbs opinion, Chief Justice Roberts proclaimed, “The work of the Court will not be affected in any way.” Perhaps Roberts thinks that by deviating from the normal course, the Court would be sending a signal that the leak did affect the Court’s business. If so, Roberts continues to live in a different reality than the rest of us. Justice Kavanaugh nearly faced an assassination attempt. A group bearing the name of Ruth Bader Ginsburg advertises nightly protests outside of his home. Similar protests are scheduled outside of the homes of other Justices. Their lives have been turned upside down. All of the other Justices are at similar risk. The way to ensure that the Court “will not be affected in any way” is to decide a case as soon as it is ready, and remove the threat that someone will try to deprive the majority of the fifth vote.


I’m not sure why Blackman thinks the Alito draft that leaked was the “finished” majority opinion. To all appearances, dissents hadn’t been written yet when it was drafted. Surely a finished majority opinion would have addressed some of the concerns mentioned in those. There’s also no telling whether Alito’s draft had already been approved by the other four justices in the majority or if the draft was just his first stab at an opinion on which they might all eventually agree, subject to revisions from the other four.

It may also be the case that one or more of the five in the majority is sincerely undecided about whether to overturn Roe or to side with Roberts and the liberals on some half-measure. Pressuring a justice to join a majority whose reasoning he or she isn’t sure of in order to avert a safety risk isn’t that different from an outside actor intimidating them into quitting that majority.

There’s one more problem. The Dobbs case isn’t the only one that the armed nut outside Kavanaugh’s home cared about. Per the FBI affidavit, the suspect mentioned Alito’s Dobbs draft when questioned by cops but also “indicated that he believed the justice that he intended to kill would side with Second Amendment decisions that would loosen gun control laws.” That sounds like a reference to the Bruen case pending before the Court, in which the Supremes will decide whether the right to “bear arms” means a constitutional right to carry concealed outside one’s home without a permit from the state.


Should the Court rush out a decision in Bruen too to thwart the crazies? Why not issue a one-line ruling in every pending case, just to make sure all the boxes are checked?

Blackman’s post does reflect a legit concern about the Court, though, in that there are a *lot* of major decisions still in the pipeline and they’re trickling out a surprisingly slow pace. Usually SCOTUS is finished announcing its decisions for the term by late June. As it is, they still have something like 30(!) to go. Why the foot-dragging? This grim NPR piece may offer a clue:

The atmosphere behind the scenes is so ugly that, as one source put it, “the place sounds like it’s imploding.”…

“I don’t know how on earth the court is going to finish up its work this term,” said a source close to the justices. The clerks, he explained, are sort of “the court’s diplomatic corps.” Especially at this time of year, they talk to each other, with the approval of their bosses, to find out how far the envelope can be pushed in this case or that one — or conversely, how can we soften language to get five justices on board. But at the moment, he noted, the clerks are terrified that their whole professional lives could be blown up, so they aren’t able to do that. In short, it’s a very perilous time for the Supreme Court.


Clerks may be more worried about whether they need to lawyer up amid SCOTUS’s leak investigation than about finishing opinions on time. That’s not an environment conducive to productivity. And so another American institution shudders.

I’ll leave you with this Twitter exchange, noting the unsurprising indifference with which our media has greeted an assassination attempt on a conservative Supreme Court justice with a decision overturning Roe expected any day.

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David Strom 2:30 PM | July 20, 2024