Category: US Constitutional Issues

July 4, 2023

The Daily Escape:

Kilauea Caldera showing a blackened lava lake, Hawaii Volcanoes NP – June 2023 photo by J. Wei for the NPS

Kilauea stopped erupting on June 19, but the threat of another eruption is always present. That could be a metaphor for America in 2023: We could erupt at any moment.

The 1960s were an optimistic time. There were demonstrations for civil rights and against the Vietnam War. There was police violence against the demonstrators, and assassinations of JFK and MLK. But a throughline of those times was a belief that righteous change was possible.

Wrongo graduated from Georgetown in 1966. His specialty was American colonial history. Those also were times of optimism, and there also were factions and different priorities and beliefs throughout the land.

Back in the 18th century, we overcame our differences, declared our independence, and formed a nation.

Now, 247 years after our revolution, it seems that staying united is difficult, if not impossible. Today, facts are fungible, and so is the truth. As Wrongo stated in his last column, about one third of Americans fail to vote. They are apathetic because they can’t see what would change if they did vote.

Having one third of Americans regularly fail to vote has surrendered control over our politics and our courts to a minority, mostly a few at the top, supported by some people in the middle, and enabled by the apathy of most of the rest of us.

Worse, most of those in today’s controlling minority are extremists. They have exploited the imperfections in our system to impose a return to the social mores and politics of an earlier time.

The best example of this is the string of far-Right decisions handed down in 2022 by the Supreme (Extreme) Court. From Slate’s Mark Joseph Stern:

“Consider the issues that SCOTUS has resolved….The constitutional right to abortion: gone. States’ ability to limit guns in public: gone….Effective constraints around separation of church and state: gone. The bar on prayer in public schools: gone. Effective enforcement of Miranda warnings: gone. The ability to sue violent border agents: gone. The Environmental Protection Agency’s authority to regulate greenhouse gases at power plants: gone.”

Vast areas of law that took decades to establish were overturned in a year.

And in 2023, the Court’s reactionary majority has continued to overturn more of the American social order. Those rulings: ending affirmative action, preventing the forgiveness of student loans and an egregious decision on gay rights, show that the Court has lost any sense of judicial restraint.

The Court is no longer “calling balls and strikes” as Chief Justice John Roberts famously said. In fact, there could be a highlight reel of umpire John Roberts’ blown calls. It’s clear that the Extreme Court wants to go further, and given today’s politics, there’s zero risk of the other two branches of government agreeing to override their decisions.

So, on this Fourth of July weekend, let’s hit pause. Let’s take time to reflect on how our founders were able to weave a message that united many factions against a common enemy. It should be very clear that at this point that the common enemy to unite against is the partisan power of a partisan minority.

Real power no longer lies with the People or with their politicians, it resides in the Supreme Court. The antiquated and undemocratic elements of our government: the Electoral College, lifetime tenure for Supreme Court justices and the malapportionment of the Senate, would require Constitutional amendments to fix. But we’re too divided to amend the Constitution.

Imagine attempting to fix the Senate’s malapportionment by getting a Constitutional amendment through that same malapportioned Senate.

But there may be reason for optimism in the fact that the two of this term’s negative rulings related to college students (admissions and debt relief). Those issues will motivate young voters in 2024.

Here are some numbers that give some cause for optimism about younger voters helping to change our politics:

  • Voters 47 and younger will be in the majority beginning in 2028.
  • Younger voters have historically voted in significantly higher numbers for Democrats.
  • Young women, especially young Hispanics and young African Americans are substantially higher voters for Democrats.
  • Fifty-five percent of white male voters under 45 voted Democratic in 2022, as did 52% of younger white females.

Here are a few other facts that should make us optimistic going forward:

  • Abortion was youth’s #1 issue in 2022.
  • Mid-term voter turnout for people under 29 was 23%, lower than 2018 (28%), but much higher than in 2014 (13%).
  • Michigan had the highest youth turnout in the country (37%).
  • Two swing states, Michigan and Pennsylvania, were among the four states to have the highest youth turnout in 2022.

To help you reflect on how we might take back control, let’s listen to Neil Diamond’s “Coming to America” performed at the Greek Theater in Los Angles in 2012.

There are many versions of this tune on YouTube, but this one makes the point that virtually all of us are descended from immigrants, in this case, Diamond’s grandmother, who immigrated from Kyiv:

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Sunday Cartoon Blogging – July 2, 2023

We’re back from our Alaska vacation. It was extended two extra days in Seattle courtesy of United Airlines, who cancelled our flight, along with thousands of others. To add to United’s bad press, its CEO, Scott Kirby took a private plane out of New York while so many of his customers were grabbing hotel rooms they didn’t want, instead of sleeping in their own beds.

Wrongo promised more photos from Alaska:

June 2023 iPhone photo by Wrongo

This iceberg broke off from the Shakes Glacier, which is located in the Stikine-LeConte Wilderness of the Tongass National Forest. It stood about 20’ above the waterline. Since about 10% of a berg is above water, about 220’ of this bad boy was underwater in Shakes Lake which is about 800′ deep. We rode in a jetboat about 25 miles from Wrangell, Alaska to see it.

This week’s cartoons are about the recent decisions by the Supreme Court. SCOTUS released opinions in three big cases, the affirmative action case, the student loan forgiveness case, and the anti-LGBT+ case. Wrongo hasn’t had time to read them carefully, but the dissents by Justices Kagan, Sotomayor and Jackson made it clear that these decisions suck.

These cases show us a few things: First, that the concept of “standing” before the court means only what the Supremes say it means. Previously, It was about where the parties in a lawsuit “stand” in relation to each other. Back in the recent past, a party had to prove they had standing before a court considers the merits of a case. But:

  • In the gay website case, the plaintiff trying to inflict damage on the LGBT+ community didn’t need to show standing. The Colorado web designer, who the Supremes said could refuse to make wedding websites for gay couples, cited a request from a man who told the AP, he had never asked her to do any work for him. The state of Colorado said she didn’t have sufficient grounds to sue, but the Supremes ultimately said that she did.
  • In Biden vs. Nebraska, the plaintiffs in the student loan case couldn’t show injury. The Supremes said that the plaintiff, the state of Missouri, had standing because Mohela a student loan servicer, is an instrumentality of the state. Mohela has the independent power to sue and be sued, but it refused to sue in this case, and the state sued on its behalf. Justice Kagan in her dissent said:

“From the first page to the last, today’s opinion departs from the demands of judicial restraint…At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent.”

Second, we’ve learned that the 14th Amendment, which was originally written to insure that Black people had Constitutional rights, no longer applies to them. Now that the Conservative majority on the Court has ended racism, maybe we’ll get a new holiday to celebrate!

Third, this is what happens when a third of America doesn’t vote. In 2016, we were told to elect Hillary because of the Supreme Court, but America didn’t like the “mean” lady, and Trump was elected. Despite what you thought about her, this growing list of Supreme Court decisions that so many people disagree with are a direct result of that loss.

There are two kinds of freedom: Freedom to, and freedom from. But your freedom isn’t supposed to hurt anybody else. And historically when it did, we enacted laws curtailing that behavior, but no longer. Now, we’re out there all on our own.

Society is moving backwards. Wrongo grew up in the 1960s, those good old days when politicians and the courts strived to promote equality. Now society’s divided. Its coarser, and much less equal. “It’s on you to bootstrap your way to the top” is what the Supreme Court is telling us. We’re born and after that, you’re on your own. However your life plays out, it’s your fault. On to cartoons.

No ladder required:

SCOTUS suggestion for getting ahead:

A case of blind justice:

Blinded by the White:

Some of the Supremes’ action is definitely affirmative:

OTOH, the Supremes overruled the independent legislature theory:

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The Two-Edged Sword Of Federalism

The Daily Escape:

Mount Evans Road, 14,100′, Idaho Springs, CO – May 26, 2023 photo by Reid Neureiter

Here at the Wrongologist, we often talk about Constitutional rights, but we rarely talk about Federalism. So today, let’s lean into federal vs. states’ rights. We’ll start with the recent Supreme Court decision in Sackett vs. EPA, which concerned the power of the EPA to regulate wetlands. Last week, the Supreme Court concluded that the Clean Water Act only applies to wetlands with “a continuous surface connection” to bodies of water.

This defined what waterbodies are considered waters of the United States (WOTUS), an issue that has been in the courts for years. The ruling narrowed the scope of the Clean Water Act, and severely limits the federal government’s ability to regulate wetlands.

Justice Samuel Alito’s opinion affirmed the principle that bureaucrats cannot broadly define statutory language. Alito’s opinion struck a blow for federalism. Federalism is a system of government in which the same territory is controlled by two levels of government. The US Constitution originally divided the exercise of political power between one national and many state governments. The national government is given control over matters affecting the whole nation. All other issues were reserved to the states.

  • Article VI of the Constitution contains the Supremacy Clause, which says that when the laws of the federal government are in conflict with the laws of a state’s government, the federal law supersedes the state law.
  • Article I, Section 8 of the Constitution describes specific powers which belong to the federal government. These powers are referred to as enumerated powers.
  • The Tenth Amendment reserves to the states those powers that are not delegated to the federal government.

The Sackett vs. EPA decision is another step in the Right-wing program to move as much federal government rule-making authority as possible to the states. This is the continuation of Nixon’s efforts to shrink the federal government’s power by devolving decisions to state and local governments. The best recent example of this is the Supreme Court’s Dobbs decision on abortion that wiped out the precedent set in Roe v. Wade that guaranteed a national right to abortion and passed that responsibility back to the states.

At the same time, the Right is moving to nationalize policy on social issues, from what books to allow on library shelves to limits on transgender rights, a rollback of state environmental actions, and an attack on anything that can be labeled as “woke.”

So we’ve got Red states pushing to centralize decisions about social and cultural issues in Washington, while the Right-wing Supreme Court pushes devolution of voting rights, abortion rights, and indeed national agency rule-making (EPA) to the states.

This 2023 brand of two-way Republican federalism is upending the delicate balance of power between the federal government and state governments. It raises questions about the allocation of authority, cooperation, and the ability of the national government even to define what is a pressing national issue.

Today’s Washington gridlock makes policymaking nearly impossible. That has shifted much of today’s policymaking to the states, where the Parties often have comfortable majorities. Many states (39) have government trifectas, with one Party controlling the governorship while holding majorities in the legislature, making policymaking simpler than in a divided and polarized US Congress.

Interest group activists have followed this trend and focused their efforts on these 39 states. Much of a state’s policies – abortion, voting rights, gun control, immigration, LGBT rights, healthcare, or taxation – are on widely divergent paths. For example:

  • In Democratic states it is easy to vote; in Republican states there are many barriers to voting.
  • In Democratic states fewer people are medically uninsured; in Republican states there are more uninsured people.
  • In Democratic states access to abortion is easier; in Republican states it is harder, if not criminalized.

Although federalism (for now) seems to protect the country from presidents amassing power in dictatorial ways, anti-democratic figures (think DeSantis and Abbott) are able, because of the resurgence of state-level policymaking, to transform Republican states into laboratories against democracy.

The Covid pandemic also put federalism to the test. The response to the pandemic highlighted the tension between national coordination and state autonomy. While the federal government provided guidance and resources, the implementation of measures like lockdowns, mask mandates, and vaccination campaigns, was largely left to individual states. This decentralized approach led to significant variations in pandemic response across the country, creating challenges in coordinating efforts and potentially exacerbating the spread of the virus.

Federalism properly implemented, brings government closer to the people and holds it accountable. But when badly implemented, you get the USA in 2023: A country trending toward autocracy.

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Sunday Cartoon Blogging – April 30, 2023

This month, Texas Senate Republicans passed three bills allowing religion into public schools. From Vox:

“The first, SB 1515, would require public schools to display the Ten Commandments in a “conspicuous place” in classrooms. The other bill, SB 1396, would permit public schools to set aside time for students and staff members to pray or read the Bible and other religious texts. The third, SB 1556, would give employees the right to pray or “engage in religious speech” while on the job.”

Some of this sounds unconstitutional. You can be certain that plenty of Texans will be happy to comply as maliciously as possible next fall.

The three bills now go to the Texas House for approval. They follow Texas’s SB 797, which took effect in 2021 and requires schools to display “In God We Trust” signs.

When the Texas Right say they want to bring religion back into public schools, they mean they want to make public schools more Christian. This flies in the face of America becoming noticeably less religious over the past 20 years:  Weekly service attendance and religious self-identification are both down 20% overall, which translates to about 50 million fewer Americans than two decades ago.

This is ironic: If religious identification is to increase, it will have to come from “importing” traditional believers from the global south. But few of them are white. So that’s a problem for Trumpism and the reactionary Right. On to cartoons.

State-sponsored religion is hard to swallow:

Biden announces he’s running:

How do young voters fit in the race between these geriatrics?

A certain debate this time:

House Republicans pass a debt ceiling bill:

McCarthy wonders why Biden won’t talk:

Daylight come and he got to go home:

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Saturday Soother – April 22, 2023

The Daily Escape:

Rainbow, Blue Ridge Parkway, VA – April 2023 photo by Tim Lewis

American carnage is real, my friend. Just not in the way that Trump stated in his inaugural rant. The American carnage Wrongo speaks of is the gun attacks made on others by angry or fearful lone American gunmen. From Charlie Sykes at The Bulwark:

“Ringing the wrong doorbell, making a wrong turn, getting in the wrong car, and an errant basketball. A wounded teenager, a dead young woman, cheerleaders in critical condition, and a 6-year-old girl and her father shot.”

The Indiana man who shot a 16-year-old boy for knocking on his door is described by his grandson as a conspiracy theorist and avid consumer of right-wing media: (emphasis by Wrongo)

“I feel like a lot of people of that generation are caught up in this 24 hour news cycle of fear and paranoia perpetuated by some…news stations. And he was fully into that, sitting and watching Fox News all day, every day blaring in his living room…..that doesn’t necessarily lead people to be racist, but it reinforces and galvanizes racist people. And their beliefs.”

Right wing propaganda is about fear. And some people bathe in it for hours a day. So, while the rest of us enjoy walks in the park or a trip to the market, they’re terrified of every swarthy stranger at the Publix or Home Depot.

Add this level of fear to the implicit permission given gun owners by “stand your ground” laws, and you have the elements of an environment of violence.  Vox provides background:

“Some of these shootings took place in states with so-called “stand your ground” laws, which offer expansive legal protections for people who use deadly force against others out of self-defense….and experts have noted that the laws can bolster a “shoot first, ask later” mentality.”

More: (emphasis by Wrongo)

“Under such laws — which exist in some form in 38 states — people can use lethal force if they reasonably believe their life is under threat, and they don’t have to take steps to retreat or avoid the confrontation first. That’s a stark change from prior laws….In the past, the “castle doctrine,” which has been adopted by most states, allowed people to use deadly force if a person entered their home.

Stand your ground laws take that idea one step further, with some making such allowances no matter where a person is, whether that’s a public place, their vehicle or their office.”

Add pervasive fear and permission to stand your ground to the proliferation of guns in America (aided by the Supreme Court’s expansive reading of the Second Amendment) and the US has come undone. From Umair Haque: (emphasis by Haque)

“Did you know that America isn’t just the most violent nation in the industrialized world — but an off the charts extreme outlier? Iceland is the world’s most peaceful society. Canada is the world’s 12th most peaceful society. America is the… 129th.”

That’s 129 out of 163 countries tracked. Further evidence is in the recent TSA statistics about intercepting guns about to be carried on to planes:

“Officers with the Transportation Security Administration confiscated more than 1,500 guns at airport security checkpoints in the US during the first quarter of the year, more than 93% of which were loaded. The 1,508 firearms equate to an average of 16.8 intercepted each day during the first three months of the year…”

The gun gives its owner the power of life and death. No training needed. The power of God right there in your hand. It’s very attractive to a certain type of person. And we cultivate that type of personality in America.

We have no safety nets, no social bonds, no norms of decency. That means we ask each other to bear the unbearable.

We don’t invest enough in safety nets, insurance, public goods, healthcare, education, and, in most states, gun laws. According to Haque, it’s all justified by politicians saying, “I can bear the unbearable — why can’t they?” But we can’t do that forever. Someone will snap, and the frustration of bearing the unbearable pours out as rage that’s visited on whomever is nearest, or easiest to hurt. That’s American Exceptionalism at work. America’s extreme violence, caused in large part by the twisted ideology that asks Americans to bear unbearable things.

Enough about guns and people snapping. It’s time for our Saturday Soother! Here on the Fields of Wrong, our crabapple trees are in bloom. They’re being visited by both birds and bees, each looking for high calorie snacks. The bees for the flowers, the birds for the buds. Our spring clean-up is lagging, so there’s still much to do.

But first, let’s relax for a few minutes. Grab a comfy chair near a big window and watch and listen to Valentina Lisitsa, a Ukrainian-American pianist, play “Rustle of Spring”, a solo piano piece written by Norwegian composer Christian Sinding in 1896:

If you are interested in amazing piano technique, watch Lisitsa perform Liszt’s Hungarian Rhapsody No. 2.

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Monday Wake Up Call- April 17, 2023

The Daily Escape:

Sunrise, Woodenshoe Tulip Festival with Mt. Hood in background, WA – April 2023 photo by Mitch Schreiber Photography

If you drink beer, you know that Bud Lite is terrible. Wrongo shares this opinion with the GOP, but for different reasons.

Wrongo hates the taste. Conservatives hate Bud Light because of a recent Bud Light promotion featuring influencer Dylan Mulvaney, a transgender woman. Mulvaney posted a sponsored video on her Instagram account announcing that Bud Light had sent her a customized beer can with her face on it.

Bud sent the can to Mulvaney in celebration of the first anniversary of her transition.

Some on the Right are calling the brew a “Woke Mind Virus”. But shouldn’t the real focus be on the MAGA Mind Virus? The Right has created a kind of Bud-lash fever: Some have machine gunned or crushed cases of the beer with heavy equipment. Then a person or persons moved on to making bomb treats at a Bud plant in Van Nuys, CA. Several Budweiser facilities across the nation have also been targeted with bomb threats.

Many on the Right call for a boycott of the bestselling beer in the country. If that sounds ludicrous, it’s because it is. It’s also indicative of where we are in America today.

Trans issues are front and center in the GOP-inspired culture war. Anti-trans sentiment is on display by many on the right, targeting children’s health, sports, drag shows, and health care. It’s seen throughout Conservative media. Anti-trans legislation is growing. And it’s even entering the mainstream. From Vox:

“Mainstream publications like the NY Times increasingly follow the lead of anti-trans agitators, treating what should be understood as a fundamental human rights battle more like a semantic “debate,” fixating on terminology and labels and medical minutiae, instead of humanizing trans and nonbinary people and their experiences.”

Vox reports that this has created a contentious situation at the Times. In February, contributors and members of the Times’s staff posted an open letter protesting the paper’s escalating bias toward anti-trans talking points.

But the Bud-lash fever may be breaking. The Daily Beast reported that on Saturday, the Twitter account for the National Republican Campaign Committee (NRCC) removed a fundraising post that trashed Bud Lite. Apparently, they realized that Anheuser-Busch isn’t some progressive company. In 2022, they gave the NRCC $464,505. The NRCC has decided that they like political donations more than they hate trans people.

Bud’s partnership with Mulvaney also triggered a nearly $5 billion drop in the Anheuser-Busch stock value as of last Wednesday.

On Friday, Anheuser-Busch released a tepid statement from its CEO, Brendan Whitworth, saying he is “responsible for ensuring every consumer feels proud of the beer we brew”:

“We never intended to be part of a discussion that divides people. We are in the business of bringing people together over a beer.”

The company cancelled an event in Missouri last week, citing safety concerns for its employees. Wrongo is against banning TikTok. Here’s a TikTok video of Bud Lite cans being crushed by a steam roller. Where else would we see news like this?

Boycotts are a tradition in America, so like all the others, this one will fade away. The difference with this one is how wound up Conservatives get about something as trivial as a one minute video that pitches Bud Lite.

Time to wake up America! These clowns will try to take you down in a hail of gun fire, saying it’s for God and Freedom, (loosely defined). They just can’t abide sharing the country (or political power) with people who aren’t just like them.

To help you wake up, watch and listen to “All I Ask of You” from the musical “Phantom of the Opera” which had its last Broadway performance yesterday. It opened on Broadway in January of 1988. Since then, Phantom has played almost 14,000 performances (the most in history) to more than 20 million people, grossing over $1.3 billion. An estimated 6,500 people have been employed by the production – including over 400 actors.

Here the song is performed by Michael Ball and Sarah Brightman (the original Christine) at London’s Royal Albert Hall Celebration for Andrew Lloyd Webber, who wrote the play:

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Sunday Cartoon Blogging – April 16, 2023

America is in a literal death spiral. The more mass shootings take place, the more innocent people die. And then more of America’s Republican politicians tell us that only more guns will solve the problem.

Republicans say that school shootings would be minimized if we would just hire a security guard to cover the door of every school. But with school budgets under pressure, where will the money come from to hire them? And how would the GOP’s plan for out-gunning the next mass shooter turn out?

We need to see mass shooting as a form of domestic terrorism. We’ve moved from having ten Constitutional Amendments that most of us cared deeply about to a place where the Right only really cares about the Second Amendment. Maybe we shouldn’t be all that surprised that there are so many Americans who care more about guns than they care about people.

For a certain group, that seems to be what America is all about. If they cared about freedom, nothing would be more of a priority than defending every person’s right to go about their daily lives without the threat of violence. If we really cared about the sanctity of human life, we would prioritize people over guns. On to cartoons.

The unholy trio who prioritize guns over people:

The GOP’s platform is turning into a cliff:

When your anti-human policy list is this long, you must be a Republican:

It isn’t a game:

Clarence is tracking mud into the Court:

Rep. Jim Jordan plans to investigate AG Bragg in NYC:

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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?

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Sunday Cartoon Blogging – March 5, 2023

Not sure who buys their drugs at Walgreen’s but this seems like a bad management decision:

“The nation’s second-largest pharmacy chain confirmed Thursday that it will not dispense abortion pills in several states where they remain legal — acting out of an abundance of caution amid a shifting policy landscape, threats from state officials and pressure from anti-abortion activists.”

It seems that Republican state attorneys general in about 24 states wrote to Walgreens in February, threatening legal action if the company continued distributing the drugs in their states.

These abortion pills are the nation’s most frequently used method for ending a pregnancy.

The company subsequently told the states that it will not dispense abortion pills either by mail or at their brick-and-mortar locations in those states.

This is where America is at: Large corporations are doing more to obstruct access to abortion than the law requires. On to cartoons.

Women’s history month at the Supreme Court:

Wrongo and Ms. Right watched the Oscar-nominated movie “Women Talking” last night. It’s message is that women should no longer accept things they cannot change; that it’s time to change the things they can’t accept. Like the Dobbs decision.

Tennessee outlaws drag. And they’re so pro-life that they want to execute any woman who gets an abortion.:

Make facts your weapon:

Disney today:

Dilbert exits:

Jimmy’s with us for a little while longer:

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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.

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