Reform The Supreme Court

The Daily Escape:

Gold Creek Valley, WA – December 2022 photo by Erwin Buske Photography

“A body of men holding themselves accountable to nobody ought not be trusted by anybody.” – Thomas Paine

Welcome to 2023! It seems like a good time to think again about what’s worth fighting for. Paine valued freedom and despised oppression. In 2023, we could substitute the US Supreme Court (SCOTUS) for Paine’s original targets, which were Britain and King George III.

From Ed Walker: (emphasis by Wrongo)

“In case after case, SCOTUS has ignored the trial record, made up its own facts, reached out to take cases before a record can be made, ignored precedent, including precedent about rejecting precedent, invented new Constitutional “doctrines”, taking faked-up cases for the sole purpose of striking down actions…and delaying justice through the shadow docket.”

The Shadow Docket is designed to allow the Court to engage in administrative management of its calendar so that the Justices have sufficient time to rule on emergency applications.

On Dec. 27, we saw an example of the Court’s reactionary majority using the Shadow Docket to extend indefinitely a Trump immigration policy known as Title 42. Trump implemented Title 42 to exclude asylum seekers from the US because they might be carriers of coronavirus.

From Vox’s Ian Millhiser:

“That decision…is typical behavior from the Supreme Court — or, at least, is reflective of this Court’s behavior since a Democrat moved into the White House….It’s the latest example of the Court dragging its feet after a GOP-appointed lower court judge overrides the Biden administration’s policy judgments, often letting that one judge decide the nation’s policy for…an entire year.

And that delay may be the best-case scenario for the Biden administration — and for the general principle that unelected judges aren’t supposed to decide the nation’s border policy. “

Millhiser points out that SCOTUS’ response is very different from when Trump was in office. Back then, the Court frequently raced to reinstate Trump’s policies within days.

The Court’s Conservative Six no longer seem to care about the law or precedent. It’s become a policy-making body in service of Conservative’s religious and social agendas. We should expect It to continue down this path until we reform the Court.

Reform is necessary to protect the legislative prerogatives of Congress, and the prerogatives of the Executive. Oh, and to protect the individual liberties guaranteed by the Constitution.

The NYT’s Adam Liptak says that SCOTUS has been rapidly accumulating power at the expense of every other part of the government. He quotes Mark A. Lemley, a Stanford law professor’s article in The Harvard Law Review:

“The Court has taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts. And it has done so using a variety of (often contradictory) interpretative methodologies. The common denominator across multiple opinions in the last two years is that they concentrate power in one place: the Supreme Court.”

Non-elected activist judges indeed.

We have historically entrusted courts with the task of determining which rights belong to the people, and the extent to which governments at all levels can exercise their Constitutional powers in controlling the people. We know that courts have always lagged behind the consensus of the American People on issues of rights. But before now, change has come, albeit slowly.

That ended with SCOTUS’ decision in Dobbs, where the Conservative Six ruled that women have no right to control their own bodies.

Earlier, they imposed their religious view that coaches are free to dragoon their players into worshiping the God of the coach’s choice, and that religious leaders are free to spread a pandemic, despite public health officials’ warnings.

Neither Congress nor the President have resisted SCOTUS’s power grab. They haven’t even taken the mild step of imposing ethical requirements on the Court. The other two branches have simply watched the Conservative Six operate in their self-declared role of Philosopher Kings. We now have a Supreme Court tinkering with the Separation of Powers, based solely on political and ideological preference.

As if to justify their power without restraint or oversight, Chief Justice John Roberts recently cited the myth of “three separate and co-equal branches of government.” But that isn’t what the Founders and Framers had in mind, and it isn’t what the Constitution says.

In fact, the judiciary was third in line of power and importance in the minds of the Framers of the Constitution. Article III clearly puts the Supreme Court under the control of Congress. Section 2 is unambiguous:

“[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

The founders felt the judiciary was not co-equal. In Federalist 51, James Madison proclaims:

“[I]n republican government the legislative authority, necessarily, predominates.”

In Federalist 78, Alexander Hamilton writes:

“[T]he judiciary is beyond compare the weakest of the three departments of power.”

It’s important to remember that the power to overturn laws passed by Congress and signed by the President was not granted by the Constitution: it was taken by the Court onto itself in 1803 in the case Marbury v Madison.

Soon SCOTUS will rule in Moore v Harper. Moore hinges on a legal proposition known as the “independent state legislature theory.” The theory says that, when it comes to making state laws that apply to federal elections — from drawing congressional district lines, to determining the who-what-when-where of casting a ballot — only the state legislature itself has the power to set the rules.

Moore is an opportunity for the court to reject radicalism, but SCOTUS may upend our democracy with their decision.

SCOTUS has legalized bribery of politicians (Citizens United) and ignored potentially seditious behavior by its own members and their families. Not to mention exceeding its Constitutional authority by inserting itself into political issues, now with startling regularity.

It’s time to reign in the Supremes before they reign over us.

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Monday Wake Up Call – December 5, 2022

The Daily Escape:

Park Avenue, Arches NP, UT – November 2022 photo by Joe Witkowski

Last Tuesday, the Supreme Court (SCOTUS) heard arguments in United States v. Texas, a case that asks some big questions about immigration policy and the relationship between government agencies and the states. From Vox:

“The case involves a memo that Secretary of Homeland Security Alejandro Mayorkas issued in September 2021, instructing ICE agents to prioritize undocumented immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being” when making arrests or otherwise enforcing immigration law.”

Texas and Louisiana challenged DHS’ ability to prioritize certain groups for deportation. The states argued that the executive branch doesn’t have the authority to pick and choose which groups to prioritize. A Texas federal judge, Drew Tipton, agreed with Louisiana and Texas, and stayed the ability of the DHS to prioritize certain groups of immigrants.

In July, the Supremes agreed to hear an appeal by the US government of the case, while permitting Tipton’s order to remain in effect. Vox maintains that the ruling by the Texas federal judge is questionable:

“A federal statute explicitly states that the homeland security secretary “shall be responsible” for “establishing national immigration enforcement policies and priorities,” and the department issued similar memos setting enforcement priorities in 2005, 2010, 2011, 2014, and 2017.”

The case has already been heard by SCOTUS. We won’t know what their decision is until sometime next summer, but the case raises questions that we all should ponder.

First, do Louisiana and Texas have standing to bring the case? To prove you have standing is to show that you have a right to bring your lawsuit and that you have had real, and direct harm. The two states have to show that they are being adversely affected directly by this policy. The data presented so far by the states isn’t of high quality.

Second, SCOTUS needs to address whether the DHS followed the rules under the Administrative Procedures Act. The Administrative Procedures Act establishes procedures that federal administrative agencies like DHS use for rule-making. And the states are saying that the Biden administration didn’t follow all the rules in adopting this policy deciding which immigrants to deport.

The key rule is about “prosecutorial discretion.” It’s one of the fundamental rules about how police and prosecutors operate at all levels of government. More from Vox:

“Suppose that there are a rash of home break-ins in Washington, DC….Police precinct commanders, the city’s police chief, or even the…mayor may respond…by ordering DC cops to spend more time patrolling Columbia Heights — even though that means that crimes in other neighborhoods might go uninvestigated or unsolved.”

It isn’t practical or useful for judges to monitor every decision made by every law enforcement department at every level of government. Vox says that SCOTUS has repeatedly warned judges against doing just that.

Third is whether the federal courts below SCOTUS have the power to vacate a rule that affects the rest of the states. Or whether SCOTUS is the only court that is permitted to stop a government policy nationwide.

The states contend that the DHS in this case has a mandatory duty to apprehend non-citizens. They’re arguing that the use of “shall” in the law means that these provisions are mandatory.

The Congress may have passed a law that creates a mandatory duty, but that same Congress hasn’t funded the DHS to the extent that performing such a mandatory duty is remotely possible.

The implications of the SCOTUS ruling are potentially huge. If any state can challenge any federal policy that they disagree with, it has ramifications beyond immigration law. An adverse decision for the government in this case would open the door to chaos if states are allowed to sue to overturn laws that they disagree with.

Think about it: If this stands, a Republican state attorney general’s office can handpick judges who they know will strike down (in this case) a Biden administration policy; and once the policy is declared invalid, the state knows that SCOTUS will play along with these partisan judges’ decisions for at least the year it takes for the decision to get up to the Supreme Court.

Time to wake up America! Wrongo has said it many times: Elections have consequences, particularly when Trump got to appoint three Supremes in four years. To help you wake up, take a listen to Bruce Springsteen performing “Nightshift” live on the Tonight Show. “Nightshift” is a 1985 song by the Commodores. Springsteen has covered it on his 2022 album, “Only the Strong Survive”:

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Can We Become A Representative Democracy Again?

The Daily Escape:

Toroweap Point, North Rim, Grand Canyon NP, AZ – August 2022 photo by Andrei Stoica

Our democracy is teetering. Minority states representing a fraction of the whole population of the country, have an outsized representation in the Electoral College and in the Senate. This has helped ignite an acute threat to American democracy that’s based in Red State America. The NYT’s David Leonhardt quotes Harvard’s Steven Levitsky:

“We are far and away the most countermajoritarian democracy in the world,”

One reason is that the more populous states over the past century have grown much larger than the small states. That means the bigger state residents now hold (relatively) less political power in the Senate and the Electoral College than they did in the 1900s.

This was something that the founders understood and agreed on. At the time, there was an alternative discussion about maintaining proportional representation in the House. In the first US Congress, (1789-1791), James Madison had proposed 12 potential Constitutional amendments. We all know that ten amendments were quickly ratified as the Bill of Rights. Another amendment was ratified in 1992 as the 27th Amendment which prohibits salary increases for House and Senate members to take effect before the next election.

The only one of the 12 amendments passed by Congress that wasn’t ratified is the Congressional Apportionment Amendment (CAA). The CAA was designed to let the number of seats in the House grow to meet future population growth.

A majority of the (then) states ratified the CAA. But by the end of 1791, it was one state short of adoption. No other state has ratified this potential amendment since 1792. Here’s the text of the proposed CAA:

“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

The CAA lays out a mathematical formula for determining the number of seats in the House of Representatives. Initially, it would have required one representative for every 30,000 constituents, with that number eventually climbing to one representative for every 50,000 constituents.

But the amendment wasn’t added to the Constitution. Today, Congress controls the size of the House of Representatives. They had regularly increased the size of the House to account for population growth until 1911, when it fixed the number of voting House members at 435. Today, that’s about 761,000 Americans per House seat. Miles away from 50,000.

Delaware leads in the malapportionment with 990,000 people per representative, about 250,000 more than the average state. Rhode Island has the most democratic apportionment with 548,000 people per representative. Both are small, Blue states.

The small Red state Wyoming has 578k/representative. All of the big states are higher than the average: NY has 777k, and CA has 761k, while Florida has 770k and Texas has 768k.

This also impacts the distribution of Electoral College votes, which equal the apportionment of House seats. As a result, the Electoral College is also becoming less representative. David Leonhardt points out:

“Before 2000, only three candidates won the presidency while losing the popular vote (John Quincy Adams, Rutherford Hayes, and Benjamin Harrison), and each served only a single term.”

But two of the past four presidents (Trump and GW Bush in his first term) have become president despite losing the popular vote. Small states represent a fraction of the whole population of the country yet, absent something like the CAA, have an outsized representation in both the Senate and the Electoral College.

This was on purpose. But when the filibuster was added in the Senate’s rules, it changed everything. The filibuster has been part of the Senate in many forms, but in 1975, the Senate revised its cloture rule so that three-fifths of Senators (60 votes out of 100) could limit debate.

With the Senate roughly equally divided, each Party has about 50 votes it can count on, but it needs 60 to pass most legislation. This means that the small states have more power in the Senate than they had before.

Using the 2010 US Census as an example, the US population was 308.7 million. If the CAA was in effect, the number of representatives in the House would be more than 6,000. That’s surely unwieldy, but is there a number of House seats between 435 and 6000 that would be more representative?

Our form of proportional representation needs an overhaul. Some changes to consider:

  • Better proportional representation in the House (via the CAA?) to help make the Electoral College more representative than currently
  • A version of ranked choice voting for all state-wide races
  • Overturning Citizens United
  • Ending gerrymandering by using independent commissions to establish district lines

Since only a few hundred people currently control the democratic direction of our country, can these ever be addressed?

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Right-Wing Lobbying Group Designated a Church by IRS

The Daily Escape:

Sunrise, high tide, Sea Street beach, East Dennis, MA – July 2022 photo by Bob Amaral Photography

The fallout from the Trump years continues. On Monday, ProPublica reported that the IRS had decided that the Family Research Council (FRC), a Right-Wing political lobbying group, qualifies as a church for tax purposes:

“The Family Research Council’s multimillion-dollar headquarters sit on G Street in Washington, DC, just steps from the US Capitol and the White House, a spot ideally situated for its work as a right-wing policy think tank and political pressure group.”

The FRC is now a church, thanks to the IRS and its Commissioner, Charles Rettig. You can be forgiven for not remembering that Trump appointed Rettig to be Commissioner of the IRS in 2018. He got the job by writing a 2016 op-ed saying Trump didn’t have to release his tax returns, despite every major presidential candidate having done so since Nixon.

ProPublica noted that the FRC says on its website that it is a:

“…nonprofit research and educational organization dedicated to articulating and advancing a family-centered philosophy of public life. In addition to providing policy research and analysis….[the] FRC seeks to inform the news media, the academic community, business leaders, and the general public about family issues that affect the nation from a biblical worldview.”

Now that the IRS has blessed FRC as a church, it is no longer required to file a public tax return, (known as a Form 990), which reveals key salaries, the names of board members and related organizations, large payments and/or grants by the organization.

And unlike with charities, IRS investigators can’t initiate an audit on a church unless a high-level Treasury Department official has approved the investigation.

Right Wing Watch, an organization that monitors the activities and rhetoric of right-wing activists and organizations reported on the ties between FRC and Trump’s Jan. 6 effort to overturn the presidential election:

“The Family Research Council…was deeply involved in…Trump’s efforts to overturn the results of the 2020 election—a fact made all the more apparent by revelations during the June 23 public hearing of the House select committee investigating the conspiracy that led to the Jan. 6, 2021, insurrection at the US Capitol.”

You probably remember the head of the FRC, Tony Perkins (not the deceased actor) by some of his grandstanding in the culture wars:

  • In 2005, Perkins was against disconnecting life support for Terri Schiavo, a woman who had been in a “persistent vegetative state” for a number of years.
  • In 2008, Perkins called the passage of California Proposition 8 (which prohibited same sex marriage in the state) “more important than the presidential election”.
  • In 2018, Perkins said, regarding Trump’s adulterous past, he should be given a “Mulligan“, because Trump was “providing the leadership we need at this time…”

In 2010, The Southern Poverty Law Center (SPLC) designated the FRC as a hate group. From the SPLC:

“Part of FRC’s strategy is to pound home the false claim that LGBTQ people are more likely to sexually abuse children than heterosexual people. The American Psychological Association, among others, however, has concluded that “homosexual men are not more likely to sexually abuse children than heterosexual men are.”

Designating the FRC as a church for tax purposes is part of a disturbing trend. The WaPo reported in 2020 about the growing list of religious groups seeking church status from the IRS.

The potential cost of becoming a church is that the organization can no longer conduct political operations on behalf of politicians or lobby on legislation. In practice, that is simple to get around. The FRC now has its church arm alongside a separate lobbying arm called Family Research Council Action.

The arms separate their messaging on two websites, with the FRC hosting issues-based content supporting its Christian worldview while the Family Research Council Action explicitly endorses candidates. Both arms are registered at the same address and both share all five of the part-time employees the FRC lists on its tax form, including Tony Perkins.

These “churches” sure have figured out how to run a scam on the US government.

It’s past time for the IRS to end this charade and tax churches. Biden should fire IRS Commissioner Rettig, who was also the guy in charge when the IRS politically targeted Trump “enemies” James Comey and Andrew McCabe for invasive tax audits.

These people and their “churches” are simply Republicans with a talent for abusing the bible and raising obscene amounts of money. Thomas Jefferson said it best:

“In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection to his own.”

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Saturday Soother – July 9, 2022

The Daily Escape:

Abandoned homestead, Sanpete County, UT – photo by Jon Hafen Photography

Wrongo hates writing about dysfunction among Democrats, but lately, they seem to be all too willing to assemble the circular firing squad. And they’re doing it at a time, as we said yesterday, that the Dems seem to be getting back in the mid-terms race.

Wrongo heard an NPR reporter asking if Democrats were angry with Biden because he wasn’t doing more after the Dobbs decision. The point was that many Dems seem to think there’s a magical way of reinstating the Constitutional right to abortion when Democrats have at best, barely nominal control of Congress. Here are some media comments:

  • The WaPo reported that “some Democrats” think Biden “risks a dangerous failure to meet the moment” and quoted a Democratic consultant lamenting Biden’s “leadership vacuum.”
  • Politico reported that “Democrats have grown increasingly frustrated at what they perceive has been the White House’s lack of urgency” and “Biden’s seeming lack of fire.”
  • CNN reported: “Top Democrats complain the president isn’t acting with 
 the urgency the moment demands.” Anonymous Democratic lawmakers called the White House “rudderless,” with “no fight.”

Is it time to remind Democrats that the radical change in the Supreme Court was a self-inflicted wound? It was Democrats who failed to turnout in Obama-strength numbers in 2016 for an admittedly weaker candidate, Hillary Clinton.

Also, by not electing a few more Dems to the Senate in 2020, Democrats gave their majority over to Manchin and Sinema, and by extension, gave Republicans more control than they had earned.

As Dana Milbank said in the WaPo:

“The fratricide is…stoked by the press, which likes a “Dems-in-disarray” story and would love a presidential primary. Democrats are habitually more self-critical than their Republican counterparts…. And there’s genuine frustration that more can’t get done.

But that’s the fault of Joe Manchin, not Joe Biden — and of a broken political system that protects minority rule. What’s depressing Biden’s (and therefore Democrats’) poll numbers isn’t alleged timidity…but inflation and gas prices.”

One issue that is particularly galling to Wrongo is that many Dems want Biden to do more about Britney Griner, a WNBA basketball player who was arrested in Russia on a drug possession charge. She took vape vials containing cannabis to Russia, and was arrested when she tried to leave the country with them. She has now pleaded guilty to the charges.

While Wrongo and all Americans can feel sorry for her plight, her decision-making was terrible. As a Black lesbian American celebrity athlete, she became a perfect target for the Kremlin. Now she’s placed the US government in a difficult position, and many Democrats are pushing on Biden to do something. But his calculation has to be based on geopolitics. Her decisions aren’t Biden’s fault.

Once again, we’re seeing that Democrats are a herd of cats and Republicans are a herd of cattle. Republicans are satisfied to follow the bell cow, while Dems want to change the world to reflect their individual needs on the first day we get in power.

Republicans worked 50 years to achieve what they have today. They never gave up. Democrats always look for a shortcut to power, and then are angry when that door isn’t opened immediately. All we do is complain.

It’s fair for Democrats to ask whether they should re-nominate an 82-year-old man for the 2024 presidential election. But right now, we need to bear down and add to our Senate majority in November.

Holding on to the House isn’t a bad idea either.

Enough politics, it’s time for our Saturday Soother, those few moments stolen from our overly-scheduled lives when we can prepare ourselves for the trouble to come. If you are feeling exhausted by the news and the lack of action on the part of politicians, it’s understandable. But right now, we must recharge our batteries and throw ourselves back into the fray on Monday.

We’re back on the Fields of Wrong from 10 days in the south, including a stop on July 4 at Monticello. The fourth is also the date of Jefferson’s death, in 1826, 50 years after the Declaration of Independence. Here’s a photo of Jefferson’s gardens and his view to the east in Virginia. The white building is the textile workshop:

July 2022 iPhone photo by Wrongo

To help you prepare for what’s coming, listen to Rossini’s Overture to “La Gazza Ladra” (“The Thieving Magpie”). Rossini hadn’t finished the overture to the piece on time, so the day before the premiere, the conductor locked him in a room at the top of La Scala with orders to complete it. He was guarded by four stagehands whose job was to toss each completed page out the window to a copyist below. The opera was first performed in May, 1817. Here, it’s performed in 2012 by the Mannheim Philharmonic, a youth orchestra conducted by Boian Videnoff. You should watch just to see Videnoff’s conducting style:

 

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More Rights May Be Flushed By The Supremes

The Daily Escape:

Denali from Byers Lake, AK – June 2022 photo by Todd Salat

In his concurring opinion to the decision in Dobbs v. Jackson Women’s Health Organization, that dismantled Roe, Justice Thomas basically begged Red states to send the Court more culture war cases that they could dismantle.

The Houston Chronicle reports that Texas GOP AG Ken Paxton is ready to do just that:

“Texas Attorney General Ken Paxton last week seemingly expressed support for the Supreme Court potentially overturning past rulings on cases involving the LGBTQ community following the downfall of Roe v. Wade on Friday.”

Paxton, in an interview, said he would support the Supreme Court revisiting the cases mentioned in Thomas’ concurring opinion. Here are the decisions Thomas would like a shot at overturning:

He questioned a number of earlier Court rulings, including Obergefell v. Hodges, which established the right of same-sex couples to marry, and Lawrence vs. Texas—a 2003 decision in which the court ruled against the state of Texas regarding its 1973 law criminalizing the act of sodomy.

Thomas also mentioned Griswold v. Connecticut, which established the right of married couples to use contraception without government interference:

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell….We have a duty to ‘correct the error’ regarding these established in those precedents.”

For those who don’t fully understand legal shorthand, the judicial theory Thomas is pursuing is that these issues should be in the hands of state legislatures, and not be decided by the courts.

Conservatives in other states have also expressed support for Thomas’s opinion, including Utah Senate President Stuart Adams, who said he would support the Supreme Court reconsidering same-sex marriage. Utah’s constitutional ban on same-sex unions still exists and could be reinstated if the high court were to overturn its earlier decision.

We shouldn’t forget that Obergefell was a 5-4 decision. Lawrence v. Texas was also a 5-4 decision. Since these cases were decided, the Court has moved three seats to the right. We should expect that both of these decisions will be overturned, assuming some state AG sends a case up to the Supremes.

After all, the Court’s Conservatives haven’t gotten more liberal on these issues in the last 10-15 years.

Some more history: Griswold v, Connecticut was decided 7-2, Loving v. Virginia was unanimous; and Brown v. Board of Education was unanimous. All of that said, while history shows that very few 5-4 decisions get overturned, in this time of Conservative Justice grievance, that’s not the way to bet. Even if those cases had been 6-3, 7-2 or 8-1, it wouldn’t matter to the current Justices on the Court.

Pundits are talking as if they would be shocked if the Court reverses Obergefell and Lawrence. That’s because they’re comforted that Thomas’s revolutionary concurrence wasn’t joined by other Justices. But all of them voted to end Roe, and Alito said:

“…abortion is not mentioned anywhere in the Constitution. Therefore, there is no right to an abortion.”

We should also remember that the Court used nearly word for word, the failed Robert Bork’s reasoning why there isn’t a Constitutional right to privacy in Griswold v. Connecticut.

If there’s no right to privacy because the Constitution does not explicitly state there is such a right, then according to the Court’s Conservative 6, all of the rest of our privacy rights are in play. That means nearly nothing in the Fourth Amendment may remain, because you have no right to privacy in your home or in your vehicle.

But if you bet that the Court’s Conservative majority will somehow find that the founders explicitly wanted corporations to have a right to privacy, you’ll earn some folding money.

The naked desire by the Furious Five to achieve their ideological goals as quickly as possible is most likely, uncontrollable. Chief Justice Roberts is being increasingly sidelined because he wants to (at least) try to hide their ideological agenda. But the Furious Five doesn’t have any interest in hiding what they’re doing.

No more calling “balls and strikes” as Roberts said during his 2005 Senate confirmation hearing.

In closing, the music world has reacted strongly to the Supreme Court ruling on abortion. NPR has a nice roundup of what artists are saying and doing in response. Check it out if you have time.

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Wednesday Wake Up Call – June 29, 2022

The Daily Escape:

Asheville morning, June 28, 2022 – iPhone photo by Wrongo. The log house we’re renting this week is at 4,000’ above sea level.

Wake up calls by the Wrongologist rarely happen on Wednesdays, but since the Roberts Court dismantled the line between church and state in public education with Justice Gorsuch’s decision in Kennedy v Bremerton School District, on Monday, it seems right.

Voting 6-3, the Court declared that an Oregon public high school football coach’s post-game prayer sessions with students were Constitutional, whether the students wanted them or not. That made Monday part of a pretty good run for American theocracy:

“The decision came less than a week after the court ruled, by the same vote, that Maine could not exclude religious schools from a state tuition program.”

The line between church and state is being erased before our eyes. Gorsuch, cherry-picking the facts of the case, wrote that football coach Kennedy had sought only to offer a brief, silent and solitary prayer:

“Respect for religious expressions is indispensable to life in a free and diverse republic — whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head…”

Justice Sotomayor responded that the public nature of his prayers and his stature as a leader and role model meant that students felt forced to participate, whatever their religion and whether they wanted to or not. She gave a different account of the facts, taking account of a longer time period:

“Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer…”

In an unusual move, Sotomayor’s dissent included photographs showing Mr. Kennedy kneeling with players, which debunked Gorsuch’s selective use of facts.

Do you really think that this decision would have been the same if those prayers had been offered by a Muslim?

In the process of ruling for Mr. Kennedy, the majority overturned a major precedent on the First Amendment’s establishment clause, Lemon v. Kurtzman. That ruling was decided by an 8-0 vote under Republican Chief Justice Warren Burger. As an aside, John Dean (of Watergate fame) has said that during the Nixon administration, Burger threatened to resign from the Court if Nixon nominated a woman to it.

It came to be known as the Lemon test, which required courts to consider whether the challenged government practice had a secular purpose, whether its primary effect is to advance or inhibit religion, and whether it fosters excessive government entanglement with religion.

Sotomayor acknowledged that while the Lemon test had been frequently criticized by various members of the court:

“The court now goes much further…overruling Lemon entirely and in all contexts.”

So, by tossing out Lemon and saying that Coach Kennedy was not speaking for the school because it was an extra-curricular activity, the barrier between prayer and secular school has been permanently breached.

In today’s America, outside money will fund your culture wars grievance in the courts. The longer you can keep your case moving up through the courts, the better chance you have of running into a conservative Christian judge who will find a precedent for the White people’s Jesus in the Bill of Rights.

Teachers will now feel empowered to “invite” a group to pray with them. A few kids will jump in right away, while others will look around uncomfortably and gradually agree to join in, because the social opprobrium that comes with refusing is huge for kids. And since the person inviting you to pray is an authority figure: a teacher, coach, or principal, you really risk a lot by having them decide you aren’t:  A.Good.Christian.

When given the choice between upholding traditional case law or creating de novo judicial principles, the Roberts Court is almost always going to favor the latter.

Wrongo isn’t a lawyer, but many lawyers are now pointing to the extraordinarily shoddy nature of the Court’s majority opinions, including all three of the precedent-shattering ones the Court has issued over the last week.

It’s time to wake up America! Why is it so hard for Christians in the United States to just practice their religion without involving the rest of us?

We’re getting very close to the establishment of a default Christian American religion. We know that there are many public school teachers who have been silent despite their sincere religious beliefs while at school. Now they will be actively pressured by their pastors to begin proselytizing while on the clock.

To help you wake up, let’s travel to the 2022 Glastonbury music festival, which always creates great live music. On June 25, Olivia Rodrigo and Lily Allen dedicated the latter’s song “Fuck You” repurposed to express anger at five of the six Conservative members of the court.

Rodrigo named the Justices one by one, while Allen raised alternating middle fingers to them:

These artists aren’t afraid of controversy. Millions of us now feel exactly the same.

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Sunday Cartoon Blogging – June 26, 2022

(New columns will be light and variable for the next week, since Wrongo and Ms. Right are attending grandson Conor’s wedding in NC. Regular programming will resume on July 6.)

We’re not talking about the Supreme Court or the J6 news this morning. We’ll leave that for the cartoons below. Instead, let’s focus on an enlightening article from Curbed: “Hoboken Hasn’t Had a Traffic Death in Four Years. What’s It Doing Right?”:

“Hoboken feels downright roomy. Wander down the wide, busy sidewalks of Washington Street, the city’s main strip…and one thing becomes clear….A pedestrian doesn’t have to play the…perilous game of New York City crosswalk chicken, where you squint through the windows of a massive metal box to catch a glimpse of another speeding metal box whose driver doesn’t see you.”

More:

“Few drivers park next to crosswalks in Hoboken because they can’t. Those spots are blocked off with bike racks or planters or storm drains or extra sidewalk space for pedestrians or vertical plastic pylons that deter all but the boldest delivery-truck drivers. Stand at a corner, and you can see what is coming toward you, and drivers can see you too, and you don’t have to step out into the road and risk your life to do it.”

This concept is called Vision Zero, a strategy that municipalities across the US and abroad have adopted that seeks to alter traffic and engage pedestrians to lessen the severity of accidents. In total, Hoboken has had three traffic fatalities since 2015.

As Hoboken’s streets get safer, the rest of America is getting less safe. Traffic fatalities in NYC were up 44% percent in the first quarter of 2022. Hoboken has empowered it’s pedestrians and every corner makes it clear they have the right of way. Hoboken’s streak of zero fatalities could end at any time, and eventually will, but that’s no reason for other cities and towns not to enable similar change. On to cartoons.

Somebody should remind the Conservative ideologue Justices that America is a multi-belief country:

It’s on the ballot in November:

Clarence rewrites the 2nd Amendment:

Now concealed carry has multiple meanings:

The scales of justice get a Conservative makeover:

The J6 hearings have inspired criticism from Texas. The late Molly Ivins referred to Texas as the “national laboratory for bad government”:

Uvalde ,TX failures give new meaning to an old idea:

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Saturday (Un) Soother, Supreme Court Edition – June 25, 2022

The Daily Escape:

North River, Marshfield, MA – June 2022 photo by Laurie France

Roe overturned. Gun laws on the books since the Taft administration overturned. Miranda weakened. The separation of church and state required by the First Amendment, no longer Constitutional.

Remember when Republicans railed against “unelected, activist judges”? They always meant judges appointed by Democrats. Here’s a quote from the National Review:

“The Left views the judicial branch as no different from the executive or legislative branches. To them, judges are supposed to ‘take sides,’ making sure that some political interests win and others lose.”

Or, this from a Baptist minister in 2014:

“Unelected liberal activist judge delivers Michigan to Big Faggotry.”

As always, Conservatives were projecting their actual views as the views of their opposition.

Today, we do have unelected activist judges running America, and they are Conservatives. We’re living in an ahistorical time: There are six justices who are practicing Catholics. Chief Justice John Roberts and Justices Amy Coney Barrett, Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Brett Kavanaugh.

Five routinely vote as a bloc. There have only been 15 Catholic justices (out of 115 justices total) in the history of the Supreme Court. Forty percent of all Catholic justices are now sitting on the Court.

The Conservative majority on the Court has walked away from Stare Decisis, the doctrine that courts will adhere to precedent when making their decisions. Stare decisis means “to stand by things decided” in Latin.

Here’s how stare decisis has evaporated: On Thursday, the Court said that the individual right to bear arms is an inviolable fundamental right, meaning states cannot infringe the right to carry a gun. Clarence Thomas held that a NY statute enacted during the Taft administration was not part of the American tradition of regulating firearms.

The right to an abortion, in place for 50 years, was overturned and sent back to the states because it’s just not as fundamental as the God-given right to have a gun which you can use to shoot up elementary schools.

The NY gun law dates from 1913. The right to abortion was decided in 1973. But the radical judges tout the notion that the former violated a fundamental right, while the latter isn’t even a thing.

Also on Thursday, the Conservative justices voted 6-3 to block lawsuits against police who neglect to read the Miranda warning, (“You have the right to remain silent”). It also includes language about Constitutional protections against self-incrimination. From Alito’s opinion:

“A violation of Miranda does not necessarily constitute a violation of the Constitution, and therefore such a violation does not constitute ‘the deprivation of [a] right…secured by the Constitution,'”

Miranda was decided in 1966, but Alito now says it’s a “prophylactic rule”, meaning that Miranda warnings aren’t required by the Constitution, but are instead judicially-crafted rules designed to protect people’s core Fifth Amendment right against compelled self-incrimination. His signal to prosecutors is clear: Miranda is suspect, and we’re willing to entertain arguments that we should do away with it for good.

So the Conservative wing has knocked off three “settled law” items in one week, despite each – John Roberts, Clarence Thomas, Gorsuch, and Kavanaugh – all saying under oath some version of what Roberts said during his confirmation hearing:

“…[Roe] is settled as a precedent of the Court, entitled to respect under principles of stare decisis. It is settled.”

You should know that Alito and Barrett didn’t lie quite so egregiously about Roe during their hearings, although with hindsight, both were disingenuous. Obviously, a judge who lies under oath should be removed from office, but that won’t happen since “everyone” knew they were lying.

These Conservative unelected activist judges are placing ideology above precedent.

That elections have consequences was the key takeaway from the 2016 presidential election won by Trump. Democrats didn’t turn out for Hillary Clinton as much as they had turned out for Obama or that would turn out for Biden. Trump won because he got 78,000 more votes than Clinton in just three counties in Wisconsin, Pennsylvania, and Michigan, and thus got to appoint three reactionary justices.

Reactionary justices will issue reactionary rulings. And there are many more to come.

But it’s time to forget (if you can) about the Supreme Court gutting legal precedent for ideology. It’s time for your Saturday Soother.

Our long-term lawn guy has decided to close his business. It’s a combination of higher costs that couldn’t be passed along to customers and getting too old for outdoor physical labor. So we’re scrambling at the height of the season.

It will be a warm weekend in the Northeast, so grab a seat outdoors in a shady spot, put on your wireless headphones and listen to “As steals the morn” composed by Handel in 1740. “As Steals the Morn” is adapted from Shakespeare’s “The Tempest”. Amanda Forsythe and Thomas Cooley are the soloists, and their voices are beautiful:

Lyric:

As steals the morn upon the night,
And melts the shades away:
So Truth does Fancy’s charm dissolve,
And rising Reason puts to flight
The fumes that did the mind involve,
Restoring intellectual day.

 

Intellectual day is gone, my friends.

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