Tag: Supreme Court Balance

The Colorado Case

The Daily Escape:

Squam Lake, NH – December 2023 photo by Robert John Kozlow

”If you aren’t paying attention to the courts, you aren’t paying attention to democracy”. – Mark E. Elias

The Colorado Supreme Court’s ruling that Trump is disqualified from appearing on the state’s presidential primary ballot because he engaged in insurrection was a bombshell. The plaintiffs included four Republican voters and officials, and two Independents. The organization bringing and managing the lawsuit was CREW and its chief attorney, Marc Elias, quoted above.

Some people are saying that it doesn’t seem right to toss him off of the ballot without a conviction. At issue is whether Trump is such a danger to the country that he’s ineligible to be a candidate at all, and the Colorado Court’s reasoning for this seems very tight. It’s not an interpretation about his rhetoric or an evaluation of his political extremism. It’s solely a determination of whether he took an oath to protect the Constitution, and then fomented an insurrection against the government. And although the verdict was 4-3, all seven judges agreed that Trump had fomented insurrection.

The Court found that he’s ineligible. Regarding the “he must be convicted to be ineligible” argument: The criminal cases against Trump that are wending their way through the courts are varied in their accusations. None of them were brought solely or even primarily to prevent Trump from being elected president, although the Colorado case was. The others charge real crimes. The importance of those cases transcends the individual who committed them. A failure to bring them would set a precedent that we as a country think these behaviors permissible by a future president.

As for letting the people decide about Trump, we did that already. Biden got seven million more votes than Trump. Yet Trump’s still spouting the Big Lie that the election was stolen. Even after 60 court cases, Trump couldn’t prove there was any election fraud. Conservative Judge Luttig says that the 14th Amendment isn’t about removing someone from qualifying for office. Rather it’s about meeting a baseline qualification in order to be considered a QUALIFIED candidate.

There’s also an argument on the Right that Trump shouldn’t be in court at all. But we have a Justice system and in the Colorado case, the legal process was followed. The Court didn’t take any shortcuts; no extraordinary maneuvers were made.

Jon V Last asks why Republicans were on one side of the law in 2020 and on a different side today: (brackets by Wrongo)

“So ask yourself this: All throughout December 2020, everyone insisted that, no matter how foolish or baseless President Trump’s claims might seem, he was entitled to pursue the legal process vigorously to its end.

Why is that not true in this case? Why is it that Trump…[in 2020 was] entitled to have his day in court, but the forces [today] looking to apply different laws to a different end are not?”

Last reminds us that many of the same people who insisted that Trump could pursue all available legal remedies in 2020 wanted a result that would keep him in power. Now, they’re outraged that the people in state of Colorado also pursued legal remedies and won a result that might keep him from returning to power. There’s more from Jon Last. Those who are complaining about the result in Colorado are complaining not about the legal process, but the legal result:

“Have you ever noticed how, whenever Trump does something terrible, there is always an argument that holding him accountable can only help him?

You can’t impeach him in 2020, because it’ll just make him stronger.

You can’t impeach him in 2021, because you’ll turn him into a martyr.

You can’t raid Mar-a-Lago to take back classified documents because you’ll rile up his base.

/snip/

There is a…..helplessness to that thinking: A wicked man does immoral and illegal things—and society’s reaction is to say that we must indulge his depredations, because if we tried to hold him accountable then he would become even worse.

Is there any other aspect of life in which Americans take that view?

That’s not how parents deal with children.

It’s not how regulatory agencies deal with corporations.

And it’s not how the justice system deals with criminals.”

From Robert Hubbell: (emphasis by Wrongo)

“Every hesitation, reservation, and exhortation to ‘make an exception’ because of potential violence or political chaos is an invitation to abandon the Constitution. We do so at our grave peril and possibly for the first, last, and only time—because if we set our great charter aside once, there is no logical stopping point for setting it aside again when it serves the pleasure of a president who views the Constitution as an obstacle rather than a safeguard.”

The Colorado Supreme Court’s decision to ban Donald Trump from the state’s primary ballot for engaging in insurrection is probably on its way to the US Supreme Court. Wrongo isn’t a lawyer, so you should look elsewhere for a discussion of the finer points of the law in this case, and he has no confidence that the Supremes will decide against Trump.

But Wrongo wants to address one item, the question of whether a candidate should be tried while running for office. Just the Mar-a-Lago charges of mishandling highly classified information and then obstructing their return makes it clear that he should be tried regardless of his candidacy. The government needed to secure the secret documents Trump had stashed all over his club. Trump thwarted those efforts. And the case was developed before Trump declared himself as a candidate for 2024.

A thought experiment: Let’s imagine that Robert E. Lee or Jefferson Davis had run for US president in 1868. Either of them could probably win a solid South and be competitive in several border states. Making sure that they didn’t win at the ballot box what they couldn’t on the battlefield is why Clause 3 was included in the 14th Amendment in July, 1868.

Would supporters of Lee or Davis have complained that they were ineligible for public office? Certainly! But, too bad. Insurrection and rebellion (still) have consequences. And nobody said that they had to be convicted before being ineligible.

When a president of the US loses an election and attempts to stay in power through violence, there really is no way to deal with it that doesn’t have a political component. But that means nothing to the merits of the case. Should we prosecute it only to the point that the ex-president decides to run again, and then drop it?

The whole Republican “let the voters decide” talking point was trotted out after the Colorado decision. It’s hilarious. We did that. We did let the voters decide. Biden won. And Trump refused to accept the results and sent a violent mob to overturn it. That’s the whole point of this case. We must apply the Constitution and the rule of law to Trump in the same way it would be applied to any other citizen.

Whatever lies ahead, let’s not underestimate the significance of the Colorado Court findings. They will figure prominently in the outcome in 2024. Our job is to fight for the soul of democracy and for a free and responsible government by popular consent.

Let’s close with a Christmas tune that is new to Wrongo: The Tractors perform their 2009 hit “The Santa Claus Boogie”, from their second album, “Have Yourself a Tractors Christmas”. The band no longer exists, as several of the members have died:

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You Say You Want A Revolution

The Daily Escape:

17 Palms Oasis, Anza-Borrego SP, CA – June 2023 photo by Paulette Donnellon. When Wrongo and Ms. Right lived in LA, we hiked to this spot twice with grandkids.

This year, the Fourth of July just won’t let go of Wrongo. Political historian Eli Merritt has an op-ed in the LA Times: The Fourth of July is all about America’s first principle — the right of revolution:

“This right of resistance against inequality and tyranny is the American way. It is the essence of the American experiment, beginning in the 1760s and 1770s with the colonists’ defiance of the Stamp Act, the Townshend Acts, the Tea Act and the Intolerable Acts; and in the 19th and 20th centuries with the abolitionist movement, women’s suffrage movement, the Emancipation Proclamation, the 13th, 14th, 15th, and 19th amendments, and the civil rights movement; and today with nonviolent fights for racial justice, equal voting rights, LGBTQ+ rights and women’s reproductive rights.”

We’re a country born of revolution. But after the Jan 6 insurrection, people are probably put off by the very idea of it. It’s what Trump’s seditionists did when they stormed the Capitol. Their goal was to prevent, or at least to obstruct, the certification of the 2020 presidential election.

And they did so by summoning the spirit of 1776. But in contrast to the J6 “protesters”, the people who approved the Declaration signed their names to a document. They didn’t wear hoods, masks, or camo gear and beat up people. The country’s “revolution” began with paper, pen and ink, with “revolutionaries” plainly identifying themselves. As Merritt points out:

“…the Declaration of Independence is a nonviolent manifesto. It makes no mention of swords, guns or war. Separately, the Continental Congress called upon American patriots to arm themselves, yet only in self-defense of God-given natural rights.”

Yet here we are in 2023, facing once again a fight for rights that we had already won, says The Guardian’s Rebecca Solnit: (emphasis by Wrongo)

“The first thing to remember about the damage done by the US supreme court this June and the June before is that each majority decision overturns a right that we had won…. What this means is that the right wing of the US supreme court is part of a gang of reactionaries engaging in backlash.”

In the 303 Creative v. Elenis case, the Supreme Court made a decision based on nothing, in which a woman refuses to perform a service she didn’t provide, to a gay couple that didn’t exist, in the name of religious “liberty.” That six Supremes jumped on this case is a travesty. We either back down and accept the direction these extreme Justices are pushing the country toward, or we fight.

Wrongo wants to fight, just like he did in the 1960s. It won’t be easy to win these rights back, but it isn’t impossible. And this from WaPo’s Jennifer Rubin:

“On…Independence Day, which celebrates rebellion against a monarch lacking consent of the governed, it behooves us to dedicate ourselves to robust and authentic democracy: government of the people, by the people, for the people — not by arrogant right-wing justices.”

The Supreme Court is the point of the American Conservative movement’s spear, and it must be our goal to blunt their extremisim. The ballot box is our only way out of this mess, so it will take an immense amount of organizing and effort to overcome the gerrymandering, active voter suppression and massive disinformation campaigns conducted by the media.

The current SCOTUS cannot change our beliefs and values. These rights are ours, regardless of what six Supremes say. From Solnit:

“If you didn’t believe that equal access and rights were wrong yesterday…you don’t have to believe it now. Not just because those rights were denied by six justices….”

The country is on our side. Gallup has a new poll of approve/disapprove of the Supreme Court:

This shows that the people  agree with blunting the power of today’s Supreme Court. The final words go to Solnit:

“…history shows us that when we come together with ferocious commitment to a shared goal we can be more powerful than institutions and governments. The right would like us to feel defeated and powerless. We can feel devastated and still feel powerful or find our power. This is not a time to quit. It’s a time to fight.”

We must take every available measure in our democracy to revoke consent and remedy these unconstitutional decisions. It will require active engagement in all levels of the democratic political process, from local school boards to the presidency. We can’t take any political office for granted.

Help new voters obtain ID and register to vote. Educate yourself about the candidates, vote in the primaries. Get your friends and families to vote. Make sure no seat goes uncontested wherever a GOP politician holds office or runs without opposition.

Above all, do not let them assume that you consent to the loss of our rights.

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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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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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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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Reform The Supreme Court

The Daily Escape:

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

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

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

From Ed Walker: (emphasis by Wrongo)

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

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

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

From Vox’s Ian Millhiser:

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

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

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

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

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

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

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

Non-elected activist judges indeed.

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

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

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

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

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

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

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

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

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

In Federalist 78, Alexander Hamilton writes:

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

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

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

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

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

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

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Thoughts on Alito’s Draft Opinion

Daily Escape:

Chama River, near Abiquiu, NM – 2022 photo by James C. Wilson

Wrongo’s last column spoke about how the Republican Party had become the Party of White Christian Nationalists. And that was before the draft opinion overturning Roe v. Wade was leaked to the world. It seems that this likely decision is a key example of how radical Christians are assuming a political role in America that isn’t dissimilar to the Taliban’s in Afghanistan.

Justice Alito’s draft opinion reinforces the view that there’s a very dangerous Christian movement afoot in our nation. It’s not enough for them to live in a country where they are completely free to practice their own religious beliefs. They require the rest of us to live by their religious code, too.

Two thoughts: First about the Court’s legitimacy in the eyes of the public when they overturn a 50-year-old precedent. The Editorial Board of the WaPo summarized the damage to the legitimacy of the Court that Justice Alito is likely to inflict:

“The Court’s legitimacy rests on the notion that it follows the law, not the personal or ideological preferences of the justices who happen to serve on it at any given time….What brought the Court to its current precipice was not a fundamental shift in American values regarding abortion. It was the [result of] shameless legislative maneuvering of Senate GOP leader Mitch McConnell, who jammed two Trump-nominated justices onto the Court.”

For some time, you’ve been able to predict the votes of Supreme Court Justices by knowing the Party of the president that appointed them. That is particularly true if the issue is either overtly political or a Culture War proxy for Republican Party doctrine.

The American people want to believe the law is fair and impartial, because everyone wants to live in a just and predictable society. But this isn’t what Conservatives want. Their so-called love of religion and love of authority move them to reduce or eliminate voting rights, and now, to eliminate women’s rights.

Second, Wrongo thinks that the Conservative Court has gone a political bridge too far. Most polls show that the rights granted in the Roe v. Wade decision are broadly popular, even among Republicans. And Americans have lived with those rights for almost 50 years, assuming it was an inviolable Constitutional right, you know, like owning a gun.

Heather Cox Richardson says that the Supreme Court has never before taken away a Constitutional right. That means there will certainly be a political backlash against those who have supported this attack against women specifically, and against privacy rights in general.

Pew reports that women are more likely than men to express support for legal abortion (62% vs. 56%). And among adults under age 30, 67% say abortion should be legal in all or most cases, as do 61% of adults in their 30s and 40s.

This describes the foundation of a political movement: Young women as the vanguard of an anti-Republican crusade (pardon the Christian pun). We also know that young people historically have had the lowest voter turnout, dating back to the 1960s. Here’s a graph showing what percentage of women have voted by age group:

Source: Stastia

It was only in 2020 that very young women reached the 50% turnout level for the first time in 50 years. They still lag all other age groups in voting. This means that a wealth of untapped political power lies waiting to be flexed this fall, and overturning Roe is the spark that can light the fire.

Add to that Black and Hispanic women who according to a Guttmacher Institute report are, respectively, three and two times more likely to have an unintended pregnancy than white women. Nationally, Black women had 37% of abortions, white women had 34%, and Hispanic women had 22%. Black women are also more than three times more likely to suffer a pregnancy-related death compared to white women.

Pew also reported that two-thirds of Asian (68%), and Black adults (67%) say abortion should be legal in all or most cases, as do 58% of Hispanic adults.

All of this creates the basis for a national political movement to defeat anti-abortion candidates at local, state, and national levels. Think about how a young woman like Mallory McMorrow who spoke so effectively against the Republican Culture War, could be a leader in the fight.

Larry Sabato’s Crystal Ball lists seven states that offer the biggest potential for a Democratic backlash driven by abortion rights: Arizona, Georgia, Michigan, New Hampshire, North Carolina, Pennsylvania, and Wisconsin. Each of these states has a highly competitive gubernatorial or Senate race on tap for this fall, and several of them have two.

Before you say it’s impossible, remember that in Ireland in 2012, the death of a young woman who had been denied a medically necessary abortion became a rallying cry for the abortion rights movement. In 2018, this Catholic country held a referendum to change their Constitution to legalize abortion, which passed with over 66% support.

The non-Christian-radical path forward is via the ballot box, where women should be poised to lead us to a rebuilt society. Even as the Roberts Court and Republicans turn their backs on the Constitution, we must still embrace it.

The Roberts Court’s radical Christian majority is, intentionally or not, administering a fatal blow to the Court’s legitimacy.

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Sunday Cartoon Blogging – March 27, 2022

The public personas of three women: the late Madeline Albright, Ketanji Brown Jackson and Ginni Thomas were on display last week. Two of them seem destined for important places in history.

You know Albright’s story: A refugee from Hitler and Stalin. A naturalized American, the first woman US Secretary of State (fourth in the line of presidential succession), and a huge influence on US foreign policy in the 1990s. The New Yorker says that she was the first “most powerful woman” in US history.

They report a great story about Albright attending a meeting of the Association of Southeast Asian Nations (ASEAN) in 1998. She and the then-Russian Foreign Minister, Yevgeny Primakov, performed a skit for the assembled diplomats, despite growing tensions between Washington and Moscow over NATO expansion. They did a bit from “West Side Story”, with Albright playing Maria and Primakov playing Tony. To the tune of “America,” the two sang back and forth:

Albright: “America’s nobody’s enemy.”
Primakov: “So why do you practice hegemony?”
Albright: “I want to know what you think of me.”
Primakov: “Look in your file at the K.G.B.!”

Today it’s a different world. It’s hard to imagine Anthony Blinken and Sergei Lavrov doing a skit.

It’s also a different Washington. We’ve now had several female Secretaries of State. We have a female Vice President, and a woman as Treasury Secretary. Not all that Albright advocated or was a part of were with hindsight, the best actions for the US, but she left an indelible mark on the world.

Ginni Thomas won’t ever be able to wear Albright’s shoes (or her pins). From the WaPo we learned that Thomas exchanged at least 29 text messages with then-White House chief of staff Mark Meadows, as both of them strategized about overturning the 2020 election result.

Shortly afterward, her husband became the only justice to dissent when the Court granted access to Donald Trump’s White House records. Ginni Thomas has also since confirmed that she attended the “Stop the Steal” rally that preceded the Jan. 6 insurrection. That means Justice Thomas voted against disclosing information about an attempted coup that Ginni Thomas supported.

It’s ridiculous that Ginni Thomas, who tried to directly influence Meadows and Trump, thinks that we will believe that she would not try to influence her husband. Together they are a stain on public life.

The same day the Thomas scandal broke, Supreme Court nominee Ketanji Brown Jackson told the Senate Judiciary Committee that she would recuse herself from a major case involving Harvard University, where she serves on the governing board. That’s what true public servants do. They respect the norms of civility. On to cartoons.

Ginni’s world:

A fair and sober hearing:

Good question:

A clown show broke out in DC:

The difference:

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The Supreme Court is Becoming Illegitimate

The Daily Escape:

Sunset, Death Valley, CA – photo by Hasanur Khan

From Paul Campos:

“For a long time, the standard right wing judicial nominee dodge regarding Roe v. Wade was that the nominee considered it “settled law.”

What’s that supposed to mean? It’s a reference to what lawyers call stare decisis, which is Latin for “to stand by things decided”. It’s the doctrine of following legal precedent. The idea is that the Court should follow the existing rulings that it has announced, unless there’s a really good reason not to.

Then the question becomes: How really good does the reason have to be? There’s no formulaic answer to that. The criminal guilt standard of “beyond a reasonable doubt” is similar.

We’re here today because on Wednesday, in an unsigned, 5–4 decision, the Supreme Court effectively overturned Roe v. Wade. The five most conservative Republican-appointed justices refused to block Texas’s abortion ban, which allows anyone to sue any individual who “aids or abets” an abortion after six weeks. Remember, that law contains no penalty for making a false claim or filing a suit in bad faith. The purpose of that part of the law is simply harassment, and it’s up to the accused to prove that she wasn’t six weeks pregnant at the time the vigilante made the claim.

This decision renders almost all abortions in Texas illegal for the first time since 1973.

Although the majority didn’t exactly say these words, the upshot of Wednesday’s decision is that the Supreme Court has abandoned the Constitutional right to abortion. Roe is no longer settled law, even though the five justices who voted not to take the case had all testified in Congress that it was settled law.

Others will write detailed, technical analysis about the Court’s non-decision, and the impact on the Roe v. Wade test case coming to the Supreme Court in September. Wrongo prefers to point out that the subversion of American institutions is happening at a rapid pace, and that includes the Supreme Court.

There was an interesting article in The Prospect about how the US is becoming ungovernable in the basic sense of ‘nothing works‘ and ‘nothing can be done simply‘. It is difficult to argue with that, and although it’s coming at us from many different angles, one of the effects is that every decision today is powerfully affected not only by ‘how will it work’, but by ‘what will the opposition be like?’.

The battlefield is increasingly one where results are determined by unconstrained courts, and the country is becoming unmanageable. This is magnified in the Senate, where two Democrats have reacted to the partisan divide by refusing to act so long as the partisan divide exists.

From Justice Kagan’s dissent: (Emphasis by Wrongo)

“Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.

In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-
docket decision making—which every day becomes more unreasoned, inconsistent, and impossible to defend.”

Roe and Casey were at least in theory, settled law. Now, they are no longer.

The Court’s majority decided this madness, not just for Texas, but for the entire country. These earth-shattering decisions used to come only after full briefing and argument. No longer. Now, the shadow docket greases the skids for decisions upholding the Conservative Right’s views on personal rights.

One question that needs to be answered: How will the Texas Taliban-empowered Menstruation Vigilantes know when a pregnancy is older than six weeks?

Conservatives say they are all about personal choice and freedom, except when they’re not.

These are very perilous times, and they call for very big corrections. We’re pretty much at the point in game theory which dictates that the only remaining options are to either stop playing the game, or in this case, for the Democrats to destroy the political influence of Republicans.

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Associate Supreme Court Justice Amy Barrett

The Daily Escape:

Cape Cod pond  with red shack – October 2020 by Michael Blanchette Photography

Amy Coney Barrett is now a Supreme Court Associate Justice.

It is the first time in 151 years (since Edwin Stanton in 1869) that a justice was confirmed by the Senate without the support of a single member of the minority party. Even Sen. Joe Manchin (D-WVA), who backed Brett Kavanaugh in 2018 (and Barrett for her circuit court seat three years ago), didn’t support her this time.

As Marsha Coyle noted on PBS, the Supreme Court went 11 years until 2005 without a change in Justices. In the next four years, the Court saw seven new Justices. Now we’ve seen three more in just four more years.

Justices are staying on the Court longer. In the 19th Century, the average tenure of a Justice was less than 10 years, due mainly to shorter life expectancy. Now that it’s becoming increasingly common for them to serve into their 80s, Justices are serving for 25 years, or more.

All of this is background to what we’ll have to get used to from Amy Barrett in the next few decades, including this quasi-campaign event:

There were understandably a few negative reactions:

Whatever happens going forward, please, please let’s not call her “ACB” as if she is some great legal mind akin to Ruth Bader Ginsburg. Barrett is to RBG what Clarence Thomas is to Thurgood Marshall; a facsimile of a Supreme Court Justice.

The NYT has a series of articles on How to Fix the Supreme Court that are worth your time. In one article, Emily Bazelon says this:

“….Republican dominance over the court is itself counter-majoritarian. Including Amy Barrett, the Party has picked six of the last 10 justices although it has lost the popular vote in six of the last seven presidential elections…”

The Republican Party doesn’t represent the majority of Americans. So it tries to achieve its goals by other means, even if that means perverting the intent of our Constitutional system.

We know that clear majorities of Americans favor reproductive rights, limiting political donations, stricter gun control and reversing climate change. But since the GOP controls the courts, it hopes to prevent these viewpoints from ever becoming law.

Movement conservatives are using a theory of judicial construction (Originalism) that didn’t exist until about 40 years ago. And they’re using it to overturn long-standing precedents, while also inventing novel constructions not found in the Constitution when it suits them (see Shelby County vs. Holder).

Among the options addressed in the Times’ article are: (i) Dividing the work of the Supreme Court into two parts, Constitutional issues and all others that concern interpretation of existing laws and statues. This would establish a Constitutional Court, an idea that several other countries have instituted (among them, France, Germany, and South Africa); (ii) Term limits for Supreme Court Justices; (iii) Adding more Justices to the Supreme Court; and (iv) Expanding the lower Federal Courts.

The Framers rejected the idea of a judicial retirement age. It was envisioned that a lawyer would need a lifetime of experience to become fully versed in the precedents that would govern their decisions as a Supreme Court Justice. But now, we have Amy Barrett serving as a Justice at age 48. The youngest Supreme Court judge ever was Republican Joseph Story, who was 32 when James Madison appointed him.

OTOH, term limits almost certainly require a Constitutional Amendment, since it would create an involuntary retirement from the Court.

Biden has said he will convene a commission to study Supreme Court reform. That kicks the can down the road. This is probably a good idea for now, until we see the decisions made by the current conservative majority in a few of the signature cases coming up this term. There is now a 6-3 MODERATE conservative majority on the Court, and depressingly, a 5-4 REACTIONARY majority on the Court.

For now, all we can do to change the Court is vote out of power those Republicans who denied Obama an appointment, only to cram three Justices through on Trump’s watch. We start by flipping the Senate in November.

Republicans are doing everything they can to lay the groundwork to overturn the election in the courts. The good news is that stopping them is easy: VOTE.

May the confirmation of Barrett be the last thing that the national Republican Party ever accomplishes.

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