I’m seeing a lot of commentators saying the bill that Democrats propose to codify Roe will rapidly be rejected by this Supreme Court. If it’s not accompanied by Court expansion there’s no point. While I appreciate that these remarks are proffered in good faith and quite possibly accurate as predictions, it’s still losers’ logic.

Everything in our politics and society today seems stuck, hanging, thrusting forward in a foreboding moment of transition in which essentially nothing seems good but just where it’s all going isn’t at all clear. One of the big transitions is the shift of the tech world from its general indifference to politics in the first decade of the century, to a generally D-aligned engagement, to one that is increasingly but by no means universally aligned with the right and the hard right. In general many of us are accustomed to think of the tech high flyers as reflexively laissez-faire on economics while being cosmopolitan/libertarian on social issues. That latter stance isn’t liberalism, though it’s fairly close in the context of U.S. politics. This is changing rapidly, however, and I want to note some particulars about a development you may have heard about.

For weeks, analysts in the U.S. and across Europe speculated and worried that the May 9th Victory Day parade in Red Square would be Vladimir Putin’s moment to announce a dramatic escalation in his war against Ukraine or issue dire new threats against NATO and the U.S. for arming Ukraine. It’s been the focal point of anxiety, perceived danger, the platform for the next big thing. And yet it all happened today and almost literally nothing happened. They had the parade with the big ICBMs. Putin gave a speech. It was defiant, repeated the basic message we’ve been hearing for months — Ukraine is Nazis, it’s a replay of World War II, Russia’s fate is at stake. But that was it. No announcement of mobilization, no dire nuclear threats.

Of course, thank God, more or less. That’s good news. And yet it’s another dog in this crisis that hasn’t barked. Something’s got to give — either fold or escalate — and yet nothing does.

Just to bring us up to speed on the events of the weekend, Republicans are galloping rapidly toward a national ban on abortion (entirely predicted and predictable) and state efforts to ban birth control in the expectation that those bans will be approved by Republican-heavy federal courts operating in a post-Roe legal environment.

Along those lines, I wanted to share these thoughts sent in last week from a highly knowledgable observer of the elite appellate legal world in Washington, D.C.

Tom Friedman makes a lot of good points in this Friday opinion piece about Ukraine. My take on the current situation mostly matches his. But aside from all his warnings about the mounting dangers of the situation, it was one point, largely a factual and reported point rather than opinion, that grabbed my attention and concerned me greatly.

I want to chime in on these articles, which John Judis notes below, which have U.S. defense officials taking credit for providing intelligence to Ukraine that helped kill Russian generals and sink the ship Moskva. My take on it is somewhat different. But we agree inasmuch as making these comments seems very ill-advised and unhelpful.

A few points.

Last night, Politico Nightly had a somewhat ungenerous read on Democratic efforts to codify Roe. Congress Editor Elana Schor noted that Democrats are resisting efforts to join a bipartisan effort that is backed by pro-choice Senators Collins and Murkowski. That seems odd. Why wouldn’t they add those votes? The Collins and Murkowski option wouldn’t provide as fulsome protections for abortion access. But it would like get more than 50 votes rather than a vote in the high 40s. It makes the Democrats sound more interested in purity than results. So why not do that? Sen Mazie Hirono explains: since getting to 50 votes actually has no practical impact on passing the law, why not vote on a law you can enthusiastically get behind rather than a more watered down one?

That’s a pretty good logic.

But this logic illustrates the broader dead end the Democrats are walking into. These votes are often called “symbolic” votes. But that’s not an accurate description. Votes like these are test votes to frame electoral choices. You either force the opposition to make unpopular votes with the intention of campaigning on those votes in an election or — more directly — you use the votes to frame a clear electoral choice. So you tell voters, this is what is at stake in this election. Elect us and we will do this thing. As I’ve argued, in this case that means something like, give us two more Democratic senators and the House and we will codify Roe on the first day of the new Congress.

Tom Goldstein of SCOTUSBlog published a new leak speculation story earlier this afternoon. And it’s fascinating. First off, he thinks the opinion is most likely to have been leaked by a liberal. So he has a different take than the one I’ve been advancing. But what is so interesting to me is that how he gets there overlaps a lot with my thinking (and, to be clear, that of many others).

As I wrote below, the rapid-fire follow-up reporting on John Roberts’ position on the Mississippi case, just hours after the Politico exclusive, made me think at the time that the leaked draft opinion wasn’t a one off thing. It seemed part of a larger breakdown of secrecy or on-going leaks tied to the Mississippi abortion case. You don’t come up with details about the Chief Justice’s position and arguments from internal deliberations on one of the biggest cases in decades in an hour and a half if you’re beginning from a cold start. Then this morning I found out about this Wall Street Journal opinion page editorial from April 26th in which they fairly transparently write about current Court deliberations in the Mississippi case, specifically that John Roberts was trying to pull an unnamed conservative Justice back from fully overturning Roe.

We can’t know for a certainty that this wasn’t just uncannily accurate speculation from the WSJ worthies. But this opinion piece didn’t come out right after the oral arguments in the case on December 1st when five conservative Justices appeared entirely ready to overturn Roe and Roberts seemed to be looking for a path to a more limited, though still restrictionist, opinion. That general dynamic was clear then — and probably could have been anticipated given Roberts’ recent history of mild heterodoxy from GOP priorities if not conservative judicial orthodoxies. But why the column in late April? And why the specifics? It certainly reads like the authors had an inside read on on-going deliberations and fears that Roberts might be in the process of sneaking a defeat from the jaws of victory.

Going to write more about this topic this morning after I finish up a meeting. But since writing the piece below I’ve put together new details which make it crystal clear the Alito leak came from the right and that it was part of a pressure campaign and series of leaks that were something of an open secret in the elite conservative legal world.