Supreme Court – Page 5 – The Wrongologist

New Legal “Doctrines” Help Supreme Court Push Farther Right

The Daily Escape:

Sunset, midtown Manhattan viewed from the Williamsburg Bridge – March 2023 photo by Mike Davis

Plenty of ink has been scrawled or printed describing how the Supreme Court (SCOTUS) has navigated its way into being the supreme executive branch of our government. The SCOTUS has long been a bastion of Conservative thought in America, but since gaining its 6-person supermajority, we’re seeing them bring forward novel legal concepts to help move decisions towards the Right’s agenda.

The best example is the Court’s majority creating new “doctrines” to help deliver rulings that their clients on the Right argue for. Prior to embracing “the major questions” doctrine and the “Independent state legislature” doctrine, Conservative members of the court used to insist on “textualism” to achieve their goals. Textualism says that when interpreting the Constitution, judges should confine themselves only to the words of the Constitution. Originalism says that if the words are unclear, then judges need to consult historical sources to determine their meaning at the time of ratification.

But we’re now seeing cases where a statute’s words aren’t delivering a decision that the Supremes are aiming for, so using these new doctrines give them a pretext for breaking their own rules.

That’s how they blew up the EPA’s Clean Power Rule. Eight months ago, SCOTUS first invoked the “major questions doctrine” in a majority opinion, using it to limit the Environmental Protection Agency’s power to address climate change.

Last week, the court seemed ready to use it again, to kill Biden’s proposed student loan relief. More on the new “doctrines” from the NYT’s Adam Liptak: (brackets by Wrongo)

“On the last day of the 2021-22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and [agreed] to hear a case presenting “the independent state legislature doctrine” – neither of which had been called “doctrines” there before.”

The rationale behind the major questions doctrine is the contention by the Justices that the agencies must receive explicit direction from Congress to address a particular issue if action by the agency is of political or economic significance. Conveniently, this “doctrine” gives the Court’s Conservative supermajority a tool to achieve their preferred outcomes when textualism doesn’t get them there.

Liptak quotes Allison Larsen, a law professor at William & Mary:

“The phrase was used just once by any federal judge before 2017, and in only five federal decisions — at any level of court — before 2020,”

But you guessed it, the turning point in 2017 was when Justice Brett Kavanaugh, then a judge on the US Court of Appeals, used the term in a dissent. More from Professor Larsen: (brackets by Wrongo)

“[Using] the word ‘doctrine’ to describe the major questions concept was first used by law professors and then bandied about on blogs…and used as a rallying cry in opinion pieces and programming by those seeking to challenge the administrative state….In 2016 — long before it was anointed a ‘doctrine’ by the Supreme Court — the ‘major questions doctrine’ was featured by name in the annual Federalist Society conference,”

Interestingly, at Kavanaugh’s Supreme Court confirmation hearings, Sen. Amy Klobuchar (D-MN) asked him about the doctrine, calling it “something else that you (Kavanaugh) came up with.” Liptak reports that Kavanaugh responded vaguely that the “major questions doctrine is rooted in Supreme Court precedent.”

In his 2017 dissent, Kavanaugh conceded that “determining whether a rule constitutes a major rule sometimes has a bit of a ‘know it when you see it’ quality.” That’s some real Wavy Gravy right there.

Back to the EPA case: Chief Justice Roberts wrote that the Court’s use of the term was unexceptional:

“It took hold….because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”

Turning to the student loan debt relief case, in the oral arguments, Roberts argued that since loan relief is expensive, it must be authorized by Congress. But as Justice Elena Kagan said in the same oral argument, “Congress could not have made this much more clear, adding, “We deal with congressional statutes every day that are really confusing. This one is not.”

Welcome to 2023, where when cases come out the way the Conservative justices want, it’s just fine. But if the legal text gets in the way, the “major questions doctrine” allows them to make the explicit text disappear because they’re willing to engage in bad faith readings of statutes to get the job done.

So much for the rule of law.

If under a Republican president, when the Supremes need to find a sweeping executive branch authority to justify a Conservative wet dream policy, they’d find it without even a whiff of self-reflection.

Will we ever make up the ground now being lost to the decisions by these ideologues?

Monday Wake Up Call, North Carolina Edition – March 6, 2023

The Daily Escape:

Early blooming Bradford Pear trees, near Cana, VA – March 2023 photo by Lee Ogle

North Carolina is in today’s news for two reasons: First, North Carolina Republicans, who control the state legislature, announced a deal to expand Medicaid under the Affordable Care Act. North Carolina would be the 40th state to expand Medicaid after a decade of Republican resistance.

From the WaPo:

“The deal marks a stark turnaround for Republican leaders that played out over years in North Carolina and in states across the country, as more and more governors and legislatures expanded Medicaid to low-income residents.”

NC’s governor, Democrat Roy Moore will sign the bill if it gets to his desk. Passage would extend Medicaid coverage to 600,000 of the state’s poor citizens. Dozens of rural hospitals in NC closed during Covid, so maybe it dawned on NC’s Republican Party that dead constituents have a difficult time voting for them.

As with other states, this will allow North Carolina, at no cost to the state government, to give health insurance to the state’s working poor. The federal government will pay for 90% of the cost, and the rest will be covered by a new tax on hospitals and insurance companies.

Wrongo wrote about how the Medicaid expansion was a great source of revenue to state governments here. The NC House Speaker, Republican Tim Moore said that since the federal government will pay North Carolina a $1.8 billion bonus if expansion passes, the GOP was motivated to sign on.

The extra money is part of the 2021 stimulus package signed into law by Biden, that offered signing bonuses to states that expanded Medicaid. In NC’s case, $1.8 billion. Biden reacted:

“This is what I’m talking about….That’ll be 40 states who’ve expanded. 10 more to go.”

It’s doubtful that any other states will sign on this year.

Shouldn’t Red states be taking care of their residents? Instead of wasting time with anti-trans bills and anti-woke bullshit? But that’s too much to expect.

A second North Carolina story involves a case in front of the US Supreme Court, Moore vs. Harper. Last fall the Supremes heard this case about the “Independent State Legislature Theory“. The case started out as a challenge to a Republican-gerrymandered voting map that the NC Supreme Court ruled was unconstitutionally partisan.

NC’s GOP then appealed to the US Supreme Court, arguing that the Constitution’s election clause gives state legislatures freedom to do whatever they decide about their own elections, and that no court can intervene in that. A decision was expected in June, 2023.

But the Supremes may not get a chance to weigh in, since the case is back before the NC high court. Why you ask? Well the NC Supreme Court is elected. And in November, the Republicans won a majority of the seats on the court.

Unsurprisingly, the court decided to review two cases that were decided against Republicans. What’s remarkable is the extent to which NC Republicans are willing to go in order to take control over the outcome of elections away from voters. And they’re not even trying to be covert about it.

On February 3, the NC Supreme Court granted a petition to rehear the case. That means the state supreme court may reconsider a case that is already in front of the US Supreme Court.

On March 2, the US Supreme Court asked for a supplemental briefing. They’re asking the NC Republicans, (the plaintiffs that originally challenged the maps), and the Biden administration to submit supplemental briefings about what effects the state court’s reconsideration might have on the Supreme Court’s ultimate decision.

So the legal jousting about voting rights in North Carolina continues. Maybe the state’s decision to embrace Medicare expansion after a decade means that we simply have to wait for the GOP to come around to an idea that most Americans favor. In the case of voting rights, Wrongo suggests continuing the fight, not waiting.

Time to wake up America! The Biden administration won’t be sending free money to the states to get them to embrace universal voting rights. That may have worked with Medicare, but not with voting rights.

To help you wake up, watch, and listen to Roy Rogers play “Walkin Blues” from his video “Slide Guitar For Rock & Blues” on a 12 string resonator guitar. Rogers makes it his own, and the playing and vocals are terrific:

This is dedicated to our friend Rene S, who also plays a mean guitar. “Walkin Blues” is a blues standard that’s been recorded countless times, often with different lyrics. Son House, Robert Johnson, Muddy Waters, Eric Clapton and the Grateful Dead all have their own versions.

Monday Wake Up Call – January 9, 2023

The Daily Escape:

Kennebunk, ME – January 2023 photo by Eric Storm Photography

Buried in the McCarthy debacle last week was some good news on the abortion front. From the NYT:

“For the first time, retail pharmacies, from corner drugstores to major chains like CVS and Walgreens, will be allowed to offer abortion pills in the United States under a regulatory change made Tuesday by the Food and Drug Administration.”

The online magazine STAT asked an interesting question: (emphasis by Wrongo)

“When the Food and Drug Administration lifted some — but not all — of its restrictions on an abortion pill this week, it raised questions about why these rules were there in the first place. Mifepristone, the drug in question, has been used by over 3.7 million Americans to end early pregnancies since its approval in 2000, is more than 97% effective, tends to have only mild side effects such as cramping, with severe ones occurring in fewer than 0.5% of patients. So why was it on a list of prescription drugs requiring extra precautions and red tape, alongside opioid painkillers?”

Reform the Supreme Court, Part II

The Daily Escape:

Winter at Bryce Canyon NP, UT – January 2023 photo by Michael Andrew Just

The Supreme Court (SCOTUS) has a legitimacy crisis. Put simply, many people no longer think the Supreme Court can be trusted to uphold Constitutional rights or follow judicial norms. This is the result of the Conservative supermajority, driven by its partisan agenda that is increasingly hostile to precedent and separation of powers.

The Conservative supermajority threatens that it will not observe Constitutional guardrails. As an example, our democracy depends on citizens having a meaningful right to vote. Right now, that’s in jeopardy because the Court has upheld voter suppression laws and has provided for partisan gerrymandering to continue.

Also, the Conservative supermajority has taken away a woman’s control over her body. It has also taken direct aim at the tradition of separation of church and state.

SCOTUS ignores its own internal check of stare decisis by writing sweeping decisions seemingly intended to foreshadow future decisions that could further endanger American liberty as we know it.

So, it’s time to reform the Court by building better checks and balances. The power to make these changes sits primarily with Congress. So if reform is to happen, reformers are going to have to control both Houses of Congress.

Let’s talk about some of the options for reform.

I. Expanding the Court

This means increasing the number of justices. The number of justices isn’t set by the Constitution, so Congress can change it at any time, and has done so seven times. The first Supreme Court had only six justices.

Given that Congress can and has altered the size of the Court, it could do that again. One idea is to add two justices in every presidential term. Alicia Bannon of the Brennan Center for Justice wrote an analysis looking at this idea. Basically, it would mean every president gets to appoint two justices, regardless of how many justices wind up serving on the court.

One potential issue is that SCOTUS could regularly have an even number of justices, which isn’t unprecedented, but it makes the possibility of split decisions more likely. There’s also the possibility that it could make presidential elections even more of a proxy vote for Supreme Court justices.

The challenges are that this change would require 60 votes in the Senate to overcome a filibuster. And since Republicans control the House, it’s unlikely to happen soon.

II. Ending life tenure

The big upside to this proposal is that it is much less dependent on justices either retiring or dying. It could also help slow the increasing push to nominate younger justices who could serve on the court for longer.

Prior to 1970, Supreme Court Justices served an average term of 14.9 years. Post 1970, they’ve served an average term of 26.1 years. But the five most recently appointed Supreme Court Justices to leave the court served an average of 27.5 years.

Today, most countries in the world have limited judicial tenure, either through mandatory retirement ages or fixed terms. In the US, only one state supreme court (RI) allows for life tenure.

Properly implemented, term limits could give each president the opportunity to appoint the same number of Supreme Court justices each term. Thus, reducing partisan gamesmanship around individual confirmations while making the Court more representative.

One suggestion from the American Academy of Arts and Sciences calls for an 18-year term with regular appointments made every two years to replace outgoing justices. This would not only limit life tenure, but it would also guarantee every president a stable number of two appointments, assuring a reliable translation of voters’ political will into the federal judiciary.

III. Limiting the Court’s jurisdiction

Congress can limit the kinds of cases that can be appealed to the Supreme Court. Along with the ability to define the jurisdictions of lower courts, this “jurisdiction stripping” can be used to curtail the power of the Court overall. This also might force certain aspects of the law back to the political branches of government.

This happened recently under the Military Commissions Act of 2006, which tried to strip Guantanamo Bay detainees of the ability to appeal cases in federal courts. This could only become law if passed by both Houses of Congress and signed by the president.

IV. Create a binding code of ethics

The Supreme Court is the least accountable part of our government; it does not even have a binding code of ethics. We should institute a binding code of ethics, including rules to prevent conflicts of interest. We should adopt transparency measures, including live-streaming of oral arguments and decisions.

Of the above, term limits should be enacted, and a code of ethics should be established. Those are realistic goals. When the Constitution was adopted, the average life expectancy was 36 years, not today’s 80 years.

We need to forge a new consensus about SCOTUS. That requires us to do the political work of negotiating and renegotiating what the Court should look like, and how it should operate.

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.

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”:

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 5^th is played by Hauser on cello and Petrit Çeku on guitar in 2017 at the Lisinski Concert Hall in Zagreb:

Corporate Money Is Flowing To Senate Republicans

The Daily Escape:

Sunset, Housatonic River, New Milford CT – 2022 photo by Tony Vengrove

There are just 55 days left until the 2022 midterm elections, and Wrongo’s crystal ball remains cloudy. For example, take the US Senate race in Pennsylvania. Democrat John Fetterman leads Republican Mehmet Oz by 48.5% to 40.4% in the 535 average of polls as of September 8. Sounds like a big lead, no?

But the US Chamber of Commerce told Axios on Sept. 11 that it was donating $3 million to support Oz’s campaign. Who is the US Chamber? They are an industry group that represents virtually every major American corporation. From Judd Legum:

“Corporations — whether individually or through a trade organization like the Chamber — are prohibited from donating $3 million directly to Oz’s campaign. (Corporate PAC donations are capped at $5,000 per election.) So instead, the Chamber is routing the money through the Senate Leadership Fund, a Super PAC set up by Republican Leader Mitch McConnell….The Senate Leadership Fund can raise unlimited funds from any source and spend them to boost Oz and other Republican candidates.”

In a statement, Chamber EVP Neil Bradley described Oz as “a pro-business champion” and said Fetterman “subscribes to a far-left, government-knows-best approach.”

So, America’s big corporations are against Fetterman. Sounds like a reason to be for him.

Legum takes a deep dive into where the US Chamber gets the millions it is donating to promote Oz’s candidacy: It comes from dues paid by member corporations. And which corporations are members? The Chamber keeps its membership list secret. More from Legum:

“We know, however, that virtually every major American corporation is a member of the Chamber. The Chamber’s board of directors includes representatives from FedEx, Bristol Myers Squibb, Facebook, AT&T, United Airlines, Abbott, 3M, Microsoft, Deloitte, Fidelity, Chevron, Intuit, Xerox, Pfizer, Dow, AllState, Delta, and many others.”

And most member companies don’t have a board seat. Their donations are secret as well, but CVS disclosed that it paid $500,000 to the Chamber in 2021 and $325,000 to a related organization, the US Chamber Institute for Legal Reform. And CVS isn’t a board member! Imagine how much the really big guns paid.

A few major corporations aren’t members. Apple, for example, resigned its membership in 2009 in protest of the Chamber’s policy on climate change.

Sadly, corporations are not accountable (or even visible) in their support of the extreme policies of the GOP when they donate through vehicles like the US Chamber. We have to hope that as the Republican message gets ever more extreme, corporations will have a harder time continuing their support for this type of Citizens United chicanery.

This shows just how scummy our politics have become with the help of the Roberts Court and the Federalist Society. If it’s illegal to donate a certain amount directly to this person or organization, we simply create a PAC or a Super-PAC, and then donate huge sums directly to them.

If creating a PAC achieves this result, how is the individual limitation protecting democracy?

There’s an old joke about how if you know a little about politics, your issues are guns, abortion and taxes. If you know a lot about politics, your issue is campaign finance reform.

Pennsylvania is one of a handful of states that could determine which Party holds the majority in the Senate. While Fetterman has a lead, Pennsylvania is still a competitive state, with money pouring into its governor’s race as well. This $3 million from the Chamber could have a real impact on the outcome.

It’s important to understand that more than 40% of the Pennsylvania electorate seems to want what Oz is offering. That’s scary, and it speaks to something that many in the media don’t want to address. They’re actually scared to address what the Republican Party has become. It isn’t surprising because the media are both a large part of the problem and not a part of the solution.

And when Biden accurately calls out what the Republican Party has become, when he says that Republican behavior and beliefs are inimical to what America is supposed to be, the media says he’s being divisive.

Oz is an example of what happens when one Party creates an existential situation out of whole cloth. When it’s backed by their 30 years of increasing extremism, the existential threat to democracy is now real.

No, America’s corporations aren’t going to save you. Giving money and time to Democratic Senate candidates like Fetterman, or Georgia’s Warnock (up by 2%), or Arizona’s Kelly (up by 2%), or New Hampshire’s Hassan (up by 4%), or Ohio’s Ryan (up by 1%), or North Carolina’s Beasley (up by 1%) MIGHT save you.

Do what you can.

The Mid-Terms Landscape

The Daily Escape:

Sunrise, Grand Teton NP, MT – June 2022 photo by Charyn

On Monday, Robert Hubbell had a very useful column about how some of the anti-Trump narratives are already baked into the politics of the mid-terms (barring some huge unforeseen event): (emphasis by Wrongo)

“…it is likely that the political throughlines are set for the midterms. That is both good and bad for America and Democrats. The topics for debate have been identified and the rules of engagement have been set….Let the media do its job, which, in this instance, will consist of talking about the same half-dozen stories non-stop.”

Hubbell outlines that the narratives that will dominate the news from now until November 8 are unlikely to produce political earthquakes:

“It is unlikely that the DOJ will indict anyone in Trump’s inner circle (including Trump) before the midterms. For example, in a filing last week, the DOJ said its investigation regarding the improper removal and retention of defense secrets was in the “early stages.” Nearly every Trump administration witness appearing before a federal grand jury was examined by the J6 Committee six to eight months ago. And the only grand jury subpoenas published in the press indicate that the investigations were opened in 2022 and that the subpoenas were issued in June.”

Wrongo agrees. This is also true for the Georgia grand jury investigation into Trump’s efforts to overturn Biden’s 2020 win in Georgia. Few realize the grand jury that Fulton County District Attorney Fani Willis is presenting evidence to cannot indict anyone. According to the Georgia Recorder: (emphasis and brackets by Wrongo)

“In contrast to a typical grand jury, the 23 members on the special grand jury do not have the power to indict anyone but can [only] make recommendations to Fulton County District Attorney Fani Willis.”

So, when DA Willis has sufficient evidence to indict, she must then impanel a new grand jury, present evidence, and ask for an indictment. Not likely to happen before November.

While the FBI search of Mar-a-Lago (MAL) has Trump on every front page, the DOJ says its investigation regarding the Mar-a-Lago search is in the “early stages.” The way America’s legal back and forth works, it is doubtful that we will see any facts contained in the affidavit the FBI used to justify the application for the search warrant before November.

Trump made a court filing requesting a Special Master (instead of the DOJ) review the documents removed from MAL. However Trump’s new request is decided, it’s likely to be appealed to the Eleventh Circuit, if not the Supreme Court, which will take time. That means we can expect Trump and the GOP to continue undermining the DOJ and FBI right through the mid-terms.

And there will be few new facts to indict Trump in the court of public opinion.

It’s likely we will see a steady drip of information about the recovered documents, just like Tuesday’s NYT article saying that, including the FBI seizure, Trump took more than 300 classified documents when he left office. That seems to say it couldn’t have been an oversight.

Finally, the January 6th Committee returns to work in September, but as of today, there are no hearings scheduled. Mike Pence will never testify. Since he still has presidential ambitions, testifying would put him on the wrong side of Trump supporters, making a run in 2024 problematic.

While the January 6th hearings have moved the needle on US public opinion, it’s difficult to what they will add to what we know in the time remaining for this 117^th Congress.

Of course, running against Trump is the Dem’s dream, but there are other issues out there, like abortion. In the new NBC News poll, abortion rights was only the seventh most important issue:

But it’s only one poll, and voter enthusiasm and turnout win races. The Morning Consult has the Democrats’ enthusiasm at 62%, up dramatically from 52% on July 31. That’s comparable to the GOP’s 65%.

Dan Pfeiffer believes the political environment has shifted in Democrats’ favor because of the abortion issue:

“Democratic efforts to turn this midterm from a progress report on Democratic governance into a referendum on GOP extremism failed to connect until the Dobbs decision. That was when Republican extremism went from an abstract argument to lived reality.”

Dems need to remind voters that unemployment is at record lows, that its Democrats who fight for economic progress, and to preserve women’s right to an abortion. Democrats can’t keep people from worrying about inflation, but they can influence whether it is the top issue to voters. They can keep the heat on Republicans for their extremist views on abortion and on Trump’s extremism and his role in the Jan. 6 insurrection.

The hope is that these realities overtake concern about inflation as the main issue for a big swath of Independent voters.

That could be the difference.

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