UPDATE -- check out Robert Kuntz' comment in the comment section, theorizing that the metadata debacle wasn't incompetence but was intentional. I doubt it because it would not surprise me for a second that SCOTUS just does not understand basic tech issues. Your thoughts?
It's really hard to believe, but the Supreme Court forgot to wipe the metadata from the Trump opinion that came out yesterday. Internet sleuths found that the three liberal Justices' "concurrence" actually started out as a partial dissent by Justice Sotomayor. Slate tells the story here:
The Supreme Court’s decision on Monday to keep Donald Trump on Colorado’s ballot was styled as a unanimous one without any dissents. But the metadata tells a different story. On the page, a separate opinion by the liberal justices is styled as a concurrence in the judgment, authored jointly by the trio. In the metadata of the link to the opinion posted by the court, however, this opinion is styled as an opinion concurring in part and dissenting in part, authored not by all three justices but by Sonia Sotomayor alone. Even a techphobic reader can discern this incongruity through careful copying and pasting, piercing the facade of unanimity that the conservative justices sought to present.
What happened? Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata. The court, after all, scheduled the opinion’s release only one day earlier, on Sunday afternoon, evidently to hand it down before Tuesday’s Colorado primary. Moreover, the justices did not take the bench to announce the opinion, as they usually do—probably because they had not all planned to be in D.C.—further proving that it was a last-minute release. The deeper question remains, of course: Why was an opinion originally authored by a lone justice as a partial dissent transformed into a concurrence authored by all three liberals together?
In other news, the 11th Circuit bench-slapped DeSantis and Florida for passing a law called the Stop W.O.K.E. Act that prohibited woke mandatory workplace training. It obviously violated the First Amendment. Per Judge Grant, joined by Wilson and Brasher:
This is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law, and public policy. And it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale. The State of Florida seeks to bar employers from holding mandatory meetings for their employees if those meetings endorse viewpoints the state finds offensive. But meetings on those same topics are allowed if speakers endorse viewpoints the state agrees with, or at least does not object to. This law, as Florida concedes, draws its distinctions based on viewpoint—the most pernicious of dividing lines under the First Amendment. But the state insists that ordinary First Amendment review does not apply because the law restricts conduct, not speech.
We cannot agree, and we reject this latest attempt to control speech by recharacterizing it as conduct. Florida may be exactly right about the nature of the ideas it targets. Or it may not. Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.
5 comments:
Good on the "Stop WOKE Act," Eleventh. Now do the "Don't Say Gay" law.
The entire Slate article reads as if it were written by someone who knows nothing at all about how the Supreme Court – or any panel of judges, or, indeed, any group of human beings – reaches and records a collective decision. (Troubling, since Stern seems to be writing a lot about the Court for Slate these days.)
This sentence is especially dimwitted: “The deeper question remains, of course: Why was an opinion originally authored by a lone justice as a partial dissent transformed into a concurrence authored by all three liberals together?” (That “of course” is doing a lot of work there, and none of it laudable.)
Why? Well, because justices, since the high court’s founding, routinely wrangle and horse-trade, rounding the corners of this argument, remaining silent as to that one, deferring an issue for another day, or even – imagine it! – sometimes being persuaded by the exchange of views to change their own. As the concurrence makes clear, Sotomayor, like Kagan and Jackson, found the central question in the case a simple one with a clear answer. (An answer they couldn’t much have liked, but one which they felt compelled by their oaths and their intellectual honesty to reach.) Together they sternly criticize the conservative justices for running far afield from the essential question before them, and that’s dissension, even if it isn’t labeled a dissent.
As for this being a “total screw up,” I do not for a second believe this was inadvertent. It’s a lesser version of the Dobbs leak, for very much the same purposes, and very possibly by the same person or persons. The suggestion that the metadata “exposed” something the least unusual, let alone anything even slightly nefarious, can only be the product of ignorance or malice – and despite Napoleon’s advice about not ascribing to malice what can be explained by incompetence, I’ll side with malice.
Why? Because we live in an age where every court decision that displeases anyone immediately leads not merely to criticism of the decision, but to an utter renunciation of the institution and serial slander of the motives and integrity of the jurists. For goodness’ sake, one commentator, Keith Olberman – whose opinion last mattered, if it ever did, when it had to do with the wild card implications of Boston’s injured/reserve list late in the season – called yesterday for the Supreme Court to be “dissolved.” (By whom Olberman did not make clear.)
A blog written and read by lawyers might be a worthwhile place to consider who is served by continuous efforts to undermine the judicial branch and whether undermining that branch – even when it is surmounted for the moment by judges holding views not quite as one might wish – is good for the republic.
Perfectly said Bob. Anyone who knows and understands the basics of opinion writing on an appellate level knows drafts are routinely shared around before a final consensus is reached. More importantly, to believe Justice Sotomayor, or any other justice for that matter, but especially Justice Sotomayor, here would change her written opinion for any reason other than for her true, final position is simply looking for a conspiracy and click bait. I have no doubt all options were considered and debated amongst the justices and each concurrence reflective of each of their learned opinion. these justices have never been shy to take a lonely position on any issue if they feel it is warranted.
The change of draft from dissent to concurrence is a non-issue. It's just part of the sausage making, and in this case, actually nice to see that The Nine are playing nice and working together to try to do the people's business. Congress could learn from this.
I don't think for a minute that the metadata slip was intentional.
Yeah, I also don't think the metadata slip was intentional (or at least I have no reason to suspect that it would have been). I know that nobody does it these days, but there's something to be said about printing a document out and scanning it in order to be assured to avoid these kinds of errors. (There are some ways to do it as well in PDF, but they work less well.) I suspect that if you did a random pull of SCOTUS (or other) opinions and started tinkering around, you may find something similar in others.
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