Category: Constitutional Issues

Why Democrats Haven’t Closed the Midterm Gap

The Daily Escape:

Sunrise, Duxbury, MA – September 2022 photo by Juergen Roth Photography

Fall is here and the midterms are 41 days away. And CBS reports that the Republicans have a lead, but it’s still shrinking. CBS’s analysts still have the GOP picking up the House, but it is still within reach:

“While they’re still in a very good position to capture a House majority, that majority looks narrower today than it ever has, having ticked down for the second straight month to 223 seats in our model estimate. Republicans were at 226 in August and 230 in July.”

CBS says that voters think the stakes are high, and for many it’s more than the pocketbook issues of gas prices and inflation. BTW, Wrongo paid $2.95/gal on Monday. Here’s a chart from CBS:

Voters believe by two to one that a Republican Congress would lead to women getting fewer rights and freedoms than they have now.

Other polls talk about whether people view the Parties’ candidates favorably or unfavorably, the WaPo reviewed more than 20 polls across the swing states including Arizona, Georgia, Michigan, New Hampshire, Pennsylvania, and Wisconsin. And in most cases, the Trump-aligned candidates have huge unfavorability deficits, but these popularity gaps are mostly larger than the expected voting margins in the actual head-to-head contests.

Let’s go back to the CBS poll for the reason why the Democrats are still trailing:

Despite having their voters’ enthusiasm grow, Democrats are still less likely than Republicans to say they’ll definitely vote. They haven’t closed that gap.

That makes the campaign right now about the Dems defining what the contest is about for their own voters and for independents. Once Dems get beyond the voters most concerned with abortion, they still have work to do making this midterm election look like other midterms where they’ve won.

The WaPo’s Aaron Blake tells us that the difference is that Republican and right-leaning swing voters see an obnoxious Republican and think: He may be a jerk, but he’s our jerk.

Democrats don’t do that. They fight among themselves about the virtue of their candidates.

Republicans have much more party loyalty than Democrats. Steve M. at No More Mister Nice Blog says it’s not hard to see why:

“Their favorite media sources have engaged in pure cheerleading for their party (and relentless demonization of the other party) for decades. The rest of the media is described as “liberal,” but it’s always ready to shiv a Democrat.”

He asks:

“Was there a single positive news story published about Joe Biden between the fall of Afghanistan and the passage of the Inflation Reduction Act?”

So it’s not surprising that these Republican jerks can be competitive.

Republicans are pretty much all on the same page now. They are a minority Party at the national level and that requires them to rely on Party unity to regain power.

Wrongo doesn’t know what to tell you. Everyone needs to communicate that if the Republican Party takes control of both Houses of Congress they will:

  • Work to make voting more difficult or meaningless. They just voted against disclosing dark money in our elections, thereby reinforcing the damage done by Citizens United.
  • Try to have their Republican legislatures decide who won an election by nullifying the power of state supreme courts to check rogue legislatures.
  • Work to weaken Social Security and Medicaid.
  • Try to pass a national abortion ban. And if that’s not enough, they are leaning towards a ban on contraception.
  • Try to end the right to same sex marriage.
  • Work to make America a one-religion state.

None of the above is an exaggeration. Republicans are pushing all of these terrible things right now.

Beyond that, here’s something to remind your friends who still aren’t sure how they’ll vote: Republicans historically don’t care about the issues they keep going on about on cable news, or in their incessant negative election ads. And they won’t do anything to address them if they win.

They have no real governing agenda.  And there’s only one way to stop them.

Get out the vote.

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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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Saturday Soother – September 17, 2022

The Daily Escape:

View from Schnebly Hill Road, Sedona, AZ – August 2022 photo by Cathy Franklin

As we discussed yesterday, DeSantis is one of many Republican politicians who are working overtime to convince MAGA-land that they are yuuge Christians. Here’s DeSantis in February, talking to students at the very Christian Hillsdale College:

“Put on the full armor of God. Stand firm against the left’s schemes. You will face flaming arrows, but if you have the shield of faith, you will overcome them, and in Florida we walk the line here. And I can tell you this, I have only begun to fight.”

The Tampa Bay Times takes issue with their governor: (emphasis by Wrongo)

“The biblical reference DeSantis is using is from Ephesians 6, and calls on Christians to spiritually arm themselves against the “devil’s schemes.” In DeSantis’ speeches, he has replaced the ”devil” with “the left” as he tries to mobilize supporters ahead of his reelection in November and possibly a run for the White House in 2024.”

It’s dangerous that Republicans on the ballot in November are openly saying that the only true Americans are Christians. They’re portraying the battle against their political opponents as between good and evil.

The Tampa Bay Times (TBT) says that it has some religious leaders worrying that such rhetoric could mobilize fringe groups who may be prone to violence. From the TBT: (emphasis by Wrongo)

“Christian nationalism for many Conservatives has become a political identity, and unlike Conservative politicians in the past who used their faith to inform their arguments, DeSantis is more aggressive, using war imagery to describe the political debates as a battle over who will be the better American.”

The TBT quotes Philip Gorski, a comparative-history sociologist at Yale University who co-wrote the book “The Flag and the Cross: White Nationalism and the Threat to American Democracy”:

“The full armor of God passage is a favorite amongst certain types of Pentecostals who really do see the world in terms of spiritual warfare,”

They also quote Allyson Shortle, a political science professor at the University of Oklahoma who has co-written the book “The Everyday Crusade: Christian Nationalism in American Politics”:

“I think DeSantis has really stood out as someone who has effectively used this type of God talk and used these types of Christian nationalist talking points to curry favor…”

For Republicans, talking about the importance of faith is nothing new, and debates about how visible Christianity should be in our society — whether it be prayer in schools or religious symbols outside American courthouses — have been ongoing for decades.

But there is something different emerging: A strain of Conservative thought that sees the country’s politics as an open battle between good and evil. TBT quotes Marilyn Mayo, senior research fellow at the Anti-Defamation League’s Center on Extremism:

“There’s always been candidates who espouse Christian values, but what I think is very different is you have many people on the right and the far right seeing the current situation in the US as a battle, an absolute battle, between good and evil….And the good are the mostly white, Christian conservatives. And on the other side are the liberals, progressives, left-wingers, and certainly the LGBTQ community…. They really see this as a battle and paint the other side as…an evil force that needs to be defeated.”

Shortle says that Christian nationalism is the belief that a “true” American should be Christian. Some Christian national extremists say that the US is no longer a Christian nation, that it’s been taken over by secular forces.

Over the summer, Florida social studies teachers were alarmed that a civics training session led by DeSantis’ administration had a “Christian nationalism philosophy that was baked into everything” that was taught.

The initiative emphasized that the Founding Fathers did not desire a strict separation of state and church. State trainers also told teachers that the 1962 US Supreme Court case that found school-sponsored prayer violated the establishment clause of the First Amendment was unjustly decided.

In July, DeSantis was endorsed by Moms for Liberty, a group that focuses on adding Christian nationals to school boards across America. It has more than 200 chapters and 95,000 members in 38 states. At the group’s first national summit, DeSantis said that he intended to “leave Florida to God and to our children better than I found it.”

And what is “better” is in the eye of the beholder.

On to our Saturday Soother. We had our first sub 50° night on Thursday. Soon the indoor plants will return to the sunroom.

Take a few moments of your Saturday and listen and watch “Bachianas Brasileiras No. 5” by Heitor Villa-Lobos. He wrote a series of nine suites between 1930 and 1945. Here the 5th is played by Hauser on cello and Petrit Çeku on guitar in 2017 at the Lisinski Concert Hall in Zagreb:

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Sunday Cartoon Blogging – September 11, 2022

It’s 21 years since the attack on the World Trade Center and the Pentagon. As Michael de Adder says:

Twenty one years on, America is more at war with itself than with any foreign terrorists, despite having troops deployed in 80 countries. Our society and our democracy are threatened from within in a way that Osama bin Laden could never have managed. And where are we today? Cartoonist Mike Luckovich has a thought:

If ever so briefly after that fateful day. Today we face threats that might end our democracy:

  • We’ve nearly lost our social cohesion
  • We aren’t dealing with income inequality
  • We’re seeing racism grow
  • We see clear threats to the right to vote, or whether our votes will even count if we cast them

In these 21 years, Republicans have moved from being the Party of national security to the Party of grievance and anger. As Elliot Ackerman wrote last year in Foreign Affairs:

“From Caesar’s Rome to Napoleon’s France, history shows that when a republic couples a large standing military with dysfunctional domestic politics, democracy doesn’t last long. The US today meets both conditions.”

MAGA asks the wrong question:

When you have no policies, this is what you get:

Let’s close today with a song by Mary Chapin Carpenter that she wrote back on the first anniversary of 9/11. Carpenter was inspired by an interview with Jim Horch, an ironworker who was among the early responders at the WTC site. Here’s part of what Horch said:

“My responsibility at the site was to try to remove big pieces of steel. The building fell so hard there wasn’t even concrete. It was dust
.I started to feel the presence of spirits
not very long after I was there. The energy that was there was absolutely incredible and
it was more than just the people that I was working with
it was energy left behind
.One day when I was working, I felt this energy and it felt lost and it wanted to go home but it didn’t know how to go home and it came to me to go to Grand Central Station. When I got off the subway, I walked into the Great Room. Into where the constellation is in the ceiling. And I walked around the perimeter and
out of the building. I didn’t feel the energy anymore. I could feel it leave.”

And here’s Carpenter’s “Grand Central Station”:

 

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Tuesday Wake Up Call, Voter Fraud Edition – August 16, 2022

The Daily Escape:

Monsoon season, Sonoran Desert, Tucson, AZ –  August 2022 photo by Rene Martinez

The November mid-term election is 12 weeks away. Some Republicans who do not accept our country’s democratic tenets are focusing on getting elected in the battleground states in an effort to energize a future coup. From the WaPo:

“…in the six critical battlegrounds that ultimately decided the 2020 presidential contest, where Trump most fiercely contested the results…..Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin, at least 54 winners out of 87 contests — more than 62% of nominees — have embraced the former president’s false claims.”

As an aside, reporters must stop using the term “election deniers”. It doesn’t convey what these Republicans believe. They know Trump lost, but they tried to steal the 2020 election anyway.

And they’re promising to steal the next one. These people call the government their “enemy”. Now, they’re calling for violence against the FBI. They say our elections can’t possibly be fair, yet they’re doing all they can to make them less fair.

There are many tools in the GOP tool kit to help a state create election-related chaos. They could decertify voting machines or block the electronic counting of ballots. They could empower their legislatures to determine how many of a presidential candidate’s votes are actually counted.

The GOP says that our local electoral processes and voting machines are highly suspect. In 2020 we saw Republican efforts to find voter fraud in several states, all of which failed. Still, in 2022, the GOP persists in saying there are voting machines that flipped votes in 2020 from Trump to Biden.

The gold standard for voting in America is hand-marked paper ballots. They leave a paper trail that is hard to challenge. Today states (including Connecticut where Wrongo votes) use digital scanners to read those hand-marked ballots. The machine tabulators can be checked before voting for accuracy and ballots can be re-scanned in random precincts afterwards to verify totals, along with hand counts.

Verified Voting a non-partisan firm that promotes the responsible use of technology in elections, rates the integrity of voting machines at the county level throughout the US. They have an interactive US map that allows anyone to check the quality of the voting machines in their county. Here’s a screenshot image of that interactive map:

You should go to the interactive map for greater detail. The green portion of the map represents the 69.2% of US registered voters that use highly reliable hand-marked paper ballots. The yellow portion of the map represents the 23.4% of our registered voters that use mostly reliable Ballot Marking Devices (BMD), with marked pre-printed ballots; some print summaries of voter selections, often with those selections encoded in barcodes or QR codes. Together, these account for 92.6% of America’s registered voters.

The red portion of the map represents the 7.4% of American voters who use a less-reliable direct recording electronic (DRE) voting system. DREs allow voters to record their selections directly into computer memory.

Despite what Republicans think, most of America can vote with total confidence that their voting machines are accurate, and that their votes will be counted accurately. So relax Republicans, election fraud just isn’t very possible in the US.

But there are plenty of other shenanigans that can be pulled at the local and state level. And that’s a concern given what the GOP is focusing on for the November mid-terms. They could take away voting rights by canceling voter registrations. They can close polling places or gerrymander more districts. The WaPo has a chart showing how close the GOP is to controlling the voting process in the six battleground states:

By weakening trust in our election system, Republicans are paving the way for America to become a one-party state led by an authoritarian strongman. They intend to take away the single and best power the people have, our vote. These Republicans aren’t election deniers, they’re anti-democracy. If they are elected, they will end democracy as we know it.

Time to wake up America! We can’t leave the vote-counting to people who won’t count all of our votes! America has a long tradition of subverting the voting process and denying millions of people the right to vote, and these Republicans want to take us right back to those days in our past. To stop that, they must be beaten in November’s mid-terms.

To help you wake up, watch, and listen to “Queen Bee” played by Taj Mahal and friends in this Playing For Change video, that features Ben Harper, Rosanne Cash, and many others from around the world.

The tune is from Taj Mahal’s 1997 album, “Señor Blues”, which won a Grammy. It’s an album that Wrongo highly recommends:

 

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Sunday Cartoon Blogging – August 7, 2022

The Labor Department on Friday reported that the economy added a seasonally adjusted 528,000 jobs in July, far more than the 258,000 economists expected to see. And the headline rate of unemployment  fell to 3.5%, back to the multi-decade low we experienced just before the start of the pandemic.

With the upward revisions to the last two months, there are now 22,000 more jobs than there were just before the pandemic. Further, the mix of these new jobs skews away from the lower paying sectors toward higher paying ones. The WSJ reports that in July, there were about a million more jobs combined in the so-called goods-producing sectors—manufacturing, construction, mining and logging—plus the retail trade and warehousing and transportation sectors, than in February 2020. And there were about a million fewer jobs in the remaining service-sector industries.

Leisure and hospitality jobs, which were the most hard-hit during the pandemic, rose by 96,000, but are still -7.1% below their pre-pandemic peak. And within the leisure and hospitality sector, food and drink establishments added 74,100 jobs, but are still about 635,000, or -5.1% below their pre-pandemic peak.

But it wasn’t all good news. The number of people employed as a share of the working-age population was 60% last month, below February 2020’s 61.2%. If it could return to that percentage, there would be millions more Americans working. An interesting fact in the employment report was that there were 656,000 more people out sick last month than in July 2019. On to cartoons.

The Kansas vote dropped on the wicked witch:

What Kansas taught us this week:

Pelosi sparks a flame:

Alex Jones finally grabbed by his appendage:

The US kills another al-Qaeda leader, but nothing changes in Afghanistan:

RIP Bill Russell:

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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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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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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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