On May 3, I titled my blog “…..SCOTUS Needs a Plumber” and I wrote the following:
I am disappointed with yesterday’s leaking of information from the Supreme Court. It is the first time that I can recall that information from the Supreme Court was leaked prior to the decision being officially finalized. The discussions that occur behind the closed doors of the Supreme Court are too important to be leaked prior to a decision being made. The debates that occur are the strength of the Supreme Court, whether we like the outcome or not. Knowing that the issues were thoroughly debated has always made me have a believer in the Supreme Court. The leaking of information, especially when it includes who voted for and against, seems politically motivated and it puts the nine justices in a position where they cannot change their votes even if they wanted to. When it involves a controversial subject, a leak can be used to influence upcoming elections which might otherwise not have been influenced depending on the timing of the official release. The leaking of preliminary information from institutions such as the Supreme Court or the Federal Reserve prior to it being finalized is a sign of big trouble for this country. It means that people within those institutions no longer respect the institution they represent, instead they represent their own self-interest.
I purposely did not mention the subject of the leak.
Today I want to share excerpts from a Detroit News guest opinion written by Michael Warren an Oakland County Circuit Court judge. It expresses my concerns about the SCOTUS leak. Here are excerpts of his opinion: My emphases are bolded.
On May 2, Politico published a draft majority opinion of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization. The draft reverses the landmark Roe v. Wade, which found a federal constitutional right to an abortion. The media frenzy and political explosion that has followed proves exactly why the leak of such opinions and the inner workings of courts has a corrosive effect on American constitutional jurisprudence and gravely threatens the rule of law.
Remember that the United States Constitution and the Michigan Constitution establish three branches of government: legislative (Congress and the state Legislature), executive (president and governor) and judicial (federal and state courts). The legislature makes the law; the executive enforces the law and the judiciary interprets the law and applies it fairly to resolve disputes.
Only by maintaining the three branches can we preserve freedom. James Madison observed that separation of powers was “a first principle of free government,” and that “the accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or selective, may justly be pronounced the very definition of tyranny.” Moreover, when there is a conflict between the Constitution and a law, the Constitution must prevail. The Constitution is the supreme law of the land, reflecting the sovereign will of the people. Our Constitution provides courts with the authority to strike down unconstitutional laws. As Alexander Hamilton reflected, “Without this, all the reservations of particular rights or privileges would amount to nothing.” The courts are the palladium of liberty, the rule of law and the Constitution.
To properly fulfill this role, legal decisions must be based solely on the facts set forth on the record, the arguments presented by parties and the law as promulgated by the people and legislatures. These constraints are essential to ensuring that courts act as courts and protect the rule of law and separation of powers.
To ensure that courts reach the right result, their decision-making process must be shielded from public exposure until finalized. They must have an unfettered freedom to examine, probe, test, evaluate, argue and discuss legal controversies. They must be free to refine their positions and change preliminary decisions. As a circuit court judge for more than 19 years, I have often written draft decisions which I have materially revised — sometimes completely changing the outcome of my decisions.
When preliminary drafts of court opinions are exposed to public scrutiny, all of the protections of ensuring well grounded and faithful decisions come under attack. The leak of the Dobbs opinion has engendered tremendous political, cultural and media pressure on the Supreme Court.
….under our system, legal decisions must not be influenced by facts not in the record, arguments not made or a desire to change or ignore the law. Judicial decisions should be determined by the law, not political pressure and pundits. Legal opinions must adhere to the record and arguments — not threats and protests……. regardless of anyone’s particular feelings on the merits of the Dobbs draft, its premature release is a grave threat to our republic and must never happen again.
Please note Michael Warren is a candidate for the Circuit Court of Appeals. The use of his opinion should not be construed as my endorsement of him as a candidate.
Here is some interesting information I read in The Guardian today. This country is divided and getting more and more divided. Here are excerpts from the article.
The US supreme court’s upcoming decision to reverse Roe v Wade doesn’t ban abortions; it leaves the issue to the states. As a result, it will put another large brick in the growing wall separating blue and red America.
The second American civil war is already occurring, but it is less of a war than a kind of benign separation analogous to unhappily married people who don’t want to go through the trauma of a formal divorce. One America is largely urban, racially and ethnically diverse, and young. The other is largely rural or exurban, white and older.
The split is accelerating. Red zip codes are getting redder and blue zip codes, bluer. Of the nation’s total 3,143 counties, the number of super landslide counties – where a presidential candidate won at least 80% of the vote – jumped from 6% in 2004 to 22% in 2020. Surveys show Americans find it increasingly important to live around people who share their political values. Animosity toward those in the opposing party is higher than at any time in living memory. Forty-two per cent of registered voters believe Americans in the other party are “downright evil”. Almost 40% would be upset at the prospect of their child marrying someone from the opposite party.
Pray for peace and tolerance. What are you doing to stop the violence? Get vaccinated and get your booster.
Quote of the Day: “For more than 30 years, Bob served as our global ambassador and as a special assistant to David Stern and then me, traveling the world to teach the game’s values and make a positive impact on young people everywhere. It was a labor of love for Bob, who was one of the kindest and most genuine people I have ever been around.” Adam Silver, NBA Commissioner on former Piston Bob Lanier who passed away early today at age 73
Orchid of the Day: Bob Lanier, a Hall of Fame Player for the Detroit Pistons who passed away today. He has been a great ambassador for the game of basketball for the last 50 years.
Onion of the Day: The Tigers offense or better described as a non-offense.
Questions of the Day: Where does Bob Lanier rank as the best in Detroit Pistons history?
Video/Song of the Day: My granddaughter Alaina getting Scubby ready to ride.
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