Tag: Supreme Court Decisions

Will Texas Disregard The Supreme Court?

The Daily Escape:

Snow Canyon, UT – October 2023 photo by Cathy Mortensen

(We will not publish a Saturday Soother this week, but there will be a Sunday cartoons column)

In doing research for this week’s Fascism in America column, Wrongo came across this from Rick Perlstein:

“And I think…what…we have in the United States: a very weak political establishment, but a civil society underneath it that’s looking for a kind of expression. And the expression that it’s taking is pathological….Because the party system is unable to answer the demands they have.”

A weak political establishment means that Congress can barely get out of its own way. Our political institutions have become ineffectual. The current Congress is setting records for inaction:

“The 118th Congress is on track to be one of the most unproductive in modern history, with just a couple dozen laws on the books at the close of 2023…”

This void is being filled by judicial or political opportunists. This is even true when the US Supreme Court hands down a decision that Republicans don’t like. From the Texas Tribune:

“The US Supreme Court…ordered Texas to allow federal border agents access to the state’s border with Mexico, where Texas officials have deployed miles of concertina wire…..For now, it effectively upholds longstanding court rulings that the Constitution gives the federal government sole responsibility for border security.”

Last October, Texas sued the federal government after Border Patrol agents cut some of the wire strung along the Rio Grande, arguing the Department of Homeland Security destroyed the state’s property and interfered in Texas’ border security efforts. But in a 5-4 decision the Supreme Court vacated a previous injunction from the 5th US Circuit Court of Appeals that prevented Border Patrol agents from cutting the wire.

So what does a sovereign state like Texas do in response? It’s governor Greg Abbott, issued a “Statement on Texas’ Constitutional Right to Self-Defense,” following calls by numerous Texas Republicans to resist the high court’s order. Abbott’s statement says that he had invoked his state’s “constitutional authority to defend and protect itself” which “is the supreme law of the land and supersedes any federal statutes to the contrary.”

OK, is it secession time anybody?

Houston Public Media quotes Charles “Rocky” Rhodes, teacher of constitutional law at South Texas College of Law in Houston:

“That’s a real blow to our separation of powers and the way that this country has governed itself….There have been situations in the past where governors and state officials have defied the Supreme Court, but that has led to constitutional crises.”

Teddy Rave, at the University of Texas at Austin School of Law, another constitutional law expert, described the calls to defy the high court’s order as unconstitutional and dangerous:

“The last time that I’m aware of that this kind of defiance actually happened was resistance to desegregation orders after Brown v. Board of Education….The Supreme Court didn’t take it kindly and issued a unanimous decision in Cooper v. Aaron explaining that states need to follow its constitutional rulings.”

But since it’s Texas, won’t the Supremes give the Republican governor a hall pass to run amuck over the Constitution? Maybe so, maybe no. The decision was 5-4, meaning that two of the six conservative Supreme Court justices said Abbott had to comply. Could one switch sides? Certainly.

What can Biden do if Abbott refuses to comply with SCOTUS’s decision?  He could federalize the Texas National Guard, which is what happened in Arkansas in 1957, when the then-governor Faubus tried to defy court orders allowing Black students to attend white schools in Little Rock.

Much like Abbott, Faubus’s fight was politically motivated. Faubus used the Arkansas Guard to keep blacks out of Central High School largely because he was frustrated by his political opponents’ success in using segregationist rhetoric to whip up support with white voters.

That eventually led President Eisenhower to federalize the Arkansas National Guard to effectively remove them from Faubus’s control. Eisenhower then sent the 101st Airborne Division to Arkansas to protect the black students and enforce the federal court order. The Arkansas National Guard later took over those protection duties, and the 101st Airborne returned to their base.

There seems to be a growing movement in Texas to fight the SCOTUS decision. A Texas nationalist urged Abbott to militarize the Texas State Guard if Biden federalizes the Texas National Guard. The Texas State Guard cannot be federalized. It has about 1,900 personnel, substantially smaller than the roughly 23,000 members of the Texas National Guard, but Abbott could attempt to beef up its headcount.

The Hill is reporting that Trump has urged states to deploy National Guard troops to Texas in support of Abbott. Various Right-wing twitter accounts are reporting that 25 Republican states have signed a statement supporting Texas against the Supreme Court. It’s not certain as Wrongo writes this is if these reports are true, but a presidential candidate and the governors of several states challenging the federal government seems an awful lot like the beginning of an insurrection.

Their joint statement isn’t in support of Texas, it’s in support of treason. This is what America has come to. It’s also symptomatic of the Supreme Court’s inability to check radical Trump-placed judges in lower courts who issue rulings with devastating consequences for democracy and human rights. States have no constitutional prerogative to nullify federal law. This principle was established during the nullification crisis of the 1830s and the Southern resistance to desegregation during the Civil Rights era. Nor, under the Constitution’s supremacy clause, can states interfere with the lawful exercise of federal authority. This rule is one of the oldest and most entrenched in all of our Constitutional law.

We often talk about Constitutional crises, and this could easily become one if Abbott and his enablers try to limit by force the US Border Patrol’s access in the upcoming days.

It’s also a test for Biden in an election year. Will he have to put down another insurrection by Republicans? If he does, what will be the political fallout?

Stay tuned.

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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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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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Saturday Soother – June 10, 2023

The Daily Escape:

Peony, Fields of Wrong, CT – June 2023 photo by Wrongo

(There will not be a Sunday Cartoons column this weekend. Wrongo and Ms. Right are attending a memorial service for family member Bob W.’s mom.)

The week ended with a ton of political news. First, as Mark Joseph Stern reported in Slate:

“The Supreme Court’s 5–4 decision in Allen v. Milligan on Thursday, which found that Alabama’s congressional map violates the Voting Rights Act’s ban on racial vote dilution, sends two clear messages. First, a bare majority of the court—Chief Justice John Roberts, Justice Brett Kavanaugh, and the three liberals—believes that the VRA still plays a meaningful role in maintaining a multiracial democracy (or is willing to defer to Congress’ judgment on the matter). Second, that same majority of the court does not look kindly upon red states’ race to shred decades of precedent in an effort to wipe out the voting power of Black Americans.”

The good news is that the decision means that Alabama must create a second Congressional district in which the voting power of Black voters is not diluted by gerrymandering. It is likely that Alabama will add a second Democratic representative to its Congressional delegation.

Even better, Democracy Docket says that the holding in Allen v. Milligan will likely result in a net gain of six Democratic seats (five in other states) in the House in 2024.

Second, Trump is being indicted in Florida. He, along with a staff member at Mar-a-Lago, are facing 37 felony charges related to the mishandling of classified documents. This good news is offset by learning that judge Aileen Cannon is again assigned to hear the DOJ’s case that Trump wrongly held classified documents, failed to return all of them, and then obstructed the efforts of the National Archives and the FBI to recover them. Here’s a link to the indictment.

Mega millions of words will be written about this before there’s a trial or a guilty plea. Hold off on a victory lap until Trump is convicted. About a quarter of the classified/national security documents seized from Mar-a-Lago were found in Trump’s office. It will be difficult for Trump to persuade a jury that he didn’t know about the documents and chose not to return them.

Also, the Trump lawyers who were the front men for this indictment have quit the case. The attorneys, Jim Trusty and John Rowley, did not explain in detail why they had resigned.

Does MAGA now stand for: Make Attorneys Go Away? Or possibly, Make Attorneys Get Attorneys? Although it appears the parting was amicable, it would be irresponsible not to speculate! And it’s difficult to believe that the lead attorney’s last name is Trusty.

But Trump wasn’t the only MAGA mishandling secrets this week. The HuffPo reported that Rep. Marjorie Taylor Greene (R-GA) made an eyebrow raising claim during a TV interview with Laura Ingraham on Fox:

“Greene said she read a document inside a SCIF ― a sensitive compartmented information facility ― related to bribery allegations Republicans have made against Biden…Then, she described that document while speaking to Laura Ingraham on Fox News”

Wrongo has experience with reading documents in SCIFs. NOBODY takes notes on what they’ve read. It’s a violation of national security regulations. When you enter a SCIF, you check all electronic devices before entering, and can’t take notes while inside. And usually, information revealed in the SCIF can’t be repeated outside of it. But Greene held up her notes to the camera.

Mark Zaid, an attorney who specializes in national security, tweeted:

“Hey @FBI, if this information was classified sounds to me like the Congresswoman is admitting to a crime. And if it was not, @SpeakerMcCarthy should remove her privileges for violating the trust she was afforded as a Member of Congress to review sensitive information.”

— Mark S. Zaid (@MarkSZaidEsq) June 9, 2023

But McCarthy won’t do anything. The GOP is building a wall around Trump, and minimizing the mishandling of documents by Greene will just be part of the play. To be a Republican in 2023 is to love Trump. They no longer love him for a particular reason: He’s what the Party has become.

There was plenty of orange air outside of the Mansion of Wrong this week. So, let’s pray for brighter skies while we settle into our Saturday Soother, where we try to forget the political news and the impending climate disaster. Let’s try to relax for a few moments. This week, George Winston died. He was a composer who became the signature style of New Age music in the 1980s. Wrongo was mildly interested in him at the time but came to admire and respect his work in the past few years.

Here’s Winston in 2020 playing Vince Guaraldi’s “Cast Your Fate to the Wind”:

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Sunday Cartoon Blogging – April 23, 2023

Another busy week filled with news we didn’t want to hear. Fox’s huge $787.5 million payout in the Dominion lawsuit seems appropriate, but Lever News reports that Fox can take a tax deduction from the settlement. Ironically the financial consequences of lying are just a cost of doing business for Murdoch and Co.

Fox Corporation reported $1.2 billion in net income in 2022, so the $787 million Dominion settlement is equivalent to about two-thirds of the company’s profits last year. The Lever quotes Daniel Shaviro a tax professor at NYU:

“If your business model is to tell lies so that you’ll get viewers and have lots of advertising revenues, then, odious though this business model may be, the tax system’s job is to tax you on the profits that you actually make from it…”

Fox reported paying an effective income tax rate of 27% in 2022 (the  combination of federal and New York taxes). If Fox can write off the full settlement payment to Dominion, it could amount to an estimated $213 million in tax savings. On to cartoons.

Fox didn’t even have to do this:

Losing the lawsuit didn’t cost Fox any viewers:

Justice Sam Alito was in an especially grumpy mood after the other Justices on the Supreme Court ruled that access to Mifepristone will remain unchanged while the case continues to wind through the courts. Alito and Thomas dissented even though the underlying suit is frivolous:

Note that Thomas is drinking a coke.

That the SpaceX rocket crashed and burned was totally on brand for Elon:

Kevin McCarthy explains his position:

Dalai Lama must retire:

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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

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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Finally, A Culture War Dems Can Win

The Daily Escape:

Irises on the beach, OR – June 2022 photo by Edwin Buske Photography

Our visit to Asheville, NC for a family wedding was a great success. Now we return to a world where love doesn’t conquer all.

Much has been written about whether the Democrats will be helped in the mid-term elections by the Supreme Court’s Dobbs decision overturning Roe. Recent polls show a shift in attitude away from Republicans in Congressional races. Simon Rosenberg of NDN, a Washington think tank, sees a big change in political polling since Dobbs. Rosenberg tweeted:

These data suggest voters have swung 3-5 points towards Democrats in recent weeks. Five of the nine polls show meaningful movement toward the Democrats since their last poll.

And that polling shift seems to have carried over to the Senate. New polling from Future Majority (FM) finds a far better Senate landscape for Democrats. Here are a few data points from FM:

AZ – Sen. Mark Kelly leads Masters, 48-39, Lamon 47-41. He trailed a generic Republican 43-45 in March.
GA – Sen. Ralph Warnock leads Walker 48-44.  He trailed 48-49 in March.
NH – Sen. Maggie Hassan leads Bolduc 49-40.  They didn’t poll NH in March.
NV – Sen. Cortez Masto leads Laxalt 46-43.  She trailed Laxalt 43-45 in March.

Most important, FM found that enthusiasm to vote among Democrats has overtaken Republican enthusiasm. After trailing Republican motivation throughout most of 2022, now 92% of Democrats say they are extremely motivated to vote in November, while 89% of Republican voters say they are extremely motivated to vote. This is a seven-point boost in Democrats’ 85% enthusiasm in March.

Also, they found that reproductive freedom is a top priority for Democrat voters in November: 77% of Democrats and 45% of Independents identify the SCOTUS decision to overturn Roe as a top priority in their vote. It’s the top issue for Democrats and the 2nd most important issue to Independents.

If the FM polls are accurate, Democrats leading in the generic ballot is a game-changer for the 2022 mid-terms. The election is now competitive. It’s no longer a Republican wave election. But the election isn’t being held today, it’s four months away. And these polls, along with all the others, are fallible. But the times make it both right and important for Dems and Independents to be energized.

We need to hammer home that America had a coup against our government led by the last Republican president. And this year, we’ve seen the Republican-dominated Supreme Court rule against the majority view of the country on guns, abortion, religion and climate change.

It isn’t a stretch to say that the Court’s Conservative majority may side with Republicans when their partisans try to decide the next few elections for us. After years of change and accelerating division, the last few months have made it perfectly clear just what Republicans do when they get political power.

One big question in November is if the under-30 voters who helped power the Democrats’ wins in 2020 will show up in 2022. David Hogg, one of the Parkland shooting survivors who has become a political activist, tweeted at his fellow Gen Z cohort:

“I understand how tone deaf it sounds to say we need to keep voting but it’s important to remember a couple things-

1.) It’s one day every 2 years 2.) It’s a tool we have in our tool box to create change- we can’t afford to not use every tool we have 3.) If it didn’t change anything they wouldn’t be trying so hard to stop us

6.) When hardcore conservatives didn’t like the Republican Party in the 1960-70s their solution wasn’t to stop voting it was the opposite. It was voting WAY more in primaries and growing the power of their vote. They turned out every election for decades and that brought us here.

7.) The solution is NOT to stop voting which would literally be the worst possible thing we could do. It will ensure the only people who stay in power are Dems who refuse to abolish the filibuster and republicans. We need to grow our lead in the senate and keep the house.

8.) Power is grown over decades of voting for the best candidates in primaries and then blue no matter who. It should be obvious but the solution to growing our power isn’t to diminish it by not voting. It’s to vote for the best candidate and hold them accountable.’

Hogg gets it.

The abortion war should unite Democrats, while dividing Independents and Republicans, giving Dems an opening, if they know how to use it.

Democrats finally have a culture war they can win.

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More Rights May Be Flushed By The Supremes

The Daily Escape:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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