ROBERTS 2 CHIEF JUSTICE

719 trump 2 yrs in

dirty tricks on 2nd? gerry fail

see main for earlier

ANTI-DEMOCRACY VOTER SUPPRESS GERRY IMMUNITY

SEE WHO BROKE AMERICA SYMPTOM SYSTEM DEGRADATION GINGICH POLARIZ

no merri

SEE CONSERV RT JUSTICE

SEE SCOTUS 6-3

see campaign finance CU disclose

see trump immunity SEE dq DISQUALIFICATION 14TH AMEND

2 22 scotus 2 lost? did not exist? zombie by tag?

SEE ETHICS FAIL

see main

see scotus 3 6 3 on immunity etc

THIS F GUY 6 26

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THIS F GUY 6 26

John Roberts: Everything You Didn't Know About His Sh*tty Past - YouTube

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root cause SYS DEGRAD SCOTUS CU an 1 26

gingrich lang memo--> POLARYSIS // CHECKS BALANCE SURRENDER

All of the dysfunction in Congress is coming from decisions that the U.S. Supreme Court ushered in, and it is completely changing the face of American government, a legal scholar explained.

Writing for The Atlantic on Tuesday, Stanford Law School fellow Duncan Hosie said that there are two key rulings that have resulted in the downfall of Congress.

"These dynamics share a root cause: the partisan polarization that has reshaped American politics over the past four decades," wrote Hosie. "But the connection is deeper and more complex than that. Whereas polarization weakened Congress, it emboldened the Court to dismantle laws and, in the process, undermine Congress’s ability to make laws at all, reinforcing Congress’s sclerosis."

The first began during the "Newt Gingrich revolution," he argued, with "rising partisanship and institutional upheaval."

Sorting members into "distant ideological camps and normalizing scorched-earth tactics" led to absolutist politics and made bipartisan politics for the greater good rare. Instead, ideological battles were launched with Supreme Court nominees with a litmus tests for partisan purity over reasonable interpretations of the law. Even justices below the High Court have become partisan as "Republican appointees began consolidating its authority at Congress’s expense."

Under Chief Justice John Roberts, Hosie said, the Court has canceled "congressional constitutionalism." Laws passed such as the Voting Rights Act, the Affordable Care Act, the Family and Medical Leave Act and campaign finance regulations have all be undermined by the Roberts cCurt.

The latter took a hit with a collection of decisions, such as Citizens United (2010), that "dismantled Congress’s two most significant efforts to regulate private money in public elections, eroding the safeguards that protect elections as conduits of public opinion," Hosie wrote.

There's a chance one case this year could make such issues even worse. The Roberts Court "dismantling" key laws "has left Congress more detached from its electorate, diminishing its claim and role as a representative authority."

Deregulating campaign finance laws has turned politics into such a huge undertaking that lawmakers and candidate spend more time trying to raise money than they do making direct contact with voters, conducting legislative oversight or fostering bipartisanship, the legal scholar said.

"Empiricalstudies confirm that reliance on large donors depresses participation in time-intensive legislative activities — things such as bill sponsorship, floor debate and committee work," Hosie wrote. "It simultaneously redirects lawmakers’ attention toward courting high-net-worth donors and away from talking to people in their districts."

The second issue is gerrymandering. Partisan legislatures draw maps that make congressional districts more one-sided. It then ensures that members of Congress appeal to the most extreme factions of their electorate.

Hosie called the court's ruling in "Rucho v. Common Cause (2019) [the most] entrenched electoral distortion in American politics. The Court has since doubled down. Last month, Justice Samuel Alito defended Texas’s gerrymandered maps on the grounds that they reflected 'partisan advantage pure and simple' — an unabashed apologia for a practice destructive to democracy."

Drawing congressional maps to craft "safe seats" means the ideologues win. That can "marginalize moderate voices," he explained. It reduces any incentive for compromise and accountability.

These rulings have ultimately reduced the power of Congress and expanded that of the judiciary branch that was meant to be equal under the Constitution. "Substantively, it has redefined what the Constitution forbids, preemptively removing entire policy domains from democratic deliberation before voters and lawmakers can even weigh in," Hosie closed.

*Read more here.

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AN 11 26 KATE SHAW

The path toward undoing the conservative Supreme Court's destructive rulings after the term of President Donald Trump will be arduous, and as one legal scholar argued for the New York Times, it will require three things to be in place.

The Supreme Court has released a new batch of highly contentious rulings favorable to the Trump administration to close out its 2026 term, continuing the conservative-majority court's longstanding trend. This week alone, the court rubber-stamped Trump's authority to fire the heads of independent federal agencies at will, a major democratic setback, and let states keep in place laws that forbid transgender women and girls from competing in women's sports.

Writing for the Times on Tuesday, Kate Shaw, a law professor at the University of Pennsylvania, argued that the Supreme Court has, with the former ruling, "all but laid waste" to the separation of powers in the federal government.

"With its decision Monday in Trump v. Slaughter, the Supreme Court’s conservative supermajority has fully embraced the unitary executive theory — the view, popular among Donald Trump’s loyalists, that presidents have unrestrained authority over the executive branch," Shaw wrote. "With this decision, the court has fundamentally reshaped the federal government and handed us an executive branch on steroids. Combine the Supreme Court’s radicalism in this case with the revanchist, overreaching second presidency of Mr. Trump, and the separation of powers as we have known it has been all but laid to waste."

In order to reverse the damage done by the John Roberts court to the constitutional order, Shaw further argued that three things will be needed: "Democratic control of both the House and Senate, and Supreme Court reform." The first two points, she explained, would be needed, "Given how congressional Republicans have coddled Mr. Trump" throughout his second term, making it unlikely they would "ready a list of reforms intended to rein in an out-of-control executive branch, and to reassert legislative primacy" once he leaves office.

"What could that court reform look like? It could mean provisions stripping the Supreme Court of the power to hear challenges to certain newly enacted laws, or legislating supermajority voting requirements so that only a showing of unanimity or close to it can justify invalidating certain laws," Shaw continued. "It could also include statutorily creating additional Supreme Court seats, then moving quickly to fill them with jurists who will not pursue the current court’s apparent goal of boundless power for both the president and itself."

She concluded: "Pairing an agenda for responding to the pathologies displayed in this presidency with an agenda for Supreme Court reform will ensure that the limits of our political imagination and political will can be far broader than what the current six-justice majority will allow."

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VID] AN 26

President Donald Trump's authoritarian rampage over the U.S. in his second term has been enabled by numerous cowards in high places, but as author Jacob Weisberg told The Daily Beast, there are at least eight of the "very worst" cowards who have gone above and beyond in their capitulations.

Weisberg is a reporter and author who appeared as a guest on the latest episode of The Daily Beast Podcast on Sunday, promoting his new book, Profiles in Cowardice. As host Joanna Coles explained, the book explores the "Great Capitulation" across American society in 2025, as numerous powerful individuals and entities caved to Trump's new demands, falling in line and lining his pockets all at once. Weisberg explained that he sought to drill down past "the flacks and flunkies" around the president, finding eight of the worst cowards, including Sen. Mitch McConnell, Chief Justice John Roberts, former Fox host Megyn Kelly, lawyer Brad Karp, Blackstone CEO Stephen Schwarzman, former President George W. Bush, and Dartmouth president Sian Beilock.

Chief among these names, he explained, has been Amazon CEO and Washington Post owner Jeff Bezos.

"I think they all deserve shame, and they're all different stories and interesting stories," Weisberg explained. "But Bezos, in a way, is the paradigmatic example because he was so good in [Trump's first term] as owner of the Washington Post. Trump threatened him, bullied him, pressured him to have the Washington Post be less critical and less aggressive. And Bezos didn't yield an inch. Marty Barron, who was editor of The Washington Post in those years, really paid tribute to him and said, we couldn't have had a better owner... [In Trump's second term] it's a different person. He's on bended knee at Mar-a-Lago, paying $40 million for the Melania Trump documentary from Amazon Prime. You know, Amazon Prime is, like, known for being stingy. This is an absolutely ridiculous price. It's effectively a kind of bribe, a personal bribe, to the president and his wife."

Weisberg further suggested that Bezos's desire to gain government contracts for his space company, Blue Origin, and his ultimate goal of helping colonize space have been one of the main factors driving his capitulation to Trump.

In digging in against Roberts, meanwhile, Weisberg highlighted the 2020 ruling that gave Trump and other presidents sweeping immunities for "official acts" while in office, making it "essentially impossible" to prosecute them once they leave office. He also argued that, in many ways, Roberts probably dislikes Trump immensely, but has been willing to give him favorable rulings because of a deep and genuine belief in unrestricted executive power.

On McConnell, Weisberg argued that the former Senate Majority Leader was "afraid of losing his position inside the party" when he refused to back Trump's second impeachment, for which a conviction in the Senate would have barred him from ever hold office again.

"But if he had held firm to what he had said just after January 6th, he could have had Trump convicted," Weisberg said. "Trump was already out of office or would soon be out of office, and it would have been an easy matter to pass this subsequent vote that would have banned Trump from ever holding public office again, and we would have no second term. And that is on Mitch McConnell."

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AN BOLL BLIM THE PROGRESSIVE

There is no bigger con man in the United States than Supreme Court Chief Justice John Roberts. Not even President Donald J. Trump.

The con began in September 2005, during Roberts’s confirmation hearing before the Senate Judiciary Committee. Articulate, handsome, and energetic at fifty years old, Roberts seemed to have been culled “straight from central casting,” as Republican Senator Jeff Sessions of Alabama actually remarked on the first day of the hearings. Roberts was also convincing—he famously promised that if confirmed, he would serve in the fashion of a baseball umpire, calling only “balls and strikes, and not to pitch or bat.” Seventy-eight Senators, including twenty-two Democrats, fell for the ploy and voted to give him the lifetime assignment.

The biggest yarn Roberts told during his hearing concerned his views on the Voting Rights Act of 1965 (VRA), a cornerstone of American democracy, which the Supreme Court gutted this past April in a redistricting case from the state of Louisiana (Louisiana v. Callais).

As is his prerogative as Chief Justice, Roberts assigned the task of drafting the Callais majority opinion to fellow conservative Justice Samuel Alito, who responded with a 6 to 3 ruling that held that, henceforth, Section 2 of the landmark legislation would require VRA plaintiffs to meet the nearly impossible burden of proving that redistricting maps challenged as “racial gerrymanders” were created with discriminatory intent rather than for permissible political purposes. The opinion allowed Louisiana to eliminate one majority Black Congressional district. It also effectively negated legislation passed in 1982 that had amended Section 2 to permit the Justice Department and private citizens to challenge election laws that have the effect of diluting minority voting power without proving intent.

Flash back to 2005 and it is apparent that, at best, Roberts misled the judiciary committee. In response to a question from Massachusetts Democratic Senator Ted Kennedy about the VRA’s constitutionality, Roberts replied, “[T]he existing Voting Rights Act—the constitutionality has been upheld. And I don’t have any issue with that.”

In fact, Roberts had plenty of issues with the VRA. As a young lawyer serving as a special assistant to Attorney General William French Smith in the Reagan Administration, Roberts authored upward of twenty-five memos opposing the 1982 legislation. In them, Roberts urged the administration to defeat any proposed changes to the VRA and to keep the “intent test” established by a 1980 Supreme Court decision (City of Mobile v. Bolden) that required VRA plaintiffs to prove officials explicitly intended to discriminate against minority voters. Adopting the effects test over the intent test, Roberts argued, would create “a quota system [akin to affirmative action] for electoral politics by creating a right to proportional racial representation on elected governmental bodies.”

In another exchange at his confirmation hearing, this time with Wisconsin Democratic Senator Russ Feingold, Roberts sought to explain away his memos as just part of the job he had been assigned at the time rather than a reflection of his personal views, saying, “I was a twenty-six-year-old staff lawyer. It was my first job as a lawyer after my clerkships [with Second Circuit Judge Fred Friendly and Supreme Court Chief Justice William Rehnquist]. I was not shaping administration policy. The administration policy was shaped by the Attorney General . . . . It was the policy of President Reagan. It was to extend the Voting Rights Act without change.”

Despite young Roberts’s warnings, the 1982 amendments were passed by Congress with overwhelming bipartisan support by a vote of 389 to 24 in the House and 85 to 8 in the Senate. President Reagan quickly reversed course and signed the amendments into law on June 29, 1982. In 2006, Congress extended the VRA for another twenty-five years with even greater bipartisan support, by a vote of 390 to 33 in the House and 98 to 0 in the Senate.

Once installed as the nation’s seventeenth Chief Justice, it didn’t take Roberts long to show his true colors, declaring in a 2007 majority opinion on busing in public schools (Parents Involved in Community Schools v. Seattle School District Number One) that, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Two years later, in an otherwise obscure case (Northwest Austin Municipal Utility District Number One v. Holder) involving the elected board of a municipal water district in Texas, he turned his attention to Sections 4 and 5 of the VRA, which required state and local jurisdictions, mostly in the South, with histories of egregious voter discrimination to obtain advance federal approval—known as “preclearance”—before making changes to their election procedures. Although his opinion left the sections intact, Roberts warned that unless Congress updated the formula to determine which jurisdictions should be subject to the preclearance process, the Supreme Court might stop the process altogether.

In 2013, he made good on that threat. Writing for a 5 to 4 majority in Shelby County v. Holder, he invalidated the preclearance formula and effectively put an end to the process, reasoning that racism in American elections was a thing of the past and there was no longer any justification for singling out Southern states for remedial measures. Shelby led swiftly to an upsurge in restrictive voter ID laws, voting-roll purges, and limitations on mail-in balloting in Republican-led states across the country, especially in the South.

Although Roberts also declared in Shelby that Section 2 of the VRA “is permanent, [and] applies nationwide,” he returned to the attack with his 2019 majority opinion in Rucho v. Common Cause, holding that “political gerrymandering” claims cannot be brought in federal courts because they present nonjusticiable “political questions.” Political gerrymandering has a long history in the United States, Roberts noted, dating back to the salamander-shaped voting districts created by Massachusetts Governor Elbridge Gerry in 1812 to give an advantage to his Democratic-Republican Party. “The Constitution,” Roberts argued in Rucho, “supplies no objective measure for assessing whether a districting map treats a political party fairly” and thus provides no basis for proportional political representation.

Lacking objective standards to work with, he concluded, the federal courts had no business entering the redistricting wars.

Rucho, in turn, set the stage for Callais in 2026, which put an end to claims of racial gerrymandering, the last bastion of relief from discrimination available under the VRA. Callais gave red states permission to redesign their electoral maps to eliminate “majority-minority districts” (where a minority group comprises a majority of the population) that had been created to boost the electoral power of Black and Latine voters, who tend to lean Democratic. Election law predict that as a result of Callais, as many as nineteen seats in Tennessee, Alabama, Mississippi, South Carolina, Florida, and Louisiana could be eliminated, starting with the November midterms, potentially returning the bulk of the former states of the Confederacy to virtual one-party rule.

As The Nation’s justice correspondent Elie Mystal put it in a mournful post-Callais column, “The ruling effectively ends the VRA, and with it the all too brief era of multiracial democracy in America.” And as Ari Berman added in a piece for *Mother Jones*, Callais may have been written by Alito, but it “represents the life’s work of Chief Justice John Roberts . . . [who] has been trying to kill the Voting Rights Act for more than forty years.”

The severe negative reaction to Callais forced Roberts to do damage control. Addressing a judicial conference in Hershey, Pennsylvania, in early May, he said: “I think at a very basic level, people think we’re making policy decisions, [that] we’re saying we think this is what things should be as opposed to this is what the law provides . . . . I think they view us as truly political actors, which I don’t think is an accurate understanding of what we do. I would say that’s the main difficulty . . . . We’re not simply part of the political process.”

The problem for Roberts is that his shtick just isn’t working anymore. Any lingering pretense of impartiality ended with his stunning majority opinion in 2024’s Trump v. United States, which offered the President near-complete immunity from criminal prosecution for his official acts. In addition to shielding Trump from legal accountability, the immunity ruling embraced the Reagan-era “unitary executive theory,” which posits that all executive power is concentrated in the person of the President, as a settled principle of Constitutional law.

The unitary theory was on full display again in late-June opinions this term on immigration and independent agencies. In Trump v. Slaughter, another 6 to 3 majority opinion written by Roberts involving the firing of a Federal Trade Commissioner, the Court overturned a federal law that bars the President from firing members of the independent agencies created by Congress without just cause. In the process, Roberts overruled a precedent decision that had stood since 1935 (Humphrey’s Executor v. United States), which had upheld the contested statute.

In rulings on the immigration cases, both written by Alito and resolved 6 to 3 along party lines, the Court upheld the administration’s termination of temporary protected status (TPS) for an estimated 350,000 Haitian and 6,000 Syrian nationals who were allowed to come to the United States to avoid persecution (Mullin v. Doe), and authorized the administration to revive Trump’s first-term policy denying asylum seekers the right to enter the country before reaching the U.S.-Mexico border (Mullin v. Al Otro Lado).

The immigration decisions sparked uncommonly vitriolic dissents from the Court’s three liberal Justices, exposing deepening fissures on the bench. In the asylum case, Justice Sonia Sotomayor blasted the majority, writing, “The consequences of today’s decision are predictable. More people will die. More people will attempt to cross the border illegally, and some will make it while others will not.” In the TPS case, Justice Elena Kagan all but accused the majority of enabling Trump’s racism, citing the President’s public statements accusing Haitian refugees of “eating” cats and dogs, “poisoning the blood,” and saying they come from a “shithole country” and “probably have AIDS.”

The Court’s racial bias was also evident in its “shadow docket,” the term given to emergency appeals that come before the Court outside of its standard “merits” docket and are typically resolved rapidly without full briefing and on an interim basis while litigation proceeds in lower courts. In one particularly egregious ruling (Noem v. Perdomo), the Court permitted immigration agents to detain suspected undocumented immigrants on the basis of race, ethnicity, language, location, and occupation, green-lighting unbridled racial profiling.

The shadow docket also included an emergency order permitting Alabama to reinstate a Congressional map that eliminates a Black-majority district that the Court had invalidated under the VRA just three years ago.

Even in the handful of major decisions the Trump Administration lost this term, the cases were narrowly framed. In Learning Resources, Inc. v. Trump, with Roberts writing for a 6 to 3 majority, the Court invalidated Trump’s worldwide “liberation day” tariffs under the International Emergency Economic Powers Act, but left the door open for more targeted duties under different statutes. Similarly, in Trump v. Cook, with Roberts writing for a 5 to 4 majority, the Court temporarily barred Trump from firing a member of the Federal Reserve Board of Governors while her lower-court challenges continue.

Continuing the trend, with Justice Amy Coney Barrett writing for a 5 to 4 majority in Watson v. Republican National Committee, the Court held that existing federal election laws do not prevent Mississippi, and by extension other states, from counting absentee ballots postmarked by election day but received up to five days thereafter. Barrett, however, very carefully noted that her opinion did “not consider the scope of Congress’s authority to regulate federal elections” through legislation, possibly a covert nod to the Safeguard American Voter Eligibility (SAVE) Act that Trump has insisted Congress pass, which would outlaw nearly all mail-in voting.

The same is true for the Court’s much-anticipated decision in Trump v. Barbara, on Trump’s Executive Order declaring an end to birthright citizenship under the Fourteenth Amendment for the children of undocumented people. In years past, the Court would have unanimously rejected Trump’s gambit. Instead, in a 5 to 4 opinion written by Roberts and joined by Barrett, the order was barely rebuffed for violating the text and history of the Amendment.

Roberts may have gained a small measure of redemption with his Barbara opinion, but the Court’s accelerating lurch to the right under his stewardship has done permanent damage to the institution, and sparked renewed calls for radical reforms, including the imposition of term limits for the Justices and, most far-reaching of all, for an expansion of the bench to as many as thirteen members.

To accomplish any significant reforms, however, will require Democrats to stiffen their spines and to take back both houses of Congress later this year and the presidency in 2028. In the meantime, we can take heart that the long con Roberts started in 2005 has been exposed for all to see. And we can heed the call of New York Times columnist Jamelle Bouie to remind ourselves that Roberts and his GOP confederates do not own the future of the Constitution. We do.

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Margaret Talbot @ The New Yorker: The Delusions of John Roberts

The Chief Justice insists that his Supreme Court isn’t biased even as it keeps making dramatic leaps rightward.

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AN 7 26

If there's one problem with the U.S. Supreme Court, it's that Chief Justice John Roberts has helped accelerate a bigger constitutional project.

Adam Serwer, justice and politics reporter for *The Atlantic*, penned a column on Tuesday that described Roberts as the cartoon monkeys who cover their eyes, ears, and mouths, boasting, "see no evil, hear no evil, and speak no evil." The Roberts court has spent the past several years stripping away the protections promised by the Reconstruction amendments while giving President Donald Trump and the right-wing legal movement room to keep pushing for more.

It isn't merely that the high court keeps ruling for the right, Serwer explained. It’s that the Court is increasingly willing to look at authoritarian-style power grabs and treat them as anything other than what they are.

Case after case has allowed the conservative majority to expand presidential power while narrowing the reach of anti-discrimination laws.

Serwer said that it began in the first Trump term and has gone into turbo-drive since Trump began his second term, particularly when it comes to immigrants and ethnic minorities.

"The Court’s approach echoes one of the most notorious decisions in American history: the 1944 ruling in Korematsu v. United States, which upheld the forced relocation of tens of thousands of Japanese Americans in the middle of World War II," he wrote. "With apologies to Fred Korematsu, a brave and honorable man who resisted internment, we could call the Roberts Court’s 'See no evil' approach to overt bigotry the Neo-Korematsu Doctrine."

"Writing on behalf of the majority in Korematsu, Justice Hugo Black—a former Klansman—rebuked his colleagues for suggesting that racism or bigotry was behind the internment of Japanese Americans," added Serwer, quoting the ruling.

“To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue,” Black wrote. “Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”

It wasn't that long ago that Roberts repudiated Korematsu, saying that it was as “gravely wrong the day it was decided” and “overruled in the court of history." He said that it “has no place in law under the Constitution.” Oddly, those words appear in the case in which Roberts upheld Trump's executive order banning people from traveling to the U.S. from predominantly Muslim countries.

It shows Roberts' willingness to bend doctrine when it suits the project of executive branch authority. So, the presidency, and Trump along with it, keeps scoring more room to do what it wants, while pretending it is just being faithful to history and constitutional structure.

At the same time, the judges are hedging by making their own exceptions while waving away the hardest legal questions using language that amounts to “because we said so.”

Anything culture-war-related has been one-sided, explained Serwer. The justices upheld bans on transgender girls and women in school sports, which has only deepened the pattern of using trans people as a political punching bag. It has become the authority hardening discrimination into U.S. law, while pretending to be measured and moderate.

Ultimately, Serwer closed by saying that the court isn't just failing to stop the authoritarian drift of the American government. It is quietly smoothing out the path for it.

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an 5 26

In his New York Times opinion column, Jamelle Bouie argues that Chief Justice John Roberts and the conservative Supreme Court majority operate under a fundamental misunderstanding of American reality, pursuing a "colorblind Constitution" that ignores the nation's persistent racial inequalities.

Bouie traces the history of the Voting Rights Act since its 1965 passage, when President Lyndon Johnson called it "a triumph for freedom as huge as any victory that has ever been won on any battlefield." The landmark legislation transformed Black political participation, particularly after a 1982 amendment and a 1986 Supreme Court decision enabled the creation of majority-minority districts. By 1995, there were 43 Black voting members of Congress—a dramatic increase from just six in 1965.

However, Bouie contends that the Roberts court has systematically dismantled these protections through a series of decisions beginning with Shelby County v. Holder in 2013, culminating in last week's Louisiana v. Callais decision.

In Louisiana v. Callais, the court permitted Republican-led Southern states to dismantle majority-minority legislative districts by allowing partisan gerrymandering as a legitimate state objective. Bouie argues this represents a perversion of the 14th and 15th Amendments, which were ratified specifically to end Black subordination and ensure representation. Instead, the court has weaponized these same amendments against minority interests under the guise of colorblindness.

The columnist criticizes what he calls the "racial entitlement" framing adopted by conservative justices, arguing that colorblind constitutional interpretation fundamentally cannot address group inequality in a nation defined by centuries of racial subordination. A constitution that refuses to "see color" becomes, paradoxically, a tool for perpetuating the very discrimination it was meant to remedy.

Bouie invokes historical warnings from Frederick Douglass and Justice Thurgood Marshall, both of whom cautioned against courts that manipulate constitutional doctrine to enable racial discrimination. He suggests the current court is guilty of precisely this offense—using neutral language to achieve discriminatory outcomes.

The immediate consequences are already materializing. Louisiana, Alabama, Tennessee and Mississippi are planning special legislative sessions to erase majority-minority districts in their states, potentially triggering the largest reduction in Black political representation since Reconstruction.

Bouie concludes with a call for action beyond the courts themselves. He argues that Americans must reclaim constitutional interpretation as a democratic enterprise rather than ceding it entirely to judicial authority. Court reform through congressional action, combined with renewed public engagement in constitutional meaning-making, represents the only viable path forward.

The column's central thesis—that Roberts "believes in an America that doesn't exist"—reflects Bouie's argument that the chief justice operates from a fictional premise of racial neutrality that ignores observable American reality, where racial polarization remains endemic and historical discrimination continues shaping political landscapes.

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AN 5 26

Chief Justice John Roberts made a rare public appearance last year to defend his Supreme Court colleagues from criticism that they were overturning decades-old precedent, according to CNN reporter John Fritze.

Roberts has sought to rebut accusations that the court is partisan, pointing to its record since the overturning of Roe v. Wade in 2022. However, Fritze examined Roberts' claims against the court's actions.

The court has overruled Humphrey's Executor, which protected federal employees from being fired by the president without cause; aspects of the Voting Rights Act of 1965, which addressed discriminatory gerrymandering; and Chevron v. Natural Resources Defense Council, which empowered federal agencies to interpret vague laws. The court also appears poised to overturn Employment Division v. Smith, which held that the First Amendment does not protect people engaged in illegal acts as part of religious activity.

Roberts stated that the court has not explicitly overturned more than two precedents per year. Fritze noted this is accurate when using a narrow definition of "overturning precedents."

"Those numbers don't account for instances in which the court has significantly departed from a precedent without explicitly overruling it," Fritze wrote. "In recent years, the conservative majority has also moved away from precedents involving religious freedom."

New York Times columnist Jamelle Bouie offered a broader critique of the court's direction. Bouie stated that the court is "acting as a super legislature: an unelected group of people who have taken it upon themselves to revise Congress's work."

Bouie pointed to the court's decisions on Reconstruction amendments, presidential power, corporate speech, and campaign finance as evidence of a consistent direction in prioritizing particular outcomes over textual analysis.

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AN 4 26

Oral arguments unfolded at the U.S. Supreme Court on Mondayin *Chatrie v. United States*, which will decide whether police demands for all Google data from anyone near a crime scene violate the Fourth Amendment's protection against unreasonable search.

The case surrounds a 2019 robbery of a federal credit union in Virginia. Law enforcement investigating the robbery served a warrant on Google, asking for information on any devices near the bank at the time. The district court found there was no probable cause but allowed the warrant anyway, citing the "good-faith exception."

The U.S. Court of Appeals for the Fourth Circuit affirmed. So, the Supreme Court will decide whether Americans can control their privacy and data held by third-party tech companies, and what the government must do if it intends to subpoena the digital records.

During the arguments, the justices sparked online debate about whether they fully comprehend the uses of technology they were debating.

In one discussion, Chief Justice John Roberts didn't understand why they were even meeting to discuss the issue, since users can ask their phones to turn off location services.

Roberts asked, "What's the issue?" Saying that people could simply turn it off.

Arguing for Chatrie, lawyer Adam Unikowsky explained that Americans shouldn't have to turn off "location services" just to avoid being surveilled by the government.

Location services are necessary for features like GPS directions in Google Maps or "find my phone" technology. Parents use the location services to keep an eye on where their kids are. Friends can share it with other friends when meeting up or use it for safety if they're going out with someone they met online.

Roberts argued that the government only gets access if the user decides to make it public.

Constitutional Law Professor Anthony Michael Kreis commented, "If you don’t want the government to track you, just turn the location off. Well, Chief Justice Roberts, maybe I want my friends to know where to find me if I’m dying in a ditch or lost at a festival without the government knowing. Such an unrealistic question."

One lawyer joked, "But under an originalist interpretation, nothing restricted the government from triangulating your location in real time by intercepting and tracing homing pigeons, which people were, of course, constantly sending and releasing at all times."

The justices generally make "originalist" arguments, but such arguments come from a time when technology available today didn't exist.

Another remarked, "If you don't want the electorate to track you, establish a docket to announce decisions without explanation."

This is a slight on the justices, specifically Roberts, who have tried to hide debate from the public using the "shadow docket," where there are no public oral arguments in the court.

Tech Crunch security editor Zack Whittaker confessed it took him just five minutes of listening to the oral arguments before he was "annoyed by Roberts' flawed logic."

A follower joked that Roberts was basically saying, "Just opt out like our Founders intended..."

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CPP SHADOW DOCKET

The Scheme Time to Wake Up | Senator Whitehouse's Speeches Converge

Senator Sheldon Whitehouse

Apr 23, 2026

April 22 | Senator Sheldon Whitehouse (D-RI) delivers his 306th speech in his Time to Wake Up series, converging with his 36th Scheme speech. The billionaire-backed scheme to capture and control the Supreme Court was developed largely to protect the fossil fuel industry’s free-to-pollute business model. Here’s the proof.

The Scheme 🤝 Time to Wake Up | Senator Whitehouse's Speeches Converge - YouTube

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AN 4 26

The U.S. Supreme Court, “nine angry men and women in black robes,” according to Philadelphia Inquirer columnist Will Bunch, has gone “off the rails,” and is now “at war with itself.”

“Almost every day, there are new signs — from shocking news leaks to surprisingly indecorous public jabs, and legal opinions that read like cries for help — that the U.S. Supreme Court is at war … with itself,” Bunch argues. “Looming large over this soft civil war inside one of America’s three branches of government is our most fundamental liberty, the right to vote.”

Pointing to President Donald Trump’s war in Iran, amid its “shaky” ceasefire and “the daily unraveling” of the White House, “the biggest bombshell wasn’t dropped in the Persian Gulf but in the pages of the New York Times.”

Bunch is referring to the widely-cited scoop from the Times‘ Jodi Kantor and Adam Liptak, that reveals the extreme steps Chief Justice John Roberts took to block President Barack Obama’s Clean Power Plan — and expand the powers of the Court via the “shadow docket.”

“For more than a decade now, these emergency rulings have largely constrained Democratic presidents and boosted the power of Donald Trump on major issues,” Bunch writes.

He notes that the Times published a batch of five justices’ secret memos, including those from Roberts, that “exposed the hypocrisy” of the Chief Justice, “who has argued during his two decades overseeing the court that its justices are not political actors but impartial umpires ‘calling balls and strikes,’ based on sound interpretation of the law.”

Bunch states these memos “reveal Roberts as less an umpire and more the manager of a team desperate to win the World Series for corporate America.”

The leaking of the memos, which, to many, cast Roberts in a negative light, “is just the latest in a series of news leaks and public statements coming from the Supreme Court that lack any precedent, legal or otherwise.”

Bunch says the court had already been facing a “crisis of credibility,” given the “revelations of alleged corruption” swirling about Justice Clarence Thomas, and the “billion-dollar efforts by wealthy conservatives to shape and then lobby the court.”

The Times’ report was far from the first leak.

In 2022 came the “Mother of All Leaks” — the draft opinion that would ultimately overturn 1970s’ landmark ruling, Roe v. Wade.

The leaker was never discovered, but “there’s been much speculation that it came from the conservative wing hoping the news coverage would prevent last-minute defections.”

Meanwhile, since the Court’s 2024 decision granting President Donald Trump and all presidents sweeping immunity from criminal prosecution for “official acts,” Bunch writes, “there has been even less decorum and more overt verbal warfare.”

Sometimes, justices publish their snipings inside their opinions, “as when Justice Sonia Sotomayor wrote in response to that ruling on presidential power that POTUS is now ‘a king above the law,’ signing off ‘with fear for our democracy.'”

Bunch says an even more “shocking” event occurred when Sotomayor “lashed out” at Justice Brett Kavanaugh, when she commented that one of his opinions had come from “a man whose parents were professionals. And probably doesn’t really know any person who works by the hour.”

She quickly apologized.

Like the 2022 leak, no one has publicly stated who leaked the secret memos to The New York Times.

But, Bunch surmises, someone “very high in the judicial pyramid is trying to send a ‘bat signal’ to the American public — that things at the nation’s highest court have gone off the rails.”

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AN 4 26

Last week, internal memos from an obscure 2016 Supreme Court decision were leaked by The New York Times, showing shocking revelations about Chief Justice John Roberts, who frequently plays a public role as a non-partisan justice, but behind the scenes, he's being exposed for his right-leaning slant.

In an analysis about it on Tuesday, Slate's Dahlia Lithwick and Mark Joseph Stern explained that this ruling is what began the "shadow docket."

AlterNet highlighted a piece by Georgetown University Law School Professor Steve Vladeck last week, calling out the legal flubs. Vladeck, who wrote the book on the "shadow docket," discussed the 2016 ruling, which had zero oversight and made significant changes to the U.S. legal system, all over a power grab in opposition to President Barack Obama's administration.

For years, conservatives have complained about the "shadow docket," calling it judicial secrecy and implying it was "bad motives to a benign emergency procedure that operates according to neutral legal principles," the Slate report said. The newly released memos "reveal exactly why the Republican-appointed justices don’t want to shine public or academic light on this practice: If this leak is any indication, the public would be aghast to see the brazenly political, spin-soaked flimflam that goes into deciding these critical cases."

When the high court stepped in to block the "Clean Power Plan" in 2016 with nothing more than a paragraph, while Justice Elena Kagan blasted it as "unprecedented." But it's the Supreme Court, so this set the new precedent, and what has followed is a decade of anti-green technology. Red states jumped in with a "Hail Mary" to stop the new EPA rules from going into effect and the conservatives on the court agreed.

"At the time, SCOTUS had never before frozen an executive branch policy while an appeals court was still reviewing it (and had already refused to grant a stay)," the legal analysts explained. That was what happened in this case. The D.C. Circuit Court hasn't even heard arguments over the case yet. Meanwhile, because the requirements didn't take effect until 2018, states had years to address them in court. Fossil fuel companies were given six years to prepare.

But the conservative justices still claimed there was a huge sense of urgency, and they needed to step in to stop everything from moving forward.

The leaked memos from Roberts and Justice Stephen Breyer, exchanged with their colleagues, show how they came to the conclusion that it was an "emergency" and that the shadow docket needed to step in.

"Perhaps most shockingly, this correspondence reveals that it was the chief justice who pressed hardest for a swift and sweeping decision, and that his reasoning had far more to do with presidential politics and personal grievance than any majestic legal logic," wrote Stern and Lithwick.

"More than anything, the new reporting puts the lie to the hollow claims of the chief justice sitting astride a mythical 3–3–3 court where his measured centrism guides the nation through partisan times. It is now manifestly clear that Roberts is himself a top partisan operator, especially under the cover of secrecy and internal norms of collegiality and confidentiality," they added.

While Vladeck detailed the legal mistakes in the ruling, Lithwick and Stern bashed Roberts for his catty snit, claiming that Obama shouldn't be able to "transform a substantial swath of the nation’s economy" without it being "tested by this Court before it is presented as a fait accompli. But it seems that the EPA is sufficiently confident of this rule’s immediate implications that not even the combined efforts of Congress and the President could reverse its effects.”

The Slate writers called Roberts' "glib" reaction particularly rich, given he has spent the past decade voting "to let the Trump administration implement a policy with immense, irreversible national consequences before his court has approved it on the merits."

The only way that they can read the comments from Roberts (and supported by Justice Samuel Alito) is that they were somehow offended, Lithwick and Stern said. "That the Obama administration, by way of comments, was somehow disrespecting the high court."

In Alito's memo, he claimed that the regulations would make a “nullity” of the court’s power and “institutional legitimacy," the piece said. Roberts went so far as to attack the EPA administrator, saying that if they didn't stop the rule immediately, then everything would be "functionally irreversible."

It wasn't a personal attack; it was an attack on the court as an institution. "Obama’s EPA was allegedly short-circuiting the court’s much-prized supremacy, and needed to be put in its place," the legal analysts explained.

The result has been the Supreme Court's "profoundly flawed analysis" of how to define an "emergency" so that they can "rubber-stamp policies and practices that seem dubiously meritorious, with adverse effects on millions of people waved away," the analysis closed.

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AN 2 26

Trump](https://www.alternet.org/2020/11/trump) is furious after losing his tariff case before the U.S. Supreme Court. The high court ruled that Trump overstepped his authority when he tried to make "emergency" tariff laws in retaliation against countries that weren't nice to him.

Speaking about the matter on Friday, legal analyst and CNN reporter Paula Reid noted that even Trump's own lawyers have been shocked by the Supreme Court granting him so much leeway on the "unitary executive theory."

"So, there's been a question about whether there still is a respect for separation of powers, and I think that's what really matters," Reid said. "That matters so much in the Trump administration right now because I think we're seeing a lot of questions about how he might use his office to take over — he has taken over the Justice Department. Used that to pursue his enemies, use that to try and put his thumb on the scale of the election. Will there be a check on President Trump?"

CNN legal analyst Elliot Williams cited the separation between Justice Brett Kavanaugh and Chief Justice John Roberts, wondering if there's an "intellectual fracas" brewing between the two conservatives on the law.

He predicted that over the next few years, there will likely be more conversation about the "Major Questions Doctrine." It is an idea that in order for the president to act, Congress must give him the power to do so under the law.

Kavanaugh and Roberts clashed in the ruling today, where Kavanaugh said that an issue like this is "squarely in the authority of the president," Williams characterized.

"So, I think the next several years of debates between the conservatives over what the reach of conservative jurisprudence ought to be," he added. "We saw the road map for it here."

New York Times White House correspondent Zolan Kanno-Youngs recalled the conversation he had with Trump in the Oval Office, where he was "candid" about "just how disappointed he would be in the justices he helped put on the Supreme Court. It almost seemed like he would personally be insulted by this."

Kanno-Youngs noted that it will cause problems for Trump in other foreign policy because he uses tariffs as a "diplomatic sledgehammer, right? This is what he hangs over nations when they don't do what he wants. It was his threat before Greenland."

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AN 1 26

An extensive new study from a team of Ivy League economists has uncovered just how much the Supreme Court has shifted towards favoring the wealthier side in any given case, with a New York Times report concludingreport concluding that you can "follow the money" to determine how it will in any given case.

The new study, dubbed "Ruling for the Rich," was published on Monday and hailed from the team of Yale's Fiona Scott Morton, Columbia's Andrea Prat and Columbia's Jacob Spitz. Adam Liptak, the leading Supreme Court correspondent for the Times, dug into its findings, noting that "the wealthy have the wind at their backs before the justices," and questioning whether or not they are living up to their oath to "do equal right to the poor and to the rich."

Per Liptak's analysis, the study found that Republican appointees, who have held a 6-3 majority on the Supreme Court since 2020 and an overall majority for much longer, are "far more likely than Democratic ones to side with the wealthy," and adding "that the Supreme Court has become deeply polarized in cases pitting the rich against the poor." This is now in sharp contrast to the court of the mid-20th Century, "when appointees of the two parties were statistically indistinguishable" in terms of favoring wealthier parties.

Specifically, the study found that Republican-appointed justices sided with wealthier parties in cases around 70 percent of the time. By comparison, in 1953, conservative justices sided with them only 45 percent of the time.

Speaking with Liptak about the findings, Adam Cohen, author of the book "Supreme Inequality," noted that the study essentially reiterated ideas about the court's conduct that "some of us have been observing for a long time."

“But it is great to see,” Cohen added. “Respected academics crunching the numbers and producing the data to show that this is exactly what has been going on.”

These findings come as leaders in both political parties are ramping up plans to radically alter their campaign finance plans ahead of an upcoming decision, in which the court is widely expected to lift the limits on how much party committees and campaigns are allowed to coordinate with each other. This, experts argue, would hand even more power to the wealthiest donors and further erode the power of small-dollar donors.

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an 11 25 tim snyder orig is not in const

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Mother Jones writers Pema Levy and Ari Berman say that President Donald Trump "owes his corrupt and abusive reign to one man" — Supreme Court Chief Justice John Roberts.

"Twenty years ago, John Roberts promised that as chief justice of the Supreme Court, he would be like an umpire, calling balls and strikes," they write.

"His promise charmed senators and the media, who believed that his predilection for executive power and long-held antipathy for civil rights could be moderated by this commitment to faithfully apply the law," they add.

But Roberts wasn't what he seemed, they say.

"The delusion was so powerful that for two decades, the media defaulted to portraying him as a moderate institutionalist, pointing to high-profile decisions — to uphold parts of the Affordable Care Act or striking down President Donald Trump’s attempt to ask about citizenship in the 2020 census — in which he broke from conservative orthodoxy," they write.

Roberts, they say, is the sole reason for Trump's authoritarian streak.

"Today, as the Roberts court rewrites the Constitution in the image of Trumpian autocracy, it’s become clear that Roberts’ promise to be a neutral umpire was a lie. We are watching a rigged game, and Roberts set it up," they write.

"The Roberts court has spent Trump’s second term not applying the law so much as clearing it out of his way," they add.

Among the lawless actions Roberts has allowed: "firing independent agency commissioners, using racial profiling in immigration sweeps, disappearing immigrants to authoritarian and war-torn nations, and defying Congress’ power of the purse," they note.

But Roberts' "acquiescence to an anti-democratic America" isn't new, noting he "has been embedding white-dominant authoritarianism into the country’s source code for two decades. It’s impossible to imagine today’s crisis without the Roberts court having first undermined the foundations of our democracy."

Ryan Doerfler, a Harvard Law professor who studies the judiciary’s role in a democratic system, says that "You really can trace, in so many ways, the moment we’re in to critical decisions surrounding our law of democracy."

And much of that began with Roberts, who, "over the last five decades, has taken aim at the law, beginning as a young lawyer in President Ronald Reagan’s Justice Department fighting its reauthorization, when he claimed it would 'lead to a quota system in all areas,'" the Mother Jones writers explain.

"In 2019, Roberts toppled another pillar of democratic governance — if you don’t like a politician, you can vote them out — by writing in Rucho v. Common Causethat federal judges could not even review claims of partisan gerrymandering, deeming them 'political questions beyond the reach of the federal courts,'" they explain.

The writers also note that "Roberts didn’t just strip political power from ordinary people — he handed it to billionaires."

His decisive vote in 2010’s Citizens United v. FEC "lifted restrictions on political spending, while ludicrously insisting it would not 'lead to, or create the appearance of, quid pro quo corruption.' Political spending by billionaires has since increased 160-fold," they note.

That decision is "a direct line between the ruling and Elon Musk buying Trump the White House with more than $290 million and being given free rein to fire his companies’ regulators in return," they add.

In his nearly five decades in law, Roberts, they write, "didn’t wait till he was on the Supreme Court to empower Republican presidents — he auditioned for the job by showing his willingness to break the rules and come through for his team."

And under Trump, "we are now operating under a Robertsian reimagining of the separation of powers, in which laws passed by Congress are mere suggestions for a monarchical president," they explain.

"Trump needed Roberts to win, and Trump’s victory came just in time for Roberts," they add. "His corrupt bargain has had an exorbitant cost, both for the nation and the court’s reputation."

The writers agree, saying, today's court under Roberts "will greenlight Trump’s corrupt, self-enriching behavior and unlawful power grabs. The majority will instinctively know that its fate is tied to the fate of Trump’s movement, and so it will protect it. The result will be a democracy in name only."

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an 10 25

America is currently at war over partisan gerrymandering. The Republican-controlled Texas legislature has just gerrymandered voting districts to create five more safe Republican US House seats, as demanded by Trump.

Then Missouri Republicans were ordered by Trump to enact a gerrymander to increase the states’ disproportionate Republican minority from 6-2 to 7-1 by cutting Democratic-leaning Kansas City voting districts down the middle. Now JD Vance is urging Indiana Republicans to gerrymander the only two remaining Democratic House districts out of existence.

In response, California Governor Gavin Newsom has proposed a ballot measure that would temporarily suspend California’s independent redistricting commission until 2030 and let the Democratic legislature redistrict Republicans out of five seats to match what Republicans have done in Texas.

A large majority of voters nationally don’t think partisan gerrymandering should be legal. According to a recent YouGov poll, 69% of Americans think partisan gerrymandering should be illegal and only 9% think it should be legal.

Chief Justice John Roberts (and all of his Republican colleagues on the Supreme Court) disagree with this vast majority of Americans. In 2019, Roberts’ 5-4 majority opinion in Rucho v Common Cause (joined by the four other Republicans on the Court) held that federal courts do not have the constitutional power to prevent partisan gerrymandering and restored blatantly partisan gerrymanders in North Carolina and Maryland.

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Since Roberts’ decision, partisan gerrymandering has exploded. According to Michael Li of the Brennan Center, partisan gerrymandering has given Republicans 16 extra seats in the House. Without that, Democrats would have a House majority and Republicans would not be able to pass the so-called “big beautiful bill” which has led to a government shutdown. As the Brennan Center states, “Gerrymandering decided House control.”

Roberts’ opinion conceded that partisan gerrymandering is “incompatible with democratic institutions” and “leads to results that reasonably seem unjust.” But Roberts then invented a procedural technicality to bar Federal courts from doing anything about it or to uphold the Constitutional principle of “one person, one vote.” Roberts claimed that partisan gerrymandering is a so-called “political question” that Federal Courts have no right to question and must be left to the states. Of course, when one party controls the state legislature, they have every incentive to draw voting districts to guarantee they never lose political power, no matter what the view of the voters is. Voters don’t get to pick their own legislators. Instead, legislators get to pick their voters. In her dissent—joined by Justices Ginsburg, Sotomayor, and Breyer—Justice Kagan wrote:

"For the first time ever, this Court refuses to remedy a constitutional violation because he thinks the task is beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the right participate equally in the political process, to join with others to advance their political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy...enabl[ing] politicians to entrench themselves in office as against voters' preferences...They encouraged a politics of polarization and disfunction."

Is it any wonder that a NY Times/Siena poll taken last week found that only 33% of voters believe that America’s political system can still address the nation’s problems, while 64% believe the political system is too politically divided to solve the nation’s problems?

As former Senate Judiciary Committee counsel Lisa Graves argues in a new book, “[i]n the last twenty years the US Supreme Court has radically curtailed voting rights, undermined anti-corruption measures, encouraged extreme political gerrymandering, restricted the regulation of guns, and obliterated the constitutional right to control one’s reproductive choices. This transformation was orchestrated by a billionaire-backed reactionary political movement, whose interests Chief Justice John Roberts has been all too willing to serve.”

Citizens have no power to overturn a US Supreme Court decision. However, California citizens have the ability to equalize Texas Republicans’ gerrymander of five House seats. On November 4, they can pass Proposition 50 which lets the State legislature temporarily draw new congressional district maps through 2030, at which point the Independent Citizens Redistricting Commission would resume control of redistricting, and supports nonpartisan redistricting commissions nationwide.

It won’t completely block John Roberts’ 20-year long project to undermine democracy and judicially enact the increasingly MAGA Republican agenda. (It wouldn’t be an exaggeration to call it a “judicial coup”.) Indeed, this week SCOTUS heard oral arguments in a case where it appears that Roberts will lead the Republican majority to overturn Section 5 of the Voting Rights Act which protects the right of Black voters to have electoral representation. Such a ruling could likely flip as many as 19 House seats from Democratic to Republican, cementing a Republican House majority for the foreseeable future, regardless of the will of the voters.

Passing Proposition 50 is one thing Californians can do to fight back against Justice Roberts’ undemocratic judicial campaign, which has helped enable Trump’s authoritarianism. Mail-in ballots have already been sent out so California voters can cast “Yes” votes for Proposition 50 from now until November 4. Beyond that, thanks to John Roberts and his Republican colleagues on SCOTUS, other Blue states will have to be brought into the gerrymander wars and enact their own partisan gerrymanders to balance Republican gerrymanders to the extent possible.

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AN 10 25

Submissive' Supreme Court 'does Trump’s bidding' as new term gets underway: analysis

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an ah 10 25

When then-President George W. Bush chose John Roberts to head the U.S. Supreme Court in 2005 following the death of Chief Justice William Rehnquist, the combination of justices was much different from what it is today.

The High Court leaned conservative and had some hardcore social conservatives (Clarence Thomas and the late Antonin Scalia). But conservative Ronald Reagan appointee Anthony Kennedy had strong libertarian leanings, joining the late liberal Justice Ruth Bader Ginsburg in some landmark gay rights rulings. And Donald Trump's first presidency was more than a decade away.

In 2025, Roberts oversees a hard-right 6-3 GOP-appointed supermajority, half of which was nominated by Trump. Lisa Graves, who heads the judicial watchdog group True North Research, believes that Roberts is doing little to discourage the MAGA agenda — a point she emphasized in an interview with Mother Jones' Pema Levy published in Q&A form on October 3.

Referencing 2022's Trump v. the United States, Graves told Levy that "the immunity decision signaled that Roberts has moved more into MAGA Land."

Graves continued, "He has really taken the driver's wheel in terms of embracing a MAGA agenda, and that's reflected in the January 6 trio of cases last year — and in particular, the unprecedented immunity decision, and is reflected in the rulings this year, these emergency rulings. He is embracing the White House’s position on immigration in a way that is not consistent with most of the business community that does not support these sort of aggressive attacks on immigration and our employment systems."

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In Trump v. the United States, the High Court's GOP supermajority ruled that U.S. presidents enjoy absolute immunity from criminal prosecution for "official" acts but not for "unofficial" acts. Justice Sonia Sotomayor, in her scathing dissent, warned that the decision gives a dangerous amount of power to the federal government's executive branch.

"At his confirmation hearings," Graves recalled, "(Roberts) affirmed that no president is above the law, no one is above the law. And then, when it mattered most for him to stand for that principle, he not only abandoned it — he aggressively wrote this very expansive opinion, ignoring the language of the Constitution that says in two places, the job of the president is to faithfully execute the law. And nothing could be less faithful than breaking the law."

*Read the full Mother Jones interview at this link.

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an 9 25

This is a win': Supreme Court issues rare decision to halt Trump’s firing of Lisa Cook

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RWW

09/24/2025

Kyle Mantyla

Katherine Kelaidis @ Vox: MAGA’s first martyr

The killing of Charlie Kirk could turn the movement into a faith that outlives Donald Trump.

William Bredderman and Aneela Mirchandani @ Mother Jones: Inside the Hidden Conservative Network Bankrolling an “Ecosystem” of Right-Wing News

John Solomon’s Informing America set out to create an echo chamber to shape public opinion. It’s working.

The Throckmorton Initiative: David Barton Appointed Texas History Advisor

State Board of Education picks Barton for advice on history.

Jonathan Greco @ KOCO: Ryan Walters says every Oklahoma high school will have a Turning Point USA Club America chapter

Turning Point USA, which was co-founded by Charlie Kirk, helps organize and educate students in conservative principles.

Will Neal @ The Daily Beast: Trump Goon Threatens Sandy Hook Hero for Suing Alex Jones

InfoWars founder celebrates after DOJ asks questions about FBI special agent who responded to the Connecticut school shooting.

Matt Ford @ The New Republic: The Roberts Court Is Winning Its War on American Democracy

Twenty years ago, Chief Justice John Roberts took the oath of office and ushered in a new era for the Supreme Court. His 2005 confirmation vote marked the transition from the Rehnquist court—where a narrow majority of conservatives and moderates had largely maintained the status quo on abortion, affirmative action, and voting rights—into something much more reactionary.

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The one man who's done more to destroy democracy than Donald Trump

AN COMM DR FRED W 9 25

Chief Justice John Roberts is smart and skilled. He will be remembered, however, as a historic failure.

This is not a claim to make lightly, but his record compels it, because Roberts’ legacy will be defined by two catastrophic roles he played.

First, Roberts has played the lead role in destroying indispensable rules of our democracy.

Second, Roberts has played the lead judicial role in serving as the handmaiden to President Trump’s efforts to turn our democracy into an autocracy. This historic failure will be detailed next week in Part II.

Destroying essential rules of democracy

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Roberts has taken the lead in writing a series of opinions that have destroyed essential rules governing our democracy. They deal with:

The sacred right of every eligible citizen to vote.
The integrity and honesty of the political system.
The right of citizens to have an unrigged opportunity to choose their representatives.
The idea that public officials should not be allowed to sell influence with their office.
The foundational principle that no person is above the law.

The following opinions, written by Roberts and joined in all but one case only by the Republican-appointed majority on the Court, have done unprecedented harm to our democracy.

*Shelby County v. Holder

Roberts wrote the majority opinion for a 5–4 decision in Shelby County v. Holder(2013). It declared key sections of the landmark Voting Rights Act of 1965, the most consequential voting rights law ever enacted, to be unconstitutional. The Act was reenacted periodically over decades until the Shelby County decision.

*The Roberts opinion unleashed a wave of regressive and discriminatory voting changes by states and local jurisdictions that disadvantaged minority voters and impeded their voting rights and their ability to fully participate in the democratic process.

McCutcheon v. Federal Election Commission

Roberts wrote the majority opinion for a 5–4 decision in McCutcheon v. Federal Election Commission (2014) which struck down the aggregate limit on all contributions by a donor in an election cycle, a provision previously held constitutional by the Supreme Court in Buckley v. Valeoin 1976.

InBuckley, the Supreme Court had found that unlimited contributions given to support candidates were inherently corrupt. The McCutcheon *decision, however, eviscerated the limits on individual contributions to candidates by unleashing billionaires, millionaires, and other big money donors to give unlimited, often huge, contributions to Super PACs to benefit specific candidates.

*Rucho v. Common Cause

Roberts wrote the majority opinion for a 5–4 Court decision in Rucho v. Common Cause(2019),in which the Court decided that it could not act on challenges to partisan redistricting plans. The decision claimed that the Court is incapable of establishing standards for determining when partisan maps become unconstitutional, no matter how extreme.

TheRucho *decision means that there are no constitutional restrictions on partisan gerrymandering, no matter how rigged the plans are. The result is that politicians get to choose their voters rather than voters choosing their representatives.

*McDonnell v. United States

Roberts wrote the unanimous opinion in McDonnell v. United States, (2016), which vacated the conviction of former Virginia Governor Robert McDonnell for honest services fraud and extortion. In his opinion, Roberts said that McDonnell’s actions did not constitute “official acts” under the applicable laws, including the bribery law.

In its decision, the Court adopted a narrow, unrealistic construction of the term “official act” to exclude various acts of an officeholder that should be covered, even when those acts are done in direct exchange for gifts or other benefits. For all practical purposes, the Court has left the country without effective bribery laws to prevent public officials from selling their office for financial benefits.

*Trump v. United States

Roberts wrote the opinion for a 6–3 majority in Trump v. United States (2024), which gave Trump presidential criminal immunity.

The decision violated a guiding principle of our Founders that no person is above the law. The Roberts opinion placing Trump above the law and also giving him personal control of the Justice Department and FBI can be seen in such outrageous Trump pronouncements as the statement that he has “The right to do anything I want to. I’m the president of the United States,” and “I run the country and the world.”

*It is unlikely that any Chief Justice in history played more of a role in destroying more of our nation’s democracy rules than Roberts. And that is how he will be remembered.

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an 8 25

Legal analyst James Zirin tells Washington Monthly that the increasingly unmoored U.S. Supreme Court is floating out to sea, particularly with its split decision on the National Institutes of Health (NIH) case.

Through an executive order, President Donald Trump declared NIH grants can no longer fund scientific research related to diversity, equity, and inclusion (DEI), including gender identity, COVID-19 studies or grants related to race. The Supreme Court issued an interim shadow docketdecision regarding Trump’s cancellation of $783 million NIH.

“The short, unsigned order … was all over the place,” said Zirin. “Eight justices, except Amy Coney Barrett, dissented from part of the ruling. The 5-4 split decision had no majority opinion and just a single, sparse paragraph.”

Zirin reports four Republican-nominated justices (Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh) voted to reverse an order for the government to pay the funds. But four other justices (John Roberts, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson) voted to affirm the lower court’s decision. Meanwhile, Barrett stayed the repayment but left the guidance vacated.

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The court’s unsteady decision somehow blocks grant funding while agreeing with the mechanics that allow it to proceed.

“Curiously, Chief Justice John Roberts, who has evinced an outsized deference to the president, went wobbly,” Zirin said. “Joining the liberals’ dissent, he noted the government had conceded that the district court’s two remedies are ‘inseparable.’ Roberts concluded that, in such circumstances, the district court was not ‘required . . . to split [the Siamese twins] into two parts.’”

This means the administration can, for now, withhold NIH funding for research it deems “woke,” even though litigation over NIH grant payments will likely proceed in the Court of Claims.

“The Court’s illogic boggles the mind,” said Zirin. “How can they plausibly hold that … the government’s conduct is probably illegal, and then allow the illegality to continue indefinitely while they consider the matter?”

Justice Ketanji Brown Jackson described the NIH decision as the “newest entry in the Court’s quest to make way for the Executive Branch” and one that “has real consequences, for the law and for the public.”

Zirin, a former federal prosecutor in New York’s Southern District, said with casinos, “the House always has an advantage, and it doesn’t need to explain why. On the Supreme Court shadow docket, it’s not entirely different — heads, Trump wins; tails, the people lose. And there’s no need to explain why.”

Read the full Washington Monthly report at this link.

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pete

chevron deference

...

But at its heart, it was a fight over federal regulatory overreach that affects all of us,” said Casey Mattox, vice president of legal strategy at Stand Together. “These fishermen are pushing back against the idea that unelected federal bureaucrats can claim the power of our elected members of Congress. It is Congress’s job to make our laws and it never imposed these burdens on these fishermen.”[55] Chief Justice John Roberts has been particularly skilled at finding small cases which would allow the Supreme Court to revisit previously settled law.

The famous Shelby v. Holder decision by Roberts effectively freed Southern states from having to seek Federal ‘preclearance’ before changing any voting laws, a restriction placed on them because of their history of bad-faith racial animus and voter suppression aimed at limiting the African-American vote. Following Shelby, Roberts admitted Abbot v. Perez in 2018 and joined a decision making it harder for plaintiffs to prove gerrymandering was organized to suppress the black vote.

Robert’s decision granted lawmakers (who had practiced segregation and Jim Crow laws for decades) the presumption of racial neutrality.[56] Roberts’ definition of racism is based in pre-civil-rights law realities—lynching, eugenics, genocide, disarming of black people, bigoted prosecutors, and all the easily identifiable physical threats and restrictions of racism.

If current events do not resemble the earlier ones, such as gerrymandering, red-lining, curtailing of loans to black farmers, Roberts does not identify them as racism. Khiara Roberts, writing in the Harvard Law Review[57] unmasks his anemic definition: “The Roberts Court’s impoverished conceptualization of what “counts” as racism against...

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omg 6 25 an neutered judic on natl injunction

dissent soto and kbj

What the Supreme Court did was far more dangerous than ending birthright citizenship

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an 'All power to Trump': 'Worst modern chief justice' John Roberts bashed in scathing editorial 7 25

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an 4 25

Legal analysts continue to express concerns over President Donald Trump's defiance of the Supreme Court regarding the deportations carried out by the administration, which have been criticized for lacking due process.

In an article for The Atlanticpublished Friday, journalist Adam Serwer wrote that the Trump administration thinks it possesses a dictator’s prerogative to disappear people off the street and spirit them to CECOT, and that the Supreme Court has not done enough to stop him.

"The Roberts Court has sought to avoid direct confrontation with the Trump administration, but the administration’s insistence that it possesses a dictator’s prerogative to disappear people off the street and spirit them to CECOT has drawn the reluctant justices in," he wrote, in the article titled "The Supreme Court’s ‘Selective Proceduralism’ Would Suffocate the Constitution."

Serwer noted that on April 7, the justices released an order indicating that the administration was prohibited from deporting immigrants under the Alien Enemies Act, an outdated law from the 18th century, without ensuring due process. Although four justices disagreed about permitting the administration to proceed with deportations, all nine justices endorsed the principle of some level of due process for the detainees. While the act only permits the deportation of foreign nationals, the legal rationale put forth by the administration could potentially allow Donald Trump to mistakenly deport American citizens to El Salvador without making any attempts to bring them back.

ALSO READ:Supreme Court at severe disadvantage in dealing with Trump's 'shocking' behavior: expert

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"[Justice Sameul] Alito complains that the Court rushed its judgment, acting as though there were some sort of emergency, when in fact there was a genuine emergency, and the rushing was entirely justified," Serwer wrote in the article.

"The administration has also flouted a Supreme Court order telling it to 'facilitate' the return of Kilmar Abrego Garcia, a Maryland resident under a protective order who was sent to CECOT 'in error.' Alito and Thomas must be aware that Abrego Garcia remains confined and that both Salvadoran President Nayib Bukele and Trump have pretended not to have the power to release him, joking about it in front of cameras in the Oval Office," the writer said.

"Selective proceduralism is probably unavoidable given ideological disagreements among the justices, but under these circumstances it takes on a sinister cast, a pantomime of the rule of law that acquiesces to Trump’s assertion of dictatorial powers inconsistent with the Constitution or with basic principles of due process and civil rights. It facilitates authoritarianism while pretending that laws still matter. If the Trump administration can get away with violating the Constitution because it knows the courts will be too slow to prevent it, then those constitutional rights simply no longer exist," he added.

ALSO READ:Supreme Court's unanimous decision against Trump reveals an important detail

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Supreme Court Chief Justice John Roberts temporarily blocked a district court order demanding Salvadoran national Kilmar Abrego Garcia be returned to the US by midnight tonight. The Trump administration removed Garcia despite his legal status, claiming without evidence that Garcia was involved with gangs that Garcia’s wife says he was trying to escape in Venezuela. The Trump administration admitted in court that the deportation was an “administrative error.”

Roberts ordered lawyers to respond by Tuesday at 5 PM Eastern Time, but critics say the judge had no business delaying the correction of what they characterized as an illegal kidnapping.

“The john Roberts SCOTUS will go down in the history books as responsible for the downfall of American democracy,” wrote MeidasTouch reporter Suri Crowe. “Roberts is grossly corrupt. I cannot … an innocent man is in a death camp and Roberts pauses his return?!”

“EVIL REMAINS THE BRAND,” wrote Bombshell Daily. “Donald now pressures the Supreme Court to keep an innocent Maryland man from being returned to his family. An inability to admit mistakes is why our economy, and perhaps democracy, are doomed."

Earlier Monday, a three-judge panel for the 4th U.S. Circuit Court of Appeals unanimously tossed the Trump administration’s request to overturn a lower-court order demanding they return a Garcia to the U.S.

“The United States Government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process. The Government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable.” the panel ruled, adding that the administration’s continued disregard for the court system and the rule of law made it easy to envision “a path of perfect lawlessness, one that courts cannot condone.”

“Do we even know if this man is still alive?” demanded a Bluesky commenter. “He's in one of the deadliest prisons in the world. Does SCOTUS have any decency left in them? … They had better act fast because Kilmar may not have much time.”

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AN 3 25

The U.S. Supreme Court delivered at least a temporary blow to President Donald Trump on Wednesday by refusing to overrule a lower court order that said approximately $2 billion in U.S. foreign aid funding ordered frozen by the administration should be resumed.

The 5-4 ruling, issued by Chief Justice John Roberts, paves the way for organizations and programs worldwide working in conjunction or with grants from the U.S. State Department and the U.S. Agency for International Development (USAID) to receive those funds already appropriated by Congress.

The legal team challenging the administration's move to block the funding celebrated the ruling.

“Today's ruling by the Supreme Court confirms that the administration cannot ignore the law," said Lauren Bateman, an attorney with Public Citizen Litigation Group and lead counsel in this case, said in response to the decision. "To stop needless suffering and death, the government must now comply with the order issued three weeks ago to lift its unlawful termination of federal assistance."

The center of the case that was before the high court stems from a lawsuit brought by nonprofit groups and NGOs impacted by the funding freeze, who argued that results were "devastating" for programing that "improves—and, in many cases, literally saves—the lives of millions of people across the globe."

In the suit, as CNNreports, the groups argued the administration's freezing of funds "usurped the power of Congress to control government spending and violated a federal law that dictates how agencies make decisions."

On February 13, U.S. District Judge Amir Ali, in a temporary restraining order, said the State Department and USAID must resume most of the funding while the case was under review, but the plaintiffs argued in a filing last week that little, if anything, had been done to comply with that order.

"The district court gave the government every opportunity to demonstrate what steps it was taking to release foreign-assistance funding, as the TRO required, and to explain any practical impediments it faced in pursuing compliance," the groups wrote in their filing."But even by the time of the district court's February 25 hearing—nearly two weeks after the TRO had issued—government counsel could not identify a single action the government had taken in the twelve days since the TRO to release frozen funds."

Wednesday's ruling by the Supreme Court did not make any judgment on the overall merits of the case that remains under review by the lower District Court.

ALITO DISSENT

The Supreme Court refused to let President Donald Trump freeze billions in foreign aid. In his dissent, Justice Samuel Alito wrote that he was “stunned” that the court would not allow Trump’s order to stand, Law & Crime reported Wednesday.

The court issued a 5-4 ruling denying the Trump administration’s request to stop an order from a federal judge to pay almost $2 million in foreign aid funding on work that is already done. Alito called the judge’s decision “an act of judicial hubris.”

“Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars?”Alito wrote. “The answer to that question should be an emphatic ‘No,’ but a majority of this Court apparently thinks otherwise. I am stunned.”

Trump froze the funds, which are from USAID and the State Department, as he seeks to shrink the federal government. Nonprofit groups sued, arguing that the move went above Congress’ authority. Trump has since dismantled USAID.

Alito, along with Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh argued that U.S. District Judge Amir H. Ali stepped beyond his authority in his decision. Chief Justice John Roberts, as well as Justices Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson and Amy Coney Barrett comprised the majority.

Experts have been keeping an eye on whether the Supreme Court will align with Trump during his second administration.

“The unsigned order does not actually require the Trump administration to immediately make up to $2 billion in foreign aid payments; it merely clears the way for the district court to compel those payments, presumably if it is more specific about the contracts that have to be honored,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.

“The fact that four justices nevertheless dissented – vigorously – from such a decision is a sign that the Court is going to be divided, perhaps along these exact lines, in many of the more impactful Trump-related cases that are already on their way,” he added.

Alito said that the Supreme Court failed in its responsibility to make sure the Constitution “is not abused.”

“Today, the Court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers,” he wrote. “The District Court has made plain its frustration with the Government, and respondents raise serious concerns about nonpayment for completed work. But the relief ordered is, quite simply, too extreme a response. A federal court has many tools to address a party’s supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them. I would chart a different path than the Court does today, so I must respectfully dissent.”

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The U.S. Supreme Court swiftly responded to President-elect Donald Trump’s formal request early Wednesday morning to delay sentencing in his 34-count felony conviction for business fraud in New York, widely known as the “hush money” case.

Trump is scheduled to be sentenced in New York Supreme Court on Friday, for what District Attorney Alvin Bragg described as “falsifying New York business records in order to conceal his illegal scheme to corrupt the 2016 election.” Trump originally was slated to be sentenced on July 11, but he twice succeeded in having those dates postponed. His attorneys in recent days filed unsuccessful motions in two New York courts to have the sentencing delayed again, before submitting their case to the U.S. Supreme Court.

Describing his latest attempt as “a highly unusual request that relies in part on the court’s decision last year to grant him broad immunity from criminal prosecution,” CNN reports Trump’s attorneys told the nation’s highest court the delay, or pause, is necessary “to prevent grave injustice and harm to the institution of the presidency and the operations of the federal government.”

Trump’s argument, in part, is based on the U.S. Supreme Court’s ruling granting him and all subsequent presidents vast immunity from prosecution for what it deemed are “official acts” of the presidency. Many legal experts doubt Trump’s conviction on falsifying business records when paying “hush money” to an adult film star is an official act of the presidency.

The Supreme Court Wednesday morning responded to Trump’s request by directing New York District Attorney Alvin Bragg to reply to Trump’s motion by 10 AM ET Thursday, Lawfare senior editor Roger Parloff reported. Law360’s Katie Buehler also reported SCOTUS’s response.

“If Trump’s lawyers are successful in halting the proceedings before he is sworn-in in fewer than two weeks, the hush money case could linger for months while his attorneys pursue an appeal to toss out the conviction,” CNN adds.

ABC News’ Peter Charalambous notes, “Trump’s lawyers have asked the country’s highest court for an unprecedented intervention in the ongoing criminal case of a former president — whose appointment of three justices cemented the court’s conservative majority – that would effectively toss his criminal conviction less than two weeks ahead of his inauguration.

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On the last day of 2024, U.S. Supreme Court Chief Justice John Roberts issued his "2024 Year-End Report on the Federal Judiciary."

This was the 20th annual year-end report that Roberts has issued since being appointed chief justice by then-President George W. Bush in 2005. The High Court has changed a lot since that appointment 20 years ago, when it leaned conservative but didn't have the 6-3 GOP supermajority that it has now. And Roberts, in his report for 2024, was highly critical of "public officials" who have accused judges of showing a "political bias."

"Public officials certainly have a right to criticize the work of the judiciary," Roberts wrote, "but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others."

In a biting article published on New Year's Day 2025, Rolling Stone's Andrew Perez argues that Roberts' comments sounded a lot like President-elect Donald Trump's rhetoric.

" Trump is so proud of the conservatives on the Court that he frequently praised the justices, individually by name, at 2024 campaign events — thanking them for their 'courage' in deciding to overturn Roe v. Wade, so states could ban abortion," Perez writes. "At a September rally, Trump called the conservative justices 'very brave' and argued that 'people should be put in jail' for criticizing them. The Supreme Court's chief justice, John Roberts, is now echoing Trump's demand that people stop criticizing him, his colleagues, and other federal jurists — while continuing to pretend that judges are not political."

Perez continues, ":{In his annual end-of-year report, issued on Tuesday, Roberts wrote that public officials (read: Democrats) 'regrettably have engaged in recent attempts to intimidate judges — for example, suggesting political bias in the judge's adverse rulings without a credible basis for such allegations.'"}:

The Rolling Stone journalist argues that it's "ridiculous" to deny that Supreme Court justices are "political appointees."

"In his first term as president," Perez observes, "Donald Trump built a conservative 6-3 supermajority on the Supreme Court. Ever since, the nation's highest court has repeatedly issued increasingly extreme, far-right decisions on topics of abortion, race, the environment, corruption, and much more."

Perez continues, "The Supreme Court has eliminated federal protections for abortion rights; limited the federal government's ability to regulate carbon emissions, protect Americans' drinking water, and limit ozone pollution; gutted federal agencies' ability to implement regulations generally; opened up long-standing regulations to new challenges; made it easier for states to enact racial gerrymanders; eliminated college affirmative action policies; found businesses can discriminate against LGBTQ+ customers; permitted public school employees to lead students in prayer; decided that companies can pay public officials gratuities, or thank-you payments, for corrupt contracting decisions; and broadly shielded Trump from criminal prosecution for any so-called official acts he committed as president…. Roberts and his colleagues were appointed to the Supreme Court to carry out a conservative political agenda — and that's exactly what they have done. No one should pretend otherwise."

READ MORE:[Supreme Court signals it will uphold 'state-sanctioned discrimination' in new case

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badash

In 2005, President George W. Bush’s nominee, John Roberts, became Chief Justice of the Supreme Court. Five years later, just over one quarter of the country (27%) disapproved of him. By last year, that disapproval number had risen to nearly half the nation: 46%.

Since 2021, Gallup reports, the Supreme Court’s disapproval rating has consistently remained in the mid to upper 50s—a roughly ten-point increase compared to the previous decade. The majority of Americans have an apparent growing dissatisfaction with a court that wields ultimate authority while becoming increasingly secretive and activist on some of the nation’s most consequential issues.

While the Supreme Court’s job is not to make decisions based on popularity contests, it relies on the other two branches of the federal government to enforce its rulings. And when the Supreme Court’s credibility falls into question, some warn, our institutions may be at risk.

In October, Bloomberg Opinion’s Noah Feldman warned the Supreme Court’s “legitimacy crisis is getting worse.”

“Democrats’ faith in the court began to fail after the 2000 Bush v. Gore decision, then went into freefall over the last couple of years,” Feldman wrote. “They worry the justices aren’t sufficiently ethical. They deplore the eagerness of the court’s conservative majority to overturn 50 years of precedent on issues like abortion and affirmative action. They are appalled at the court’s defiance of originalism — the idea that Constitutional law should rest on the document’s original meaning — to grant criminal immunity to former President Donald Trump for official acts while president.”

Nearly two years ago the Alliance for Justice (AFJ), a progressive coalition of nearly 140 organizations “advocating for a fair and independent justice system,” published a piece warning that the Supreme Court was “destroying its own legitimacy.”

“The Court’s wounds are entirely self-inflicted,” William W. Taylor, III, wrote at the AFJ. “It has a far-right agenda and the scholarship informing its decisions is often questionable. Worse, new details have come to light of relationships some justices have had with wealthy ideological soulmates, including those with interest in cases before the Court. The Court’s credibility and the public’s acceptance of its decisions depends upon trust that it is not subject to outside influence. While lobbying may be common and acceptable in the legislative and executive branches, it is not — nor ought not to be — conceivable in our courts.”

The New York Times on Tuesday took a deep dive into the behind-the-scenes conversations at the end of the summer of 2023 among the Supreme Court justices as they weighed whether or not to establish a code of ethics, amid a nation angered by numerous reports of what many see as blatant corruption.

“Last year, pressure on the court and the chief justice intensified. Journalists revealed that Justice Thomas had accepted far more largess from Harlan Crow, a conservative donor, than he had disclosed, including decades of travel on private jets and a superyacht, and boarding school tuition for his grandnephew. The public uproar also reflected another concern: Virginia Thomas, his wife, had been involved in Mr. Trump’s efforts to overturn the 2020 election,” The Times reports.

“Faced with ethics controversies and a plunge in public trust, they were debating rules for their own conduct, according to people familiar with the process,” The Times adds, revealing that “behind the scenes, the court had divided over whether the justices’ new rules could — or should — ever be enforced.”

In the end, the justices all signed onto a new code of ethics for the nation’s highest court, but one that “had no means of enforcement.”

It was quickly criticized.

Liberals on the court have since gone public with their apparent frustration that although there is finally a code of ethics, there is no way to enforce it.

“All three liberals — Justices Sotomayor, Kagan and Jackson — supported enforcement, The Times reports.

“Rules usually have enforcement mechanisms attached to them, and this one — this set of rules — does not,” Justice Elena Kagan said in July.

“I haven’t seen a good reason why the ethics code that the Supreme Court adopted shouldn’t be enforceable,” Justice Ketanji Brown Jackson said. “Other justices have posited certain ways in which it could be made enforceable but we have not yet determined or decided to do that.”

By contrast, at least some of the majority right-wing justices appear opposed to any code, certainly one that would have methods of enforcement.

“In the private exchanges, Justice Clarence Thomas, whose decision not to disclose decades of gifts and luxury vacations from wealthy benefactors had sparked the ethics controversy, and Justice Samuel A. Alito Jr. wrote off the court’s critics as politically motivated and unappeasable,” The Times revealed. “Justice Gorsuch was especially vocal in opposing any enforcement mechanism beyond voluntary compliance, arguing that additional measures could undermine the court. The justices’ strength was their independence, he said, and he vowed to have no part in diminishing it.”

The Times also reveals that the justices “seemed to codify their own preferences” when they drafted, or signed off on the code of ethics.

Those preferences appear largely financial.

The justices “gave themselves no firm restrictions on gifts, travel or real estate deals. Nothing in the new rules appears aimed directly at the trips and gifts Justice Thomas accepted. The code says only that justices should uphold the dignity of the office and comply with existing gift guidelines, in separate federal rules, which make allowances for ‘personal hospitality.’ Justice Thomas has maintained that his nondisclosure of gifts and free travel did not violate those rules,” according to The Times. Other legal experts disagree, with some saying he broke the law.

Since signing the new code of ethics, “questions about the justices’ behavior have continued. The Times revealed that two provocative flags associated with the Jan. 6 riot had flown at the homes of Justice Alito and his wife. The second was displayed at his New Jersey beach house just as the justices were considering the new ethics rules. That summer, he also accepted concert tickets from a far-right German princess. He later disclosed those, but in keeping with the new rules, said nothing about his free stay at her 500-room Bavarian palace.”

Last month, U.S. Senator Sheldon Whitehouse (D-RI), among the Senate’s top proponents of Supreme Court reform, wrote: “As long as the Court maintains a secretive billionaire gifts program for justices and unique immunity from ethics scrutiny for itself, and as long as its decisions predictably align with those billionaire interests, its reputation will continue to crash.”

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Donald Trump Saturday made a move that is being seen as a middle finger to both the Supreme Court and the intelligence community, experts say.

Trump over the weekend announced his appointment of Kash Patel as the director of FBI, leading critics to lash out and causing a pre-emptive strike against Senate Republicans by a top MAGA lawyer who said he would make their political lives hell if they opposed Patel.

Sophia Cai, senior national politics reporter for Axios, said, "Trump's decision to name hardline loyalist Kash Patel to FBI director amounts to a massive middle finger to the intelligence community."

ALSO READ:A dark mystery from America's past could save us from Trump's tyranny

Conservative commentator Charlie Sykes also weighed in on the big picture of the Patel appointment.

"Underappreciated angle to the appointments of Patel, Gaetz, Bondi, et al. Massive Fuq U to institutions … But also a huge FU to the Supreme Court, because Trump doesn’t think they will be a check on his campaign of lawless retribution," he wrote Saturday. "Nice work, John Roberts."

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During the 2024 presidential race, radio host Charlamagne tha God predicted that if Vice President Kamala Harris defeated GOP nominee Donald Trump, the "corrupt" U.S. Supreme Court would go along with one of Trump's legal challenges and hand the election to Trump even though he had lost it.

But President-elect Trump enjoyed a decisive victory over Harris on Election Night 2024, and Harris subsequently gave her concession speech. Trump not only picked up at least 295 electoral votes — according to the vote count, he appears to have won the popular vote as well.

During his second term, Trump is likely to push the U.S. Supreme Court — which has a 6-3 GOP-appointed supermajority — even more to the right.

In a scathing article published on November 8, Mother Jones' Pema Levy argues that the Roberts Court has repeatedly run interference for Trump — and helped his campaign more than once.

"Why Americans chose a demagogue to helm their democracy may be partially explained by the fact that, in many ways, the United States isn't a democracy any longer — and in many ways, that's thanks to the Roberts Court," Levy argues. "Our system was never perfect; on a basic level, the U.S. only became a democracy in 1965 when it finally gave all Black people the right to vote. But for nearly two decades, Roberts and his colleagues have done immense damage to the underpinnings of the democracy Americans painstakingly built."

Levy adds, "They have reallocated political power from ordinary citizens to billionaires, worsened congressional paralysis, and transformed many elections into meaningless exercises."

The cases that Levy discusses include, among others, Biden v. Nebraska and Trump v. the United States.

Levy notes that in Biden v. Nebraska, the High Court "blocked (President Joe) Biden's loan forgiveness plan." But she is even more critical of the Trump v. the United States ruling.

"After Trump lost the 2020 election," Levy explains, "he attempted to stay in office by plotting to overturn the will of the voters, culminating in a violent insurrection at the U.S. Capitol. In the summer of 2023, special counsel Jack Smith brought charges against him for his role in the scheme. A trial was scheduled for March 2024, during the Republican primaries. But the Supreme Court was there to help Trump…. Then, on July 1, John Roberts released a stunning opinion."

Levy continues, "He bought Trump's argument — hook, line, and sinker. Former Presidents are now immune from criminal prosecution for anything deemed an official act. Even evidence of a crime is inadmissible if it involved official acts. The Court, with Roberts in the lead, had not only removed a serious impediment to Trump's reelection efforts — but ensured that should Trump return to the White House, he would do so with more power than any president ever before."

*Pema Levy's full article for Mother Jones is available at this link.

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10 24 master class scotus? AFP lawsuit camp finance disclose

overturn 9th?

10 24 master class scotus? CU did not get --> AFP lawsuit camp finance disclosure?

Americans for Prosperity v. Bonta - Ballotpedia

Americans for Prosperity v. Bonta is a case that was argued before the Supreme Court of the United States on April 26, 2021, during the court's October 2020-2021 term. It was consolidated with Thomas More Law Center v. Bonta (formerly Thomas More Law Center v. Becerra).

:{In a 6-3 opinion, the U.S. Supreme Court reversed the U.S. Court of Appeals for the 9th Circuit's ruling and remanded the case for further proceedings, holding that the district court was correct in entering judgment in favor of the petitioners and :{permanently enjoining the California Attorney General from collecting their Schedule B forms}:, and that the Ninth Circuit erred when it vacated those injunctions and directed the entry of judgment for the attorney general.

Chief Justice John Roberts delivered the majority opinion of the court. Justice Clarence Thomas filed a concurring opinion. Justice Samuel Alito filed a concurring opinion, joined by Justice Neil Gorsuch. Justice Sonia Sotomayor filed a dissenting opinion, joined by Justices Stephen Breyer and Elena Kagan.^[1] Click here for more information about the ruling.}:

HIGHLIGHTS

The case: Two conservative advocacy groups, the Thomas More Law Center and Americans for Prosperity, challenged a California policy requirement that tax-exempt §501(c)(3) charitable organizations must disclose the names and addresses of major donors. The groups argued that the policy violated the First Amendment to the U.S. Constitution. On appeal, the U.S. Court of Appeals for the 9th Circuit ruled in favor of the state. Click here to learn more about the cases' background.

The issues: The cases concerned governmental disclosure requirements for charitable organizations' donor lists and the Supreme Court's decision in NAACP v. Alabama.

The questions presented: "Whether the exacting scrutiny this Court has long required of laws that abridge the freedoms of speech and association outside the election context—as called for by NAACP v. Alabama, 357 U.S. 449 (1958), and its progeny—can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations is narrowly tailored to an asserted law-enforcement interest."^[2]

The outcome: The U.S. Supreme Court reversed the U.S. Court of Appeals for the 9th Circuit's ruling and remanded the case for further proceedings.

The case came on a writ of certiorari to the United States Court of Appeals for the 9th Circuit. To review the lower court's opinion in the consolidated cases, click here.^[3]

Timeline...

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The U.S. Supreme Court's immunity ruling in Trump v. the United States in early July has inspired so much debate and discussion that it has overshadowed another controversial Trump-related ruling handed down by the justices five months earlier: Trump v. Anderson.

In Anderson, the High Court struck down a Colorado Supreme Court ruling that excluded Trump from the state's ballot based on Section 3 of the U.S. Constitution's 14th Amendment. Under Section 3, one who has engaged in "insurrection" is ineligible to run for office — and the Colorado justices believed that the January 6, 2021 attack on the U.S. Capitol Building disqualified Trump.

But the Roberts Court disagreed, ruling that Trump couldn't be excluded from the Colorado ballot or any others. And two weeks before the 2024 election, Trump has a good chance of being elected president a second time. Polls are showing a very close, nail-biting race between Trump and Democratic presidential nominee Kamala Harris.

In a biting article published by MSNBC on October 22, legal journalist Jordan Rubin argues that the High Court failed the U.S. miserably in Anderson — and that Trump shouldn't even be on the ballot.

"With former President Donald Trump on the precipice of possibly becoming president again," Rubin laments, "let's recall that he’s on the 2024 ballot thanks partly to the Supreme Court. I'm not talking about the ruling granting him broad criminal immunity, though the Roberts Court's handling of that appeal helped Trump push off a trial in the federal election interference case — possibly forever, if he wins the election and deploys his reacquired presidential power to crush it."

Rubin continues, "I'm talking about another Jan. 6-related appeal from the last Supreme Court term, one that more directly positioned the Republican to take office again: Trump v. Anderson. It was there that the justices reversed the Colorado Supreme Court's decision to keep the former president from the ballot."

Rubin argues that the Roberts Court did the U.S. a huge disservice in Anderson, allowed Trump to stay on the Colorado ballot despite having "engaged in" insurrection on January 6, 2021.

"Look no further than the Trump-backed violence of Jan. 6," Rubin writes. "So, what about the 'plain consequences,' to use the chief justice's concerned phrase, of an oath-breaking insurrectionist potentially running the country again, this time knowing he'd have broad criminal immunity heading into a second term? That consequence apparently was not 'daunting' enough to move this court."

READ MORE:['I'm out of here': Michael Cohen plans to avoid MAGA reprisal by going abroad if Trump wins

*Jordan Rubin's full MSNBC column is available at this link.

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last year, when Donald Trump’s attorneys declared he had “total immunity” from prosecution, many in the legal community scoffed. No president in all of American history had ever proclaimed they could not be convicted for serious violations of law—most infamously, President Richard Nixon had to have been keenly aware he might be criminally prosecuted.

Just eleven days after Nixon resigned the presidency in 1974, TIME reported, “Nixon’s new status as a private citizen puts him in grave peril.”

In fact, TIME continued, “the Watergate grand jury had vigorously wanted to indict Nixon while he was President.”

The American public is aware presidents can be prosecuted for certain crimes, and there is a foundational expectation of that possibility. In February of 2021, after the Democratic House impeached Donald Trump, Senate Republican Minority Leader Mitch McConnell declared the ex-president should face criminal prosecution rather than impeachment.

“Donald Trump’s legal troubles are far from over, despite his acquittal in the U.S. Senate impeachment trial that ended on Saturday,” Reuters reported on February 16, 2021. “Minority Leader Mitch McConnell noted this just moments after voting to acquit Trump, saying the courts are the proper forum for holding the former president accountable for his role in the deadly Jan. 6 attack on the U.S. Capitol by Trump supporters.”

We now know that after Special Counsel Jack Smith asked the U.S. Supreme Court to settle the claim of “presidential immunity” by Trump’s attorneys, it refused, waiting for a lower court to weigh in. Chief Justice John Roberts sent a “scathing critique of [that] lower-court decision and a startling preview of how the high court would later rule,” The New York Times reported last month.

“Behind the scenes, the chief justice molded three momentous Jan. 6 and election cases that helped determine the former president’s fate,” according to The Times’ reporting.

“’I think it likely that we will view the separation of powers analysis differently’ from the appeals court, he wrote,” The Times reported, offering this interpretation for the Chief Justice’s message: “In other words: grant Mr. Trump greater protection from prosecution.”

During oral arguments at the Supreme Court, Trump’s attorney, John Sauer, had literally argued a president could order a coup and be protected by immunity because it was an “official act” of the presidency.

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Sauer also argued a president could order the assassination of a political rival and still have immunity from prosecution.

- YouTub

vid]

Chief Justice Roberts responded to the “momentous trio of Jan. 6-related cases…by deploying his authority to steer rulings that benefited Mr. Trump, according to a New York Times examination that uncovered extensive new information about the court’s decision making.”

In short, the Chief Justice used his powers to intervene and craft an opinion that some experts have said creates new law—certainly nothing that is found in the U.S. Constitution.

“There’s no legal authority for it,” remarked CNN legal analyst Norm Eisen back in December.

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Nor, as the “originalist” far-right justices on the bench have adopted, does Chief Justice Roberts’ ruling lie in the “history and tradition” of the United States.

And yet, despite decades of history starting with Richard Nixon, and despite the scathing dissenting opinion from Justice Sonia Sotomayor, CNN reports on Tuesday, Chief Justice Roberts “was shaken by the adverse public reaction to his decision affording Trump substantial immunity from criminal prosecution. His protestations that the case concerned the presidency, not Trump, held little currency.”

“The Roberts Court has been in sync with the GOP political agenda largely because of decisions the chief justice has authored: For Trump and other Republicans. Against voting rights and racial affirmative action. Against federal regulations over environmental, public health and consumer affairs,” CNN’s Chief Supreme Court Analyst Joan Biskupic reported. “Roberts, joined by his five fellow conservatives, found that the former president was entitled to presumptive, if not absolute, immunity for actions related to his official acts. Roberts’ view of official acts, as opposed to private ones, was vast.”

Justice Sonia Sotomayor’s dissenting opinion on Trump’s immunity blasted Roberts and the far-right justices, famously declaring:

“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President, the Court gives former President Trump all the immunity he asked for and more.”

She also wrote:

“The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military dissenting coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.”

Watch the videos above or at this link.

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2x?

scotus coup

SCOTUS 'staged a coup' and will resemble Russian courts if Trump wins: conservative expert - Alternet.org

carl gibson jun 2024

The Supreme Court of the United States (SCOTUS) has grown far too powerful, and could permanently alter the government established by the framers if current trends continue, according to a conservative legal expert.

On Saturday, Norman Ornstein — who is an emeritus scholar at the Koch-funded American Enterprise Institute — offered a frank and stunning condemnation of SCOTUS in a post to X (formerly Twitter). After a wave of controversial rulings in the final week of its 2023-2024 term, Ornstein opined that the Supreme Court is rapidly transforming into courts seen in authoritarian governments seen in other parts of the world.

"I wonder how long it will take before Americans wake up to the brutal reality that the US Supreme Court has staged a coup, brazenly seizing power from the other two branches in a way that is utterly contrary to the framers vision of the role of a court and a judiciary," he tweeted. "And it is crystal clear that if [former President] Donald Trump wins, the Supreme Court will be much closer to the Russian or Hungarian courts than the one in our constitution."

Ornstein's tweet comes on the heels of a busy week for SCOTUS, with justices siding with a January 6 insurrectionist in his challenge of a criminal charge against him — potentially impacting charges filed against hundreds of other participants in the deadly attack on the U.S. Capitol. The Court also notably overturned 40 years of precedent after officially disposing of a long-respected legal process known as the Chevron Doctrine.

Under that doctrine — which was first established in the 1984 Chevron v. Natural Resources Defense Council case — courts deferred to experts within federal agencies to interpret how federal laws impact the industries those agencies are tasked with regulating. In summing up January’s oral arguments, SCOTUSBlog noted that Justice Ketanji Brown Jackson pointed out that if the Court overturned the Chevron Doctrine, it would mean policy decisions wouldn’t rest with experts working for federal agencies, but with the Court itself. After Friday's ruling overturning that precedent, the federal judiciary now has additional powers to set policy within all federal agencies.

Judges taking the place of experts in deciding how to interpret regulations could prove problematic, as Trump-appointed Justice Neil Gorsuch recently demonstrated in his opinion in a separate decision. Forbes reported that in the *Ohio v. Environmental Protection Agency* case, Gorsuch mistakenly referred to the pollutant nitrogen oxide as "nitrous oxide," which is the laughing gas used by oral hygienists.

Perhaps the most highly anticipated decision of this term is *Trump v. United States*, in which the former president is arguing that he has absolute broad criminal immunity for all official acts carried out as president. His D.C. election interference trial has been on hold while SCOTUS considered his argument, which was already rejected by the U.S. District Court for the District of Columbia and by a D.C. Circuit Court of Appeals panel. Despite flags seen flying outside two of conservative Justice Samuel Alito's homes that were carried by insurrectionists, the justice refused calls to recuse, and Chief Justice John Roberts declined to meet with two members of the Senate Judiciary Committee to discuss the incidents.

Ornstein isn't alone in his view of the Roberts Court becoming an increasingly partisan institution. Earlier this week, Newsweek reported that multiple federal judges appointed by both Democratic and Republican presidents are casting doubt on the Court's ability to rule on cases in an objective manner.

David S. Tatel, who was appointed by former President Bill Clinton to the D.C. Circuit, wrote in his memoir that his "low regard" for SCOTUS prompted him to retire from the bench.

"My views, I think, are widely shared throughout the judicial system," Tatel said. "Obviously, there are people who don't agree with them, but there are, I can assure you, a large number of judges who will not find anything I've said in this book surprising."

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AN 9 24

alternet NO LNX

From moderate to manipulator: Behind the unmasking of John Roberts

WASHINGTON — John Roberts may have a robe. Still, the Chief Justice of the Supreme Court has no clothes, according to Democrats who are outraged to bewildered by new reporting that paints the nation’s most potent jurist as a masterful MAGA manipulator.

Congressional Democrats are accusing Roberts of bending, twisting and contorting the Supreme Court — along with the Constitution he swore an oath to — to fit former President Donald Trump and the allegedly illegal actions he took that have kept him tied up in state and federal courts alike since he left the White House four years ago.

New illustrious, behind-the-scenes reporting from the New York Times reveals Roberts personally directed the court’s three historic Jan. 6, 2021 rulings, including the one granting presidents sweeping immunity from criminal prosecution for their “official acts.”

Democrats are now redoubling their efforts to make the high court a centerpiece of this year’s elections as they continue their uphill battle to pass meaningful ethics reforms to try and rein the high court in.

“Chief Justice Roberts exudes much more of an establishment aura about him, but he really has been a crucial force behind the degradation of constitutional jurisprudence on the Supreme Court,” Rep, Jamie Raskin (D-MD) — a Constitutional lawyer and law professor by trade — told Raw Story after digesting the illuminating new reporting.

According to the scoop-strewn NYT piece by Jodi Kantor and Adam Liptak, Roberts authored a Feb. 22 memo to his eight colleagues “that radiated frustration and certainty” regarding the monumental cases winding through lower courts centered on efforts to overturn the 2020 election.

While revelatory, sadly, the new reporting on the Roberts Court isn’t surprising to Raskin.

ALSO READ: The simple yet powerful way Tim Walz just exposed Donald Trump

“It's what anybody can see in reading their decisions. We know what's going on there. They're not textualists — they completely ignored the text of Section 3 of the 14th Amendment,” Raskin said. “They're not originalists — nobody even made an originalist argument about why the president of the United States should be immune from criminal prosecution for felonies he commits under the cloak of office. And, you know, they have really drifted a long way from any recognizable constitutional jurisprudence of interpretation.”

The carefully manicured image of Roberts as a moderate is now melting away. It’s left Democrats on Capitol Hill debating how to restore public confidence in a Supreme Court many in the party and the public have lost faith in.

“Very short-term thinking”

It’s more than just Chief Justice Roberts moving in the shadows to orchestrate this year’s three seemingly pro-Trump Jan. 6 rulings. Accusations of corruption are also in the air.

Coupled with the estimated $4.2 million in gifts Justice Clarence Thomas reportedly openly accepted from Republican megadonors over the years, as first reported by ProPublica, many Democrats now fear this Supreme Court has been weaponized by the far-right.

“His court's going to go down as the most corrupt in history and, honestly, the most political in history, too,” Rep. Don Beyer (D-VA) — a former U.S. ambassador to Switzerland and Liechtenstein — told Raw Story on the Capitol steps this week.

Then there’s the luxurious all-expense paid fishing trip Justice Samuel Alito accepted from billionaire Paul Singer, which he publicly defended in the op-ed pages of The Wall Street Journal.

Not to mention the politicking. There’s the upside-down American flag that proudly flew outside the Alito’s Northern Virginia home in the wake of the 2021 attack on the Capitol and the “Appeal to Heaven” flag flapping in the ocean breeze outside the Alito’s New Jersey beach house, both of which the justice blames on his wife, Martha-Ann.

As for Thomas, he refused to recuse himself from the monumental J6 cases even after his wife Ginni — and the string of conspiratorial text messages she sent to then-White House Chief of Staff Mark Meadows — was found to be central to Trump’s efforts to overturn the last presidential election.

“It might not be illegal, but it certainly should scare the hell out of every American that somebody with that kind of access and power and proximity to a Supreme Court justice can be pushing that type of nonsense," former Rep. Denver Riggleman (R-VA) — who served as a technical advisor to the select Jan. 6 committee — told Raw Story back in 2022. “The text messages validate that many elected officials believed it.”

Critics are left questioning where the high court ends and the RNC begins.

“I'm naive. I was raised to think that the justices were there to look at the Constitution and the law and work together to find the best decision for the American people. Now they're a function of the Republican Party, which the court never was before,” Don Beyer said. “Very short-term thinking. If we look at our 40-some-odd presidents, only one would it apply to.”

The five-term congressman says Supreme Court justices — especially the chief justice — need to open their eyes because, to him and an expanding chorus of critics, there’s nothing partisan about Democrat’s fears.

“There's no other Republican president I would have worried about,” Beyer said. “Not George Herbert Walker Bush or Ronald Reagan or Gerald Ford — certainly none of our Democratic presidents — but this one. It isn't like he's conferring an advantage on the next Democratic president who will do whatever he wants — no.”

The nakedly political and grossly unethical turn of the Roberts Court weighs on the 74-year-old.

“Incredibly discouraging. I've been discouraged by Justice Roberts for a long time,” Beyer said. “I know the judiciary’s independent — I don't ever want to interfere — but the fact that he could let the ethical abuses go on and on, no treatment whatsoever, which is, I mean, the greatest discouragement.”

Last year, after months of punishing press coverage, Roberts reversed himself and signed off on a new, if unenforced, Supreme Court Code of Conduct. It was unanimous.

These days, the signatures of all nine Supreme Court justices also make the document almost worthless, at least to many lawmakers across the street at the Capitol.

Citizens United v. Federal Election Commission

Throughout this session of Congress, Democrats on the Judiciary Committee in the Senate have relentlessly tried to impose mandatory and enforceable ethics rules on Supreme Court justices—basically, the same ones that apply to every other federal judge in the nation. Republicans have been united in blocking every such effort.

Senate Republicans have the back of the conservative majority on the Roberts Court, much like Roberts has advanced the agenda of congressional Republicans.

“If you go back and look at the most anti-democratic decisions of the Supreme Court — the immunity decision being one, but the little array of insurrection decisions, of which it was a part of in the threesome that's in this article — you see a lot of backstage maneuvering by the chief justice,” Sen. Sheldon Whitehouse (D-RI) told Raw Story as he walked through the basement of the Capitol. “It reminds me of the backstage maneuvering by the chief justice that brought us Citizens United.”

The former Rhode Island attorney general and U.S. attorney is the second highest ranking Democrat on the Senate Judiciary Committee where he’s been pushing the SCERT — or Supreme Court Ethics, Recusal and Transparency — Act, which would place a binding code of conduct and mandatory disclosure requirements on the justices.

Ethics reform is one thing. Unlimited corporate funding is another corrosive element of contemporary American politics altogether.

Democrats are still smarting from Citizens United and the floodgates of political spending it unleashed. The chief justice also deftly moved behind the scenes to manipulate that 2010 ruling, Whitehouse readily recalls.

“Remember, [Roberts] had to restructure the case. He changed the question presented. He set up the case so that there would be no record — actual record,” Whitehouse recalled. “He changed the standard.”

That was a bipartisan complaint in that Senate of a bygone, if recent, era. The ruling led then-Sen. John McCain (R-AZ) — who co-authored the McCain-Feingold law that Citizens United decimated — to publicly and personally call out Chief Justice Roberts.

"I am more disappointed in him than any of the other four that voted to overturn McCain-Feingold," McCain said back in 2012.

Republicans beg to differ

Roberts indeed has allies. Lots of them. Powerful ones. And they’re laughing in Democrat’s faces.

Republican Party leaders, like former Senate Whip John Cornyn (R-TX) — who’s running to replace Senate Minority Leader Mitch McConnell — basically just avoid critics and critical reporting, like the New York Times just dropped, these days.

“I think I saw the headline — that's about all,” Cornyn told Raw Story while hopping a tram under the Capitol.

Before arriving in Washington in 2002, Cornyn served on the Texas Supreme Court. He says Roberts shouldn’t even entertain what his senatorial critics have to say.

“He's got lifetime tenure,” Cornyn said through a laugh. “I wouldn't be taking advice from members of Congress on how to do my job if I was him, either.”

Just as they have with Justices Thomas and Alito — no matter the latest eye-popping revelation — today’s Republicans have united around the Chief Justice, as if they are one.

“Even without having read it, I think extremely highly of him and believe him to be a person with the utmost integrity and dedicated to the independence of the courts,” Sen. Susan Collins (R-ME) told Raw Story as she walked through the Capitol Wednesday.

Collins must not have gotten the memo from her Democratic colleagues.

The ‘court packing’ myth

Many pundits hailed Roberts for opposing the overturning of Roe v. Wade, but in the Dobbs decision, he lost out to the five Republican appointees on ‘his’ court who are seemingly even further right than he is.

Many progressives weren’t buying the righteous, caring and politically aloof version of himself Roberts portrayed back then, and they say this latest reporting shows they were right.

“That's interesting how there's sort of this story out there that Roberts was like a moderate and mediator. And the [NYT] story would suggest that’s not really necessarily the case,” Sen. Tina Smith (D-MN) told Raw Story after voting on the Senate floor this week.

While Republican rhetoric paints all elected Democrats — from the top of the party’s presidential ticket on down — as wanting to expand, or ‘pack,’ the court, only three Senate Democrats have formally endorsed a progressive measure to expand the size of the court, as Raw Story reported last month.

Smith and Massachusetts Democratic Sens. Ed Markey and Elizabeth Warren are the three who’ve publicly endorsed Markey’s measure to expand the size of the Supreme Court. That’s it.

Even with all the negative press, Smith says other Senate Democrats haven’t approached them about their measure to expand the size of the court.

“I haven't heard any,” Smith said.

That doesn’t mean her colleagues aren’t discussing the Roberts Court.

“There's a lot of conversation about the court and challenges to the court,” Smith said. “Once we get through this election and we have a better understanding of what the landscape is, we'll talk more about it.”

Or maybe they won’t.

“We're not going to get expansion”

Some Democrats have already basically, shut the door on the conversation of expanding the court. Many just don’t see it as a practical solution.

“We're not going to get expansion,” Sen. Peter Welch (D-VT) told Raw Story on his way to a vote in the Capitol Wednesday. “There's a lot of downside to expansion — we expand, they expand — and it politicizes it.”

As President Joe Biden proposed back in July, Welch and most congressional Democrats now support instituting an 18-year term limit for the nation’s justices.

“First of all, that's a very substantial term, and they're inside, so they have the benefit of protections,” Welch argued. “And then number two, every president is going to have an opportunity to appoint two members, so that means the American people get to weigh in indirectly by choosing the president. I think it would really take the extreme politics out of the court.”

As for Roberts, Welch is no fan of the jurist he’s predicting historians will frown upon.

“He’s very skillful and, unfortunately, a driving force, I think, in the radical redirection of the court,” Welch bemoaned to Raw Story. “The court has got an extreme radical majority. It's lost public respect.”

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an 9 24

Why John Roberts’ image as a 'moderate centrist' is total 'hogwash': analysis

Alex Henderson

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an 9 24

Progressive legal expert Elie Mystal, in his blistering condemnation of the U.S. Supreme Court's controversial 6-3 immunity ruling in Trump v. the United States, has made a major distinction between "qualified immunity" and "absolute immunity."

The High Court's decision, Mystal has argued, is dangerous to the rule of law in the U.S. because it grants Trump and future presidents "absolutely immunity" — not merely "qualified immunity" — from criminal prosecution for "official" acts committed as part of their "core" duties.

Even some frequent critics of the Roberts Court were shocked by how far the six GOP-appointed justices went in that ruling. But a memo leaked to the New York Times shows that Chief Justice John Roberts encouraged this outcome.

Salon's Nicholas Liu explains, "John Roberts, the chief justice of the Supreme Court, on February 22, issued a memo to his colleagues urging them not only to take up an appeal from former President Donald Trump over his immunity claim, but also, to rule in favor of granting him that immunity…. The document, along with other justices' memos, accounts of the proceedings and testimony from sources the Times interviewed, offers a window into Roberts' high level of involvement in several cases that benefited Trump and ultimately helped him climb out of a mire of legal troubles that threatened to upend his 2024 presidential campaign."

According to Times reporters Jodi Kantor and Adam Liptak, the February 22 memo that Roberts sent to the eight other justices "radiated frustration and certainty."

Liu notes that the memo is relevant not only to Trump v. the United States, but also, to the High Court's 14th Amendment-related case decision involving the former president.

"Roberts exerted his influence in March this year, when he persuaded the other judges to rule that states could not unilaterally kick federal candidates from a ballot," Liu observes. "While the judges agreed unanimously on the matter, the Court's liberals dissented to an additional proposition that anyone seeking to enforce the Constitution's 14th Amendment against insurrectionist candidates running for office would need to first obtain congressional approval."

READ MORE:[Pro-Trump natural gas CEO warns ex-president’s 'drill, baby, drill' slogan is 'not the answer'

Roberts' memo, according to Kantor and Liptak, vehemently disagreed with a lower federal court ruling that tore apart Trump's presidential immunity claims.

The Times journalists report, "The chief justice’s February 22 memo, jump-starting the justices’ formal discussion on whether to hear the case, offered a scathing critique of a lower-court decision and a startling preview of how the high court would later rule, according to several people from the court who saw the document. The chief justice tore into the appellate court opinion greenlighting Mr. Trump’s trial, calling it inadequate and poorly reasoned."

READ MORE:['He was ill-prepared': Karl Rove rips debate prep team after Harris successfully 'baits' Trump

*Read the New York Times' full report at this link (subscription required) and Salon's analysis here.

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“Disdains democracy': Chief justice’s role in Trump immunity sparks outrage from legal experts](https://www.alternet.org/scotus-trump/) an 7 24

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an 7 24

chief Justice John Roberts and his right-wing colleagues on the Supreme Court are projecting their own insecurities and "hurt feelings" onto women who are calling out their flawed and dangerous rulings, wrote Dahlia Lithwick in a scorching analysis for Slate.

This comes after Roberts concluded the court's term with a ruling that gives former President Donald Trump a presumption of absolute immunity for "official acts," without clearly defining what those acts are.

And, in his majority opinion, he put down Justice Sonia Sotomayor's furious dissent as sounding "a tone of chilling doom" — a dismissal many described as condescending.

That was reinforced when former Trump White House attorney Ty Cobb dismissed the dissent on CNN as “a little hysterical, and it really offered no analysis. A lot of screaming, no analysis.”

"Screaming. Insubstantial. Hysterical," wrote Lithwick. "What men call banshees, women call prophecy. And of course if there are any sitting justices on the Roberts court whose entire jurisprudence can be reduced to a soggy skein of hurt feelings and self-pity, they are not females."

On the contrary, she wrote, Sotomayor's dissent, "Added interpolations that were not in her printed text and all but castigated her conservative colleagues. This is what frustration embodied looks like. And the failure to take that respectfully or even seriously? That is a play as old as the hills."

It's hard to swallow this criticism, wrote Lithwick, given that warnings that Roe v. Wade would be overturned were similarly dismissed as “hysterical” including by senators who voted to confirm Trump's Supreme Court Justices, like Sen. Ben Sasse (R-NE).

Furthermore, the warnings that Trump will be emboldened by this ruling to defy the law and extrajudicially target opponents with the expectation he'll be immune from prosecution for it is completely founded, she noted — as Trump is already posting about the idea of a "televised military tribunal" for former Rep. Liz Cheney (R-WY), who voted to impeach him and investigated him over January 6.

"This isn’t hypothetical. This isn’t fearmongering. This is how Trump lives and will continue to live. It is how he governs and how he will continue to govern," Lithwick concluded — and people in power should stop laughing off women whenever they voice real fears about their rights and prospects.

"It’s almost as if the conservative justices’ commitment to originalism requires them to believe that women who raise any objection to their tidy paradigms should be viewed as either empty vessels or scheming witches. It’s almost as if they wish to lay down the tracks for just such a project. It’s almost as if in granting Donald Trump immunity, they may have found their path there."

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bush v gore democ labs

Supreme Court has three lawyers who worked on Bush v. Gore

Justices Clarence Thomas voted to suspend the vote count in Florida that ended up with George Bush Jr. as president. Three other justices worked on the Bush team including John Roberts, Brett Kavanaugh and Amy Comey Barrett. All three were later appointed to the Supreme Court! Roberts was appointed by Bush

John Roberts’ conservative SCOTUS majority 'rigging the docket' against voting rights: analysis

Chief Justice John Roberts / US Supreme Court

Carl Gibson

November 10, 2023

Supreme Court Chief Justice John Roberts is selectively accepting cases to the Court's docket in a long-term project to weaken democracy, according to a recent analysis.

In an essay published recently by Slate, legal activist Sarah Lipton-Lubet argued that the Roberts Court is marching down a path that leads to the overall erosion of voting rights in selecting the cases it chooses to hear in a given term. Lipton-Lubet tracked the number of cases the Court has heard concerning "core democracy issues" like gerrymandering, redistricting, voting rights enforcement, and campaign finance since the Roberts Court's 2013 Shelby County v. Holder decision that gutted portions of the Voting Rights Act pertaining to racial discrimination.

She found that out of 32 such cases, the Roberts Court agreed to hear 26 in which it had an opportunity to overturn a lower court ruling in favor of democracy, and only six in which it could potentially overturn an anti-democracy ruling (the Supreme Court can decide to hear a case if four of nine justices agree to issue a *writ of certiorari*).

"It’s not quite 'Heads I win, tails democracy loses,' but it’s pretty damn close," Lipton-Lubet wrote.

One of those six anti-democracy rulings was Allen v. Milligan, in which the Court ultimately ruled that Congressional redistricting maps that disenfranchised Black voters in Alabama were unconstitutional. Both Roberts and Associate Justice Brett Kavanaugh agreed with the Court's three liberal justices that Alabama's legislature needed to redraw at least two of its seven Congressional districts to allow greater representation by Black voters, who make up 26% of the state's voting population.

However, Lipton-Lubet argued this decision was an anomaly amid the Roberts Court's larger pattern of weakening democracy over time. She pointed to both the Court's decision to stay the lower court ruling in Allen while it heard the case, allowing the illegal maps to remain in place for the 2022 midterms, which may have been the deciding factor that helped Republicans retake the House of Representatives with a razor-thin majority last year. She also pointed to the Court's 5-4 ruling in the Rucho v. Common Cause case in 2019, in which the conservative majority agreed that matters of partisan gerrymandering were not in the jurisdiction of federal courts. This paved the way for Republican-controlled legislatures like North Carolina's to aggressively gerrymander maps that would virtually guarantee impenetrable Republican majorities for the foreseeable future.

"Roberts and Kavanaugh are shrewd political operatives who have dedicated decades of their personal and professional lives to electing Republicans," Lipton-Lubet wrote. "They are not afraid to play the long game. Unlike some of their less patient colleagues, they recognize the power of cloaking their anti-democratic project in a veneer of moderation."

"By rigging the docket, Roberts and Kavanaugh can have their cake and eat it too," she added.

Read Lipton-Lubet's full essay by clicking here.

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Legal expert slams the 'disdain for the American people' John Roberts showed in year-end report - Alternet.org

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an 10 23

as the the United States Supreme Court faces an "ethical crisis" following ProPublica's report earlier this year exposing Justice Clarence Thomas' history of receiving lavish gifts from billionaires, Senate Judiciary Committee Democrats, according to a CNN report, announced Monday they will soon vote to authorize subpoenas in their ongoing probe of the court.

Per CNN, this comes as "four justices – Chief Justice John Roberts and Justices Brett Kavanaugh, Elena Kagan and Amy Coney Barrett" over the last few months "have expressed various forms of support for some kind of ethics reform at the high court, although no announcement has been made."

Chair Dick Durbin (D-IL) said, "The Supreme Court is in an ethical crisis of its own making," CNN notes, adding that the "subpoenas would target Harlan Crow, Leonard Leo and Robin Arkley II, who have all been linked to Thomas and others in recent news stories."

The news outlet reports the Democratic senator added "that the three had declined to fully engage with the committee on a voluntary basis during its inquiry," saying "Due to Crow, Leo and Arkley's intransigence, the Committee is now forced to seek compulsory process to obtain the information they hold."

CNN notes:

*The latest allegation against Thomas occurred last week after The New York Times reported that he failed to repay a 'significant' portion of a $267,230 loan from a friend that allowed him to by a luxury motorcoach in 1999, according to a memo issued by Democrats on the Senate Finance Committee. Hours after the report appeared, a lawyer for Thomas disputed the findings arguing that the loan had never been forgiven. 'The Thomases made all payments,' the lawyer, Elliot S. Berke, said in a statement to CNN.

A Democratic aide told the news outlet the committee "is likely to vote on the subpoenas on November 9."

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no lnx 8 23

An entire branch of government is sinking into an irredeemable Trump-fueled muck of corruption

Thom Hartmann August 20, 2023

So now, as expected after decades of taking big bucks for her right-wing work on behalf of America's oligarchs, we learn that the wife of Supreme Court Associate Justice Clarence Thomas, Ginny Thomas, was in Trump's January 6th "rally" up to her eyeballs.

Let's just say it right out loud: the US Supreme Court is corrupt. And Americans know it.

No other federal court in the nation would allow a defendant in a case before them to fly a judge on a private Gulfstream luxury jet to a luxury hunting retreat in Louisiana and then, a week later, watch as that judge rules in that defendant's favor.

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But Supreme Court Justice Antonin Scalia did exactly that when Dick Cheney was sued for allegedly lying about his secret "energy group" that was planning the seizure and sale of Iraq's oil fields as he and Bush lied us into the war that opened those oil fields up to exploitation.

No other federal court would allow a judge to give a speech before a group that was funding a case before them and then rule in favor of that group's openly stated goal, but that's exactly what Neal Gorsuch did when he addressed the Fund for American Studies, itself funded by the Bradley Foundation that was helping fund the Janus v AFSCME case that gutted union protections for government workers.

No other federal court would allow a judge to swear revenge against a particular nonprofit corporation (in this case the Democratic Party), saying in his confirmation hearings that, "What goes around comes around," and then rule in cases directly affecting that organization (like voting rights) butBrett "Beerbong" Kavanaughdid just that.

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No other federal court would allow a judge to rule on a case where he owned a half-million dollars worth of stock in the company presenting amicus arguments before the court—it's illegal in many states—but John Roberts did just that in the ABC v Aereo case. As did Roberts, Bryer and Alito in 25 of 37 other cases where they owned stock, according to the good-government group Fix The Court.

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No other federal court would allow a judge's wife to openly interact with and advocate for the interests of dozens of litigants before the court over decades, and take nearly a million dollars from a group regularly helping bring cases before his court but Clarence Thomas and his wife have done both, as recently revealed in a shocking New York Times profile.

And now the Court is gutting the EPA—the agency Justice Gorsuch's mother infamously ran into the ground before resigning in disgrace during the Reagan administration—using Gorsuch's own BS "textualist" rationale to go after the agency today.

In addition, these Republican appointees are openly shooting down Democratic efforts to fight gerrymanderedmaps while supporting GOP efforts to impose them on states.

Is there no way, to paraphrase Shakespeare, to rid ourselves of this Court's corrupt behavior? Turns out, Congress has that power—although they haven't used it since Ulysses Grant was president and reorganized the Court.

Article III of the Constitution establishes the federal court system, and gives to Congress itself the power to create the lower federal courts. It also says that Supreme Court judges may only serve on the court if they behave themselves:

The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour….

It also requires Congress to regulate the Supreme Court. Article III, Section 2 says:

[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 issue of the Supreme Court needing regulation from the "first among equals" legislative branch (Congress), as specified by the Founders and Framers of the Constitution, has been with us for 101 years.

Most people remember William Howard Taft as the one-term progressive Republican president who followed Teddy Roosevelt into the White House in 1909 and was beaten for re-election by Woodrow Wilson in 1912.

But after his retirement from the presidency, Taft became the first former president to serve as Chief Justice of the US Supreme Court in 1921. He was our 27th president and 10th Chief Justice.

In 1921, it came to the attention of the nation and to Chief Justice Taft that US District Judge Kenesaw Landis was taking five times his annual salary as a judge from what was then called "Organized Baseball"—five years after ruling in their favor.

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The scandal provoked Congress to pass, in 1922, a law creating a body that would provide advice and oversight to the federal judiciary. It came to be known as the Judicial Conference of the United States.

The scandal also prompted Chief Justice Taft to accept the unpaid chairmanship of The American Bar Association's (ABA) newly formed commission to write ethics rules for federal judges.

Taft's commission wrote, in 1923, the first Canons of Judicial Ethics, which included 34 categories of judicial conflicts and misbehavior that would either disqualify a judge or require their recusal from cases before them. They included conflicts of interest, personal financial investments, and even behavior in the courtroom itself.

Taft, in delivering the Canons, made it clear they should apply to all federal courts, including his own Supreme Court. Within a decade, every state in the union had adopted the Canons for their own courts.

The Canons, however, had no enforcement mechanism,particularly when it came to the Supreme Court. After all, who would judge the highest court in the land? That opened the door for literally a century of the Supreme Court ignoring Taft's work.

The issue came to the fore again in 1969 when Republicans went nuts when it was revealed that Justice Abe Fortas—a very liberal (Republicans called him a communist) LBJ appointee—had taken $15,000 for a summer teaching post, was receiving time-delayed payments from a law former client, and, worse of all, was secretly advising President Johnson.

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Under massive incoming fire from Republicans and their friendly media, Fortas resigned from the Supreme Court on May 14, 1969. Over the next three years, the ABA put together a new commission to update Taft's original Canon on judicial ethics.

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That commission released their new Code of Judicial Conduct in 1972, and it was adopted by the Judicial Conference of the United States, in 1973. The Supreme Court, however, chose to ignore it, arguing that they were above such considerations.

By that time the Supreme Court had made itself, as I lay out in detail in The Hidden History of the Supreme Court and the Betrayal of America, the most powerful of the three branches of government, asserting the power to second-guess both Congress and the President.

Ironically, in his 2011 annual report about the state of the judiciary, Chief Justice John Roberts made lengthy and effusive reference to former Chief Justice Taft and his work with the ABA's commission on judicial ethics. His report, however, conveniently omitted the fact that Taft had loudly and publicly asserted it should apply to the Supreme Court.

Instead, Roberts noted rhetorically, "Some observers have recently questioned whether the Judicial Conference's Code of Conduct for United States Judges should apply to the Supreme Court."

I'll spare you extended quotes from Roberts' report, which you can read here, but the bottom line is that in his opinion the Court can tell the 1923 ethics recommendations, and the subsequent ones from 1973, to go screw themselves. The Supreme Court, in his mind, is answerable to nobody but itself.

As Sam Alito said, "I'm not aware of problems on the Supreme Court itself…we would not sit back. We would take action that's appropriate."

Back when Roberts was a young lawyer working for Reagan and trying to come up with a way to overturn Brown v Board and Roe v Wade, he was fond of quoting Article III, Section 2 of the Constitution.

This gave Congress the power, Roberts wrote, to simply overturn both Brown and Roe by passing a law creating an "exception" that the Supreme Court couldn't rule on issues of race or abortion (his lengthy writings for Reagan are in my book on the Court).

But now that he, himself, is in charge of the Court there's nary a peep from Roberts—in his 2011 Report or anywhere else—about Congress' power to regulate the Court.

In recent years multiple laws have been proposed to pick up the slack Roberts left to his fellow justices. Louise Slaughter proposed legislation in the house in 2015 that would require the Court itself to come up with its own code of ethics.

It went nowhere, and, besides, it would violate the basic premise of law dating back to Publius Syrus in 50 BC, cited by John Locke in the 17th century, and finally quoted by Madison in Federalist 10 that "no man shall be the judge in his own case."

President Biden's commission on the Courts recently recommended that the Supreme Court adopt an "advisory" code of behavior, but Roberts didn't even bother to comment.

Most recently, Senator Chris Murphy introduced the Supreme Court Ethics Act that would seek to regulate the Court's out-of-control politicking and conflicts of interest. Predictably, it was blocked by Republicans in the Senate.

Public outrage is building: the Court's approval rating is now around 40 percent, a historic low. Congress needs to act, requiring them to adopt and conform to the federal code of judicial ethics at the very least, and expand the Court at best, before an entire branch of government sinks into an irredeemable partisan muck of corruption.

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How the 'dogmatic' Roberts Court fulfilled a 'robust conservative wish list': journalist

Alex Henderson July 11, 2023

For decades, the Religious Right and far-right white evangelicals angrily railed against all the conservative GOP-appointed U.S. Supreme Court justices they regarded as bitter disappointments — a list that ranges from Ronald Reagan appointees Anthony Kennedy and Sandra Day O'Connor to Chief Justice Warren Burger, appointed by Richard Nixon after Chief Justice Earl Warren's 1969 retirement.

Kennedy was a right-wing libertarian, but liberals and progressives were pleasantly surprised by his rulings on abortion and gay rights. And Warren was a Republican who was nominated by President Dwight D. Eisenhower and had been GOP New York Gov. Thomas E. Dewey's running mate in the 1948 presidential election (the Dewey/Warren ticket lost to incumbent Democratic President Harry Truman by 4 percent).

But in 2023, the Religious Right finally has a Supreme Court full of radical-right ideologues. And journalist Linda Greenhouse, in an op-ed/essay published by the New York Times on July 9, offers some reasons why the Roberts Court's 2022 and 2023 rulings have faithfully carried out a "robust conservative wish list."

READ MORE: Supreme Court preserves college preferences for wealthy whites

When President George W. Bush nominated Chief Justice John Roberts in 2005, Greenhouse notes, that "wish list" included "overturn Roe v. Wade, reinterpret the 2nd Amendment to make private gun ownership a constitutional right, eliminate race-based affirmative action in university admissions, elevate the place of religion across the legal landscape" and "curb the regulatory power of federal agencies."

"These goals were hardly new," Greenhouse explains, "but to conservatives' bewilderment and frustration, the Court under the previous chief justice, the undeniably conservative William Rehnquist, failed to accomplish a single one of them. In fact, to any conservative longing for change, the situation in 2005 must have appeared grim indeed. Not only had the Rehnquist Court reaffirmed the right to abortion in the 1992 Casey decision — in 2000, it overturned a state ban on so-called partial-birth abortion, a law aimed at enlisting the Court in a graphic anti-abortion narrative."

:{:{}:

Greenhouse emphasizes that although civil libertarians have been applauding the High Court's Moore v. Harper ruling, that doesn't erase the fact that so much of the "wish list" has been fulfilled.

:{:{}:

In Moore v. Harper, MAGA Republicans argued in favor of a far-right legal idea known as the independent state legislature (ISL) theory — which, in its most extreme form, claims that only state legislatures have a right to determine a state's election laws. The ISL totally excludes a state's executive and judicial branches from the process.

READ MORE: Biden explains calling Supreme Court 'not normal' but warns not to 'politicize it'

But in the 6-3 Moore ruling, three Republican-appointed justices — Roberts, Amy Coney Barrett and Brett Kavanaugh — joined Democratic appointees Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson in shooting the ISL to pieces.

Conservative Roberts was scathing in his critique of the ISL, attacking it as fundamentally flawed. The GOP dissenters were Clarence Thomas, Samuel Alito and Donald Trump appointee Neil Gorsuch.

:{:{}:

"In refusing to weaken the Voting Rights Act any further," Greenhouse argues, "did the Court show itself to be a bit less dogmatically conservative than the year before? Did the 6-to-3 rejection of a dangerous theory that would have stripped state courts of the authority to review election laws show that the justices could still build bridges across their ideological divide? Yes, democracy survived, and that's a good thing. But to settle on that theme is to miss the point of a term that was, in many respects, the capstone of the 18-year tenure of Chief Justice John Roberts."

READ MORE: AOC demands congressional 'subpoenas' and 'investigations' into alleged Supreme Court corruption

Linda Greenhouse's full New York Times op-ed/essay is available at this link (subscription required).

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an raw 6 23

chief Justice John Roberts reportedly surprised everyone and went against his own personal mission when he authored a ruling finding that Alabama likely violated the Voting Rights Act's prohibition on racial gerrymandering by packing most of the state's Black voters into a single congressional district.

The ruling, which was joined by all three liberal members of the court along with a partial agreement from the conservative Justice Brett Kavanaugh, was a surprise to legal observers, who had expected the country's top court to weaken the Voting Rights Act protections and find Alabama's map satisfactory.

That was the expectation in part because of Roberts' "40-year battle to whittle down racial equality protections enshrined in the crowning glory of the civil rights movement," according to a report from The Guardian's Ed Pilkington on Saturday.

"The chief justice’s decision to cling closely to precedent and avoid a sweeping reframing of voting rights law took supreme court observers by surprise," Pilkington wrote. “'Speechless!' was how Robyn Sanders, an elections lawyer with the Brennan Center for Justice, described her reaction. 'An amazing victory for voting rights, Black voters, and the Voting Rights Act.'"

The report continues:

"The chief justice has demonstrated a consistent desire to dilute or destroy elements of the landmark Voting Rights Act of 1965, and in so doing has opened the floodgates to a torrent of voter suppression measures from Republican states that continues today. This time, though, Roberts reined himself in."

Roberts was able to do so by focusing on the Court's precedent, as opposed to trying to rewrite the law, Pilkington added. And his intentions are reportedly more about the long game.

"A key to understanding Roberts’s intentions is that he plays the long game," the article states. "He likes to present himself as a bridge-builder who represents the moderate center of American jurisprudence. He is also highly sensitive to the slump in public trust in the supreme court that has followed embarrassing revelations about Clarence Thomas’s luxury holidays paid for by a Texan billionaire."

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it’s being called a “surprise decision,” a “landmark win,” and a “a major victory for the Voting Rights Act (VRA),” but some legal experts are warning that heralding the U.S. Supreme Court’s Thursday decision as anything except upholding the status quo is a mistake, and other experts suggest it means the Court’s earlier rulings wrongly threw control of the House of Representatives to Republicans. Some experts say a Democratic-majority House in 2024 is now more likely.

In short, in its 5-4 decision in Allen v. Milligan, the Supreme Court ruled that the state of Alabama discriminated against Black voters, which make up a quarter of its population, by drawing congressional maps to exclude them.

Slate’s Mark Joseph Stern, who writes about law and the courts, exclaimed, “WHOA!” as he explained: “The Supreme Court’s final decision of the day is a 5–4 ruling that AFFIRMS the Voting Rights Act’s protection against racial vote dilution! Roberts and Kavanaugh join the liberals. This is a HUGE surprise and a major voting rights victory.”

Democracy Docket, the website founded by Marc Elias, the voting rights attorney who won 63 of the 64 court cases Donald Trump and his allies filed to contest the 2020 presidential election, also served up a similar response on social media, calling it “a massive victory for voting rights.”

On its website, Democracy Docket calls it “an overwhelming win for Alabamians, specifically Black voters, whose voting power was found to be diluted under the current congressional map. Importantly, the conservative Supreme Court did not make the drastic decision to strike down Section 2 of the VRA, leaving an important tool in voting rights litigation in place.”

It adds the Supreme Court’s decision in Allen v. Milligan “leaves Section 2 of the Voting Rights Act (VRA) intact and, in a landmark win for voters, struck down the state’s congressional map. The majority opinion, written by Chief Justice John Roberts, is joined by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson and joined in part by Justice Brett Kavanaugh.”

Democracy Docket also notes the decision “will have major positive implications for outstanding redistricting lawsuits.”

Stern agrees, writing: “It’s a boon to Democrats’ chances of retaking the House in 2024. The Supreme Court had blocked multiple lower court rulings striking down congressional maps that diluted Black voting power. At least some of those rulings should now be implemented.”

Democracy Docket adds: “The Court’s decision in Allen likely means that litigation challenging Louisiana’s congressional map can move forward and paves the way for a favorable outcome for Louisiana voters. Louisiana’s situation directly mirrors Alabama’s. In both states, voting rights advocates argued that a second majority-Black congressional district is needed to ensure compliance with the VRA. The Supreme Court paused Louisiana’s litigation pending a decision in Allen.”

Dave Wasserman, U.S. House editor of the nonpartisan Cook Political Report calls the decision “a major surprise,” and says: “This could reverberate to LA, SC and/or GA, forcing creation of 2-4 new Black majority districts and netting Dems 2-4 seats” in the House.

Wasserman, known for his keen knowledge of congressional districts and iconic “I’ve seen enough” early and accurate predictions of House election races, offered this view of how the Court’s decision could impact current districts:

“The Alabama Republicans in most jeopardy owing to the SCOTUS ruling: Reps. Jerry Carl (R) #AL01, Barry Moore (R) #AL02 and Mike Rogers (R) #AL03. Moore could be squeezed the most in any map reconfigured to feature a second Black majority seat.”

University of Texas law professor Steve Vladeck, author of a book on the Supreme Court, “The Shadow Docket,” offers up a stinging reminder of how the Court has damaged voting rights and helped Republicans in the process:

“If you assume that additional majority-minority districts in Alabama, Georgia, Louisiana, & 1–2 other states would’ve been safe Democratic seats, then today’s #SCOTUS ruling strongly suggests that the Court’s 2022 shadow docket stays [decisions/rulings] wrongly gave Republicans control of the House.”

Professor of law Anthony Michael Kreis, pointing to Vladeck’s remarks, adds: “there’s a House majority built on discriminatory lawlessness.”

Also taking note of Thursday’s SCOTUS ruling: House Democrats. Axios’ Andrew Solender reports House Democratic Minority Leader Hakeem Jeffries’ office is “inviting Dem[ocratic] congressional staff to a Friday briefing on recent Supreme Court cases, including the Alabama congressional map case.”

Meanwhile, the well-known NYU professor of law, Melissa Murray, is stepping in to properly frame reactions to what she sees as the Court’s “weak sauce” decision on the Voting Rights Act.

“Some initial thoughts on Allen v. Milligan,” she writes on Twitter. “Media is trumpeting this as a ‘victory’ for the Voting Rights Act. And it is. And I don’t want to be a turd in the punchbowl… but this is pretty weak sauce from this Court.”

Professor Murray says, “this doesn’t ‘strengthen’ the VRA. It preserves the status quo. And the status quo is that this Court has done an A+ job of hobbling the VRA over the last 10 years.”

Murray offers up some quick historical background.

“In 2013’s Shelby County v. Holder, it eviscerated the preclearance formula. The preclearance regime required states with a history of voting discrimination to first ‘preclear’ any changes to their voting rules and regs with the DOJ or a three-judge federal court panel.”

“The Court invalidated the preclearance formula on the ground that progress had been made and minorities were voting and blah blah blah,” she notes. “This progress narrative prompted RBG [the late Justice Ruth Bader Ginsburg] to note in dissent that throwing out the preclearance formula was like throwing out your umbrella in a rainstorm because you weren’t getting wet. She was right.”

Murray also refers to a number of other cases along the way that weakened voting rights.

“So, yes,” she concludes, “today’s decision is a victory that maintains the status quo for Section 2 of the VRA. But it is cold comfort when one considers the way this Court through its decisions has actively distorted the electoral landscape and made true representative government more elusive.”

The Economist’s Supreme Court reporter Steven Mazie, calls Prof. Murray’s remarks, “Crucial zoomed-out context for today’s Voting Rights Act ruling. The 5-4 is a surprise, and it’s a victory—but after a long string of losses, today’s win amounts to…not losing YET MORE voting protections for people of color.”

The Nation’s justice correspondent, Elie Mystal, offers a bit of a more compact and down-to-earth response: “A way to understand what just happened with Roberts and Kav[anaugh] in the Voting Rights Case is that it’s not going to change much in terms of Alabama’s racist maps. This cost them little,” he says. “The *victory* is that these fools could have straight killed Section 2 of the VRA, but didn’t.”

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John G. Roberts, Jr. was confirmed September 29, 2005, by the U.S. Senate as Chief Justice of the Supreme Court in a 78-22 vote. Roberts replaces Chief Justice William H. Rehnquist, who died on September 3, 2005. [1]

President George W. Bush nominated Roberts to be Supreme Court Chief Justice on September 5, 2005.

an 4 23

no lnx

supreme Court Chief Justice John Roberts’ wife earned $10.3 million in commissions for her work for elite law firms, one of which argued a case before her husband, Business Insider reports.

Jane Sullivan Roberts stepped away from her career as a prominent lawyer two years after her husband’s confirmation to the Supreme Court to become a legal recruiter, matching job-seeking lawyers with employers in what turned out to be a lucrative career change.

She made $10.3 million in commissions from 2007 to 2014, according to a whistleblowercomplaint, which cites internal records that were obtained from her employer by a disgruntled former colleague of Jane Roberts.

Kendal B. Price, the whistleblower who worked with Roberts at the firm Major, Lindsey & Africa, said as the chief justice’s wife, income Jane Roberts earns from law firms who try cases before the court should be subject to scrutiny.

IN OTHER NEWS: Trump put the GOP's 'worst nightmare' on display during latest campaign visit: NY Times reporter

"When I found out that the spouse of the chief justice was soliciting business from law firms, I knew immediately that it was wrong,” Price told Business Insider.

"During the time I was there, I was discouraged from ever raising the issue. And I realized that even the law firms who were Jane's clients had nowhere to go. They were being asked by the spouse of the chief justice for business worth hundreds of thousands of dollars, and there was no one to complain to. Most of these firms were likely appearing or seeking to appear before the Supreme Court. It's natural that they'd do anything they felt was necessary to be competitive."

Price in an affidavit that accompanied the complaint alleged that Jane Roberts benefited from her proximity to the chief justice.

"She restructured her career to benefit from his [John Roberts'] position," Price wrote.

"I believe that at least some of her remarkable success as a recruiter has come because of her spouse's position."

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EMPOWER TRUMP JUDGES?

an 2 23

Texas federal judge could soon ban medical abortions in all 50 states — and the Supreme Court might let him, Slate reports.

Slate reporters Dalia Lithwick and Mark Joseph Stern explain how conservative Judge Matthew Kacsmaryk, who was appointed to the bench by former President Donald Trump, could get away with outlawing mifepristone, "the first drug taken in the two-drug medication abortion protocol approved by the FDA (Food and Drug Administration)."

Since the overturning of Roe v. Wade last June, Lithwick and Stern write that instead of "undergoing a procedure at a clinic," many patients use pills to "terminate their pregnancies," considering "medication abortions are 18 times safer than childbirth, very reliable, and easy to access."

Anti-abortion abortion filed a lawsuit with the help of the conservative group Alliance Defending Freedom, with the intent to get the "case" in the hands of perhaps "the most lawless jurist in the country" — Kacsmaryk.

Lithwick and Stern write:

In less than three years, Kacsmaryk has seized control over border policy, repeatedly defied the Supreme Court’s decision protecting LGBTQ employees, and restricted minors’ access to birth control

:{The journalists point out three massive flaws in the case::(style="background-color:#ffff66;"):}:

**First, none of the plaintiffs "have a remotely plausible claim to standing," or "ability to sue in federal court.**" And in order to do so, they would need to prove that the FDA’s approval of mifepristone "injures them personally."

:{Second, the "substantive arguments are ridiculous," L:(style="background-color:#ffff66;"):}:ithwick and Stern write.

The plaintiffs assert that the FDA approved mifepristone, 23 years ago, while "ignoring potential adverse reactions" — in other words — "disputing the conclusions of the agency’s scientists."

Lastly, according to Lithwick and Stern, a federal judge has never banned a drug "by wholly revoking FDA approval." If mifepristone is banned in every state, doctors will no longer be able to prescribe the medication. The journalists argue that, since "a majority of patients use abortion pills," this would lead to chaos for healthcare providers --- "creating monthslong waitlists for abortion procedures even in deep-blue states."

Even with these three glaring flaws, "the actual, enduring problem," Lithwick and Stern write is that the lawsuit "stands a significant chance at succeeding."

They write:

The very weakness of this litigation — the lack of real standing, the blunderbuss attack on federal agencies, the extraordinary scope of the relief sought — are the seeds that have been planted by this newly constituted Supreme Court supermajority coming to fruition.The conservative justices have already brushed away standing requirements in order to weaken civil rights laws; severely weakened the EPA and the CDC; and let rogue judges seize power from the Biden administration.

Lithwick and Stern assert that perhaps the overturning of Roe v. Wade "was not the terminal point" in the attack on women' reproductive rights, but, instead, "barely even the start."

an badash 2 23

The highly controversial and highly unpopular **U.S. Supreme Court** isn’t just facing a historic loss of confidence, it’s now facing yet another ethics scandal that is likely to lower even further public opinion of the far-right institution that in under two decades has seen its approval rating slashed.

Although it will not hear arguments, the issue before the Supreme Court and the American people’s view of it, is, should a justice’s spouse – in this case the spouse of Chief Justice John Roberts – be able to make millions of dollars recruiting attorneys who are placed into top law firms that argue cases before it?

That’s the latest allegation, and already a spokesperson for the Court has issued a statement denying any ethical violations.

The New York Times reports that “a former colleague of Mrs. Roberts has raised concerns that her recruiting work poses potential ethics issues for the chief justice. Seeking an inquiry, the ex-colleague has provided records to the Justice Department and Congress indicatingMrs. Roberts has been paid millions of dollars in commissions for placing lawyers at firms — some of which have business before the Supreme Court,according to a letter obtained by The New York Times.”

Jane Sullivan Roberts left a law firm where she was a partner after her spouse was confirmed as Chief Justice.

“Mrs. Roberts, according to a 2015 deposition,” The Times reports, “said that a significant portion of her practice was devoted to helping senior government lawyers land jobs at law firms and that the candidates’ names were almost never disclosed.”

Documents in that case “list six-figure fees credited to Mrs. Roberts for placing partners at law firms — including $690,000 in 2012 for one such match. The documents do not name clients, but Mr. Price recalled her recruitment of one prominent candidate, Ken Salazar, then interior secretary under President Barack Obama, to WilmerHale,a global firm that boasts of arguing more than 125 times before the Supreme Court.”

That case involves “a former colleague of Mrs. Roberts,” Kendal Price, a 66-year-old Boston lawyer, who “has raised concerns that her recruiting work poses potential ethics issues for the chief justice.”

“According to the letter,” sent by Price to DOJ and Congress, which the Times reports it obtained, “Mr. Price was fired in 2013 and sued the firm, as well as Mrs. Roberts and another executive, over his dismissal.”

Doug Lindner, Advocacy Director for Judiciary & Democracy for the League of Conservation Voters remarked: “Another day, another ethics concern about another life-tenured conservative justice on the most powerful court in the world, which has no binding ethics rules.”

Indeed, the lack of a Supreme Court code of ethics has been repeatedly condemned for years, including by some of the nation’s top critics.

On Sept. 1, 2022, The Washington Post’s Jennifer Rubin tweeted out her opinion piece: “Ginni Thomas pressed Wisconsin lawmakers to overturn Biden’s 2020 victory .. just another insurrectionist.”

Norman Ornstein, an emeritus scholar at the American Enterprise Institute and a contributing editor for the Atlantic, responded:

“Another reminder of how unethical is Justice Clarence Thomas, while Chief Justice Roberts turns a blind eye and continues to resist a code of ethics for a Supreme Court now distrusted by a majority of Americans. This defines the Roberts Court.”

The following month Ornstein slammed the Roberts Court once again.

“It is a stain on the Supreme Court that Chief Justice Roberts refuses to support a Judicial Code of Ethics, and stands by silently while Clarence Thomas flouts ethical standards over and over and over,” Ornstein charged.

Less than one month later he again unleashed on Roberts.

“Roberts is culpable,” he tweeted. “He has resisted over and over applying the Judicial Code of Ethics to the Supreme Court. This is Alito’s court, and it is partisan and corrupt.”

Ornstein is far from the Court’s only critic.

“If Chief Justice Roberts really wanted to address Supreme Court ethics, he would have immediately worked to implement a Code of Conduct after Clarence Thomas failed to recuse from cases involving January 6th despite having a clear conflict of interest,” the government watchdog group Citizens for Responsibility and Ethics in Washington tweeted a year ago in May. The following month CREW published an analysis titled: “Chief Justice John Roberts is wrong: the American judicial system is facing a major ethics crisis.”

Meanwhile, in late November Politico reported that Democrats in Congress were outraged at the Roberts Court.

“Two senior Democrats in Congress are demanding that Chief Justice John Roberts detail what, if anything, the Supreme Court has done to respond to recent allegations of a leak of the outcome of a major case the high court considered several years ago,” PoliticoJosh Bernstein reported, referring to the leak of the Dobbs decision that overturned the Roe v. Wade decision – itself a massive ethics crisis for the Court.

“Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.) are also interested in examining claims about a concerted effort by religious conservatives to woo the justices through meals and social engagements. They wrote to Roberts on Sunday, making clear that if the court won’t investigate the alleged ethical breaches, lawmakers are likely to launch their own probe.”

Whitehouse and Johnson “also criticized the high court’s response to a letter they sent Roberts in September, seeking information about the court’s reaction to reports in POLITICO and Rolling Stone about a yearslong campaign to encourage favorable decisions from the justices by bolstering their religiosity.”

Nothing has changed.

When the Roberts Court earlier this month announced its lengthy investigation did not find the draft Dobbs decision leaker but also did not include the Justices themselves, Stokes Prof. of Law at NYU Law School Melissa Murray, an MSNBC host, tweeted, “This is a Roberts Court leitmotif–The Chief loves to handle things–even big things–in-house. Ethics issues? No need to get involved, Congress. We’ll sort it out ourselves. Leak needs investigating? No need to call in an actual investigative body, the Marshal will handle it.”

Pulitzer Prize-winning New York Times investigative reporter Jodi Kantor, pointing to how the Justices were not thoroughly investigated during the leak probe, in earlier this month said: “Last week the court released statements that confirmed the gap between how the justices and everyone else were treated.”

“The whole situation amplifies a major question about the court: are these nine people, making decisions that affect all of us, accountable to anyone?”

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an 10 22

Documents from the Federal Election Commission (FEC) show that over the summer, Sen. Ted Cruz of Texas received a payment of $555,000 from his campaign. Reporter Bryan Metzger, in an article published by Business Insider on October 18, explains why Cruz “has the U.S. Supreme Court to thank for it.”

Cruz, Metzger notes, challenged part of a 2002 law that “set a $250,000 limit on the amount of money that candidates could raise after the election for the purpose of paying off personal loans to their campaign committee.” The case, Federal Election Commission v. Ted Cruz for Senate, went all the way to the U.S. Supreme Court — and the Court, in a 6-3 ruling, agreed with Cruz. Chief Justice John Roberts used some Citizens United-influenced language in the ruling, writing that Section 304 of the 2002 law “inhibits candidates from loaning money to their campaigns in the first place, burdening core speech."

The 2002 law was the Bipartisan Campaign Reform Act, also known as the McCain/Feingold Act (as in Republican Sen. John McCain of Arizona and Democratic Sen. Russ Feingold of Wisconsin). The High Court’s ruling in Federal Election Commission v. Ted Cruz for Senate struck down Section 304.

“When Cruz first ran for the United States Senate in 2012,” Metzger explains, “he loaned his campaign over $1 million of his own money amid a heated primary campaign against then-Lt. Gov. David Dewhurst of Texas. Cruz would go on to win a run-off against Dewhurst. However, the 2002 Bipartisan Campaign Reform Act — championed by the late Republican Sen. John McCain of Arizona — set a $250,000 limit on the amount of money that candidates could raise after the election for the purpose of paying off personal loans to their campaign committee. Thus, Cruz essentially lost $545,000 of his own money after the campaign, with the outstanding portion of the loans converted to an in-kind contribution.”

Metzger continues, “Six years later, facing an unexpectedly competitive reelection campaign against then-Rep. Beto O'Rourke in 2018, Cruz opted to challenge the law. He lent his campaign $260,000 — just $10,000 more than the limit — on November 5, just one day before the election. That allowed Cruz to initiate a lawsuit against the Federal Election Commission, which eventually made its way up to the Supreme Court.”

When six of the nine High Court justices found Section 304 of the 2002 law unconstitutional, Roberts’ reference to “burdening core speech” was right out of the Court’s 2010 ruling in Citizens United v. FEC — a decision that equated campaign spending with “speech.”

The three dissenters in Federal Election Commission v. Ted Cruz for Senate were all appointed by Democratic presidents: Justice Elena Kagan, Justice Sonia Sotomayor and then-Justice Stephen Breyer, who has since been replaced by President Joe Biden’s appointee, Justice Ketanji Brown Jackson}:.

In her dissent, Kagan wrote, “It takes no political genius to see the heightened risk of corruption — the danger of 'I'll make you richer and you'll make me richer' arrangements between donors and officeholders. In discarding the statute, the Court fuels non-public-serving, self-interested governance."

YIKES SEE AMICUS

attempt to use NAACP v Ala/14th to make corp dark $ CONST PROTECTED?!

...

The negative effects that these new amicus campaigns have on our democ-

racy are twofold. The wealthy few fund the campaigns, excluding the majority

of Americans from the process and exacerbating preexisting countermajoritarian

and inequality concerns. And without a mechanism for disclosure, the general

public currently does not, and cannot, know how judicial reasoning is influenced

by masked private actors.

...

Donors have reaped enormous returns on their investments. As I have doc-

umented, the :{Roberts Court has handed down over eighty partisan Republican

5-4 decisions 87 that benefit an easily identifiable Republican Party-donor inter-}:

est.88

:{These include decisions that remove constraints on anonymous giving

(e.g., Citizens United v. FEC,89 Americans for Prosperity Foundation v. Bonta90), as

well as decisions that weaken the power of countervailing institutions like labor

unions (e.g., Janus v. American Federation of State, City & Municipal Employees,}:

158:{

Council 3191), regulatory agencies (e.g., Seila Law v. Consumer Financial Protection}:

Bureau92), and the civil jury (e.g., Epic Systems Corp. v. Lewis93).

The effects of this litigation strategy on our democracy are frightening: the

courts are becoming an arena for enacting policies by judicial decree that are too

unpopular to pass through democratically elected legislatures. These coordi-

nated efforts warp the judiciary toward anonymous, ultrawealthy donor inter-

ests, all without the public ever learning about the role of dark-money interests

in shaping the law. The Supreme Court was already, by its nature, an avenue for

countermajoritarian ideas and policies to prosper.

But as Barry Friedman ex-

plains, especially when the Court is acting during a period of judicial suprem-

acy—as it arguably is now—the countermajoritarian aspect of the institution will

flourish.94 Alongside those concerns, the emergence of the dark-money amicus

machine increases the probability that the Court’s rulings will run counter to the

will of the American people (i.e., counter to democracy), and instead for the

benefit of the hidden interests that had a secret hand in putting Justices on the

Court and then filed masked amicus briefs...

151

:{Sure enough,:{ Chief Justice Roberts’s}: ruling in favor of the Koch network—a:{6-3 decision with all Republican-appointed Justices in the majority—cast doubt}:

on the constitutionality of disclosure requirements of any kind, turbocharging

the kind of secretive influence through which the Koch operation and its allies

already dominate the public sphere.56}:

:{:{Significantly, many of the donors behind these amici lobbied for the confir-}:

mation of the Justices hearing the case. For instance, Americans for Prosperity,

the 501(c)(4) group directly affiliated with the plaintiff Foundation, spent “mil-

lions” of dollars on a “Full Scale Campaign” to confirm Justice Barrett to the

bench while AFPF’s cert petition was pending before the Court.57}:

Yet, in spite of all this lobbying on her behalf by an affiliate of one of the parties, Justice Barrett

rebuffed calls for her recusal in this matter by me and others—a recusal seem-

ingly required under the Court’s own due-process precedent58—and heard the

case anyway.59

D. Amicus Briefs and Dark-Money Influence on the Courts

Amicus briefs play an important role in the appellate process. Indeed, I have

filed many myself.60 Interested parties should be able to use amicus briefs to ad-

vance their view of the law or their conception of the public interest or to educate

...

https://www.yalelawjournal.org/pdf/F7.WhitehouseFinalDraftWeb_v4zwakx5.pdf

mma https://www.mediamatters.org/national-review/flashback-ed-whelan-defended-chief-justice-roberts-leaving-federalist-society-his

Right-wing media figures -- including National Review Online blogger and Ethics and Public Policy Center president Ed Whelan -- have been baselessly suggesting that judicial nominee Goodwin Liu was trying to hide something by submitting additional writings and statements as a supplement to his Senate Judiciary Committee questionnaire.

University of Minnesota law professor Richard Painter, a former assistant White House counsel during the Bush administration, pretty much destroyed those arguments, noting of Liu's additions, “most of these items are the types of things that law professors do routinely and frequently” and are thus “nearly impossible to keep track of” and stating: “Professor Liu also apparently does not have a photographic memory. It appears to me, however, that his original answers to the questions were a careful and good faith effort to supply the Senate with the information it needed to assess his nomination.” Painter continued: “He provided a lot more information than many nominees do in response to these questions. He has now provided the additional information the Senate wants. I doubt the Senators will learn anything new from it.”

Since Painter's definitive debunking hasn't stopped the attacks, we thought it was worth remembering that Chief Justice John Roberts omitted his affiliation with the Federalist Society from the questionnaire he submitted as a court of appeals nominee in 2001. That questionnaire asked Roberts to “list all bar associations, legal or judicial-related committees or conferences of which you are or have been a member.” Roberts listed several legal organizations but did not list the Federalist Society -- an influential conservative legal organization to which many of President Bush's judicial nominees belonged -- in response to that question. However, according to The Washington Post, the Federalist Society listed Roberts' name in its 1997-98 “leadership directory.” The Post reported that the Federalist Society listed Roberts “as a member of the steering committee of the organization's Washington chapter and includes his firm's address and telephone number.”

And who was busy excusing Roberts for not listing the Federalist Society on his questionnaire? Ed Whelan.

From the Post:

Whelan, who has been a member of the Federalist Society but said he had no recollection of his own membership on the steering committee, said the society is tolerant of those who come to its meetings or serve on committees without paying dues.

“John Roberts probably realized pretty quickly he could take part in activities he wanted to” without being current on his dues, Whelan said.

It should be noted that the questionnaire Roberts filled out for his Supreme Court nomination asked if Roberts to list all the organizations to which he currently belonged, had ever belonged, or in which he participated. This time, Roberts stated:

According to recent press reports, in 1997 I was listed in brochures as a member of the Washington Lawyers Steering Committee of the Federalist Society. The same reports indicate that one could be on the Committee without also being a member of the Society. I have no recollection of serving on that Committee or being a member of the Society. I have participated in Society events, including moderating a panel in 1993 and more recently speaking before a lunch meeting of the Washington chapter on October 30, 2003.

From the Post article:

Supreme Court nominee John G. Roberts Jr. has repeatedly said that he has no memory of belonging to the Federalist Society, but his name appears in the influential, conservative legal organization's 1997-1998 leadership directory.

Having served only two years on the U.S. Court of Appeals for the D.C. Circuit after a long career as a government and private-sector lawyer, Roberts has not amassed much of a public paper record that would show his judicial philosophy. Working with the Federalist Society would provide some clue of his sympathies. The organization keeps its membership rolls secret, but many key policymakers in the Bush administration are acknowledged current or former members.

Roberts has burnished his legal image carefully. When news organizations have reported his membership in the society, he or others speaking on his behalf have sought corrections. Last week, the White House told news organizations that had reported his membership in the group that he had no memory of belonging. The Washington Post, the Los Angeles Times, USA Today and the Associated Press printed corrections.

Over the weekend, The Post obtained a copy of the Federalist Society Lawyers' Division Leadership Directory, 1997-1998. It lists Roberts, then a partner at the law firm Hogan & Hartson, as a member of the steering committee of the organization's Washington chapter and includes his firm's address and telephone number.

Yesterday, White House spokeswoman Dana Perino said Roberts “has no recollection of being a member of the Federalist Society, or its steering committee.” Roberts has acknowledged taking part in some Federalist Society activities, Perino said.

The Federalist Society was founded in 1982 by conservatives who disagreed with what they saw as a leftist tilt in the nation's law schools. The group sponsors legal symposia and similar activities and serves as a network for rising conservative lawyers.

[...]

Membership in the sense of paying dues was not required as a condition of inclusion in a listing of the society's leadership, Leo said. He declined to say whether Roberts had ever paid dues, citing a policy of keeping membership information confidential.

Whelan, who has been a member of the Federalist Society but said he had no recollection of his own membership on the steering committee, said the society is tolerant of those who come to its meetings or serve on committees without paying dues.

“John Roberts probably realized pretty quickly he could take part in activities he wanted to” without being current on his dues, Whelan said.

These may seem like fine distinctions, but Roberts has insisted on them. In 2001, after he was nominated by President Bush for the seat he currently holds on the court of appeals,Roberts spoke to Post reporter James V. Grimaldi and asked him to correct an item Grimaldi had written that described Roberts as a member of the Federalist Society. In a subsequent column, Grimaldi wrote that Roberts “is not and never has been a member of the Federalist Society, as previous reported in this column.”

2018 9th circuit

https://www.politico.com/news/2021/07/01/supreme-court-california-disclosure-law-donors-497554

no lnx

Supreme Court nixes California disclosure law in blow to dark-money opponents

The high court ruled a state law requiring not-for-profit organizations that raise money in California to disclose their donors violated the donors' First Amendment rights.

The Supreme Court has ordered California to stop collecting the names and addresses of top donors to charities, siding with a nonprofit group with links to billionaire Charles Koch.

The Americans for Prosperity Foundation, backed by political megadonors Charles Koch and the late David Koch, brought one of the suits. | David Zalubowski, File/AP Photo

By JOSH GERSTEIN and ZACH MONTELLARO

07/01/2021

The Supreme Court dealt a blow Thursday to efforts to rein in so-called dark money political groups, issuing a ruling striking down California’s policy of demanding donor lists from nonprofit organizations.

The high court split 6-3 along ideological lines in its decision on a pair of cases challenging that California requirement, which forced non-profits raising money in California to give the state copies of federal tax forms containing donor information.

Chief Justice John Roberts, who wrote the majority opinion for the court, ruled that California’s “blanket demand” for that information “is facially unconstitutional.”

“When it comes to the freedom of association, the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals. The risk of a chilling effect on association is enough,” Roberts wrote for the court.

The ruling could have a political impact, complicating donor-disclosure requirements for groups that often pour large sums into elections but stop just short of the “express advocacy” for or against candidates that triggers stricter rules on revealing the sources of donations.

The court ruled that the California mandate for groups to turn over donor information to the state, even if kept confidential, was overly broad.

“The point is that a reasonable assessment of the burdens imposed by disclosure should begin with an understanding of the extent to which the burdens are unnecessary, and that requires narrow tailoring,” Roberts wrote.

Roberts’ ruling did not address the federal government’s authority to require the filing of donor information with the Internal Revenue Service. Most charities are still required to file lists of donors giving over $5,000 in a given year, but in 2018 the IRS dropped the requirement for some politically-oriented groups.

The justices’ ruling Thursday addressed lawsuits filed by two politically active, conservative nonprofit organizations in 2015. The Americans for Prosperity Foundation,backed by political megadonors Charles Koch and the late David Koch, brought one of the suits. The other was filed by theThomas More Law Center,a Michigan-based legal organization active on behalf of Catholic causes that was bankrolled by Tom Monaghan, founder of Domino’s Pizza.

Both organizations argued that California rules requiring filing of donor lists with state officials violate the First Amendment by discouraging individuals from giving and by exposing them to threats and harassment.

In 2016, AFP persuaded a federal judge in Los Angeles to issue a permanent injunction against the requirement. The judge said the state rarely used the information, but often disclosed it accidentally with charities’ public tax filings.

However, two years later, a 9th Circuit Court of Appeals panel unanimously reversed that ruling,holding that the state had a legitimate need for the data and that the Koch-founded group had not shown a significant burden on donors.

It’s unclear how the Supreme Court’s conclusions will impact similar donor-disclosure requirements at the federal level. The Internal Revenue Service has generally done a better job of keeping filings it receives confidential.

Part of Roberts’ opinion does, however, open the door to challenges to other disclosure requirements: “While exacting scrutiny does not require that disclosure regimes be the least restrictive means of achieving their ends, it does require that they be narrowly tailored to the government’s asserted interest,” he wrote.

Justice Sonia Sotomayor, writing in dissent and joined by the two other liberal-leaning justices, did however predict that the decision would open the floodgates to weakening disclosure requirements.

“Today’s analysis marks reporting and disclosure requirements with a bull’s-eye,” she wrote. “Regulated entities who wish to avoid their obligations can do so by vaguely waving toward First Amendment ‘privacy concerns.’”

The high court rulings could have a broader impact on efforts by Democrats to broaden and increase disclosure requirements, particularly for groups that run ads that mention federal candidates while stopping short of explicitly endorsing or opposing them.

The For the People Act, congressional Democrats’ massive campaign and ethics reform legislation that is stalled in the Senate amid Democratic infighting and a successful Republican filibuster last week, also contains provisions that would remake campaign finance disclosure law if enacted.

Senate Majority Leader Chuck Schumer stands with Sens. Raphael Warnock and Amy Klobuchar while speaking with reporters before a vote on the For the People Act.

CONGRESS

[Senate Republicans block Dems’ sweeping elections reform bill

BY MARIANNE LEVINE AND ZACH MONTELLARO]

Amid the hundreds of pages of the bill is a long-fought-over proposal that would dramatically expand which organizations are required to disclose donors and expenditures if they spend a nominal amount on communications that broadly mention federal candidates.

Republicans are now broadly opposed to such measures, a turnabout from two decades ago when prominent GOP leaders backed robust disclosure rules as an alternative to attempts to restrict donations to campaigns and outside groups.

“Republicans are in favor of disclosure,” Sen. Mitch McConnell (R-Ky.) said in a 2000 interview. “Why would a little disclosure be better than a lot of disclosure?”

McConnell has said that soon after those comments — and the passage of the Bipartisan Campaign Reform Act despite his opposition in 2002 — he concluded that such rules for groups that don’t engage in express advocacy violate the First Amendment. In the AFP case decided Thursday, he filed an amicus brief saying donor-disclosure requirements should face the “strictest scrutiny” when reviewed in court.

While AFP and the Thomas More Law Center unsurprisingly garnered support for their legal challenges from other conservative organizations, several liberal groups and First Amendment advocates also urged the Supreme Court to rule in favor of donor privacy in the cases.

The NAACP Legal Defense & Educational Fund, the American Civil Liberties Union, the LGBTQ rights advocacy group Human Rights Campaign and others argued that the justices should hold that California’s failure to keep the donor information confidential violated the conservative groups’ rights.

However, the liberal organizations’ brief — which drew significant interest from conservative justices at oral arguments — pushed the court toward a narrow decision that would not upset disclosure requirements for political campaigns or address the rights of regulators with a better track record for confidentiality to gather donor information.

FILED UNDER: CAMPAIGN FINANCE, CALIFORNIA, U.S. SUPREME COURT,}}

https://www.alternet.org/2022/06/stephen-breyer-gun-control-dissent/

no lnx

Stephen Breyer delivers a scathing and ‘ominous’ dissent in Supreme Court gun control ruling

U.S. Supreme Court Justice Stephen Breyer with President Joe Biden in January 2022 (Wikimedia Commons).

Alex Henderson June 23, 2022

On Thursday, June 23, the U.S. Supreme Court handed down a 6-3 decision in the case New York State Rifle & Pistol Association v. Bruen — striking down the “proper cause” part of the Sullivan Act of 1911 as unconstitutional. And Justice Stephen Breyer, was especially vehement in his dissent.

The Sullivan Act, passed 111 years ago and named after State Sen. Timothy Sullivan — a Tammany Hall Democrat — has limited licenses for concealed-carry handgun permits to those with specific defense needs. Under the Sullivan Act, a New York State law, anyone applying for a permit to carry a concealed handgun has had to show “proper cause.” And the High Court has ruled that the “proper cause” requirement is a violation of the U.S. Constitution’s 2nd Amendment.

Attorney Neal Katyal, who served as acting solicitor general under President Barack Obama and often appears on MSNBC, described the warning that opened Breyer’s dissent as “ominous.”

The 83-year-old Breyer, who is retiring from the High Court and will be replaced by President Joe Biden’s nominee, Judge Ketanji Brown Jackson, later this year, wrote, “In 2020, 45,222 Americans were killed by firearms.... Since the start of this year (2022), there have been277 reported mass shootings — an average of more than one per day.... Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents.”

Breyer continued, “Many states have tried to address some of the dangers of gun violence just described by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. The Court today severely burdens States' efforts to do so. It invokes the Second Amendment to strike down a New York law regulating the public carriage of concealed handguns. In my view, that decision rests upon several serious mistakes.”

All three of the dissenters in the High Court’s ruling in New York State Rifle & Pistol Association v. Bruen were appointed by Democratic presidents: Breyer, Justice Sonia Sotomayor and Justice Elena Kagan. After Jackson — who will be the first African-American woman on the Court — replaces Breyer, it will still have a 6-3 right-wing supermajority. And none of the GOP-appointed justices in that supermajority voted with the Democratic-appointed justices in the New York State ruling.

The majority opinion in the case was written by Justice Clarence Thomas, who was joined by three Donald Trump appointees (Justice Brett Kavanaugh, Justice Amy Coney Barrett and Justice Neil Gorsuch) as well as two George W. Bush appointees: Justice Samuel Alito and Chief Justice John Roberts.

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Former United States Secretary of Labor Robert Reich blasted right-wing efforts to gut federal regulations in a new video posted to YouTube on Tuesday.

In the roughly four-minute-long spot, Reich warned Americans that Republicans are working tirelessly to make life "more dangerous" in the name of boosting corporate profits.

"Your life could get a lot more dangerous. Republican appointees on the Supreme Court seem poised to strip away basic safety standards for our workplaces, our food, our air and water," Reich began.

He explained that regulatory organizations exist to protect the public from predatory practices.

"Remember when lots of romaine lettuce was recalled because it was causing E.coli outbreaks? That was the Food and Drug Administration protecting us from getting sick. Working in a warehouse? The Occupational Safety and Health Administration sets standards to ensure you don’t breathe in dangerous chemicals like asbestos. Enjoying the fresh air on a clear, sunny day? Thank the Environmental Protection Agency for limiting the amount of pollution that can go into our air," said Reich. "These agencies save lives. Since OSHA was established a half-century ago, its workplace safety regulations have saved more than 618,000 workers’ lives."

In this case, Reich takes aim at HFIB versus OSHA, in which the Court sided with the plaintiffs who sued to have COVID-19 workplace vaccine-or-testing mandates lifted.

"What this ruling tells us is that the Republican appointees on the Supreme Court are intent on gutting the power of agencies to issue regulations," he said. "This term, the Court will also hear a case regarding the EPA’s authority to enforce the Clean Water Act. If the Court undermines the EPA’s authority, it will put our environment – and our health – at risk. Remember when the Cuyahoga River caught on fire because it was brimming with oil, acid, and factory chemicals? That’s what we may be returning to."

Reich then reminded viewers that the GOP's assault on regulations is far from over.

"And what’s next? Will they gut the Federal Trade Commission and put us all at risk of being defrauded? Target the Securities and Exchange Commission and deregulate the financial sector, sparking another financial crisis?" he asked.

"Beware. If Republican appointees on the Supreme Court succeed in gutting regulatory agencies, we all lose. This agenda is anti-worker, anti-consumer, and anti-environment," Reich added. "The only thing it’s good for is corporate profits."

more discussion of packing and ethics; we used to rely on norms pre-trump, as in so many other gov't functions? a question of checks and balances among branches?

https://www.alternet.org/2022/03/clarence-thomas-2657046647/

tom b raw story

In an interview with Rolling Stone's Andrew Cohen, historian Jeff Shesol said he has no doubt thatSupreme Court Justice Clarence Thomas and his wife Ginni Thomas are in "lockstep" when it comes to believing Donald Trump should still be in the White House and claimed they see what they are doing as a "holy war."

With Cohen writing, "You don’t need to be a legal expert to know that one spouse shouldn’t sit in judgment in a case in which the other spouse is a witness — or a suspect. That’s as classic a conflict of interest as one can imagine and by refusing to acknowledge it Justice Thomas has brought great discredit on himself and his colleagues on the Court," he asked the author of “Supreme Power: Franklin Roosevelt vs The Supreme Court,” what he thinks is going on after revelations about Ginni Thomas' texts urging overturning the 2020 presidential election results.

According to Shesol, the biggest immediate problem is the fact that there is no mechanism in place to force Supreme Court justices to recuse themselves in cases where they have a personal stake as well as their freedom to take public political stances without consequences.

"I wrote for the NYT back in 2011 on the 'extrajudicial' activities of Thomas, [Samuel] Alito, and others," he explained. "They’re even more brazen today, if only because they have never faced any consequences (other than the opprobrium of the left and the mainstream media, opprobrium they welcome) for making political statements to politically minded crowds. You and I can write as many mean articles about them as we’d like, but short of impeachment, they’re untouchable and they revel in it."

According to the historian, he can't be sure Ginni Thomas was talking about her husband when she referenced support for election interference from her "best friend" -- but he has his suspicions.

After stating, "In a very real sense, Clarence and Ginni Thomas are answerable only to Clarence and Ginni Thomas. The Trump Administration gave us all a hard lesson in how few actual rules bind the behavior of our national leaders, and how much depends on their good judgment and self-restraint," he added. "Even if she’s not referring to Justice Thomas, the recent New Yorker story, among others, underscores the absurdity of the notion that (as they’ve claimed) Ginni does her thing and Clarence does his, and that they don’t discuss their work. This is a holy war, and, again, they are waging it in lockstep."

According to Shesol, Ginni Thomas is up to her neck in involvement t in the Jan 6th insurrection and there is little reason to believe that her husband didn't know it.

Explaining, "Ginni played an active role (which seems, with every passing revelation, to have been a greater role than previously disclosed or imagined) in trying to subvert the Constitution by overthrowing the results of a presidential election," he maintained that her husband's decision to side with Donald Trump on hiding White House documents, and his current silence, makes him suspect.

"Her husband’s role, apart from his dissent from that unsigned order, is less clear—though it is clear enough that he acted (or would have acted, if the other conservatives had joined him) in shielding his wife’s role in the plot from scrutiny," he stated. "Though his dissent is silent to his true motivations he has thus involved and implicated himself in the insurrection."

Youcan read more here.

https://www.alternet.org/2022/02/supreme-court-2656768455/

shadow docket, roe, voter suppression

ok gerry again?!

2nd or 3rd time pro gerry?!

https://www.alternet.org/2022/02/scotus-voting-rights/

in 2013 **Supreme Court Chief Justice John Roberts** effectively declared racism in America was over, as he penned the majority opinion in Shelby County v. Holder, a case that neutered the historic Voting Rights Act of 1965.

On Monday Chief Justice Roberts sided with the Court’s three remaining liberals in a case that pounded yet another nail in the coffin of the Voting Rights Act.

University of Michigan Law School Asst. Law Professor Leah Litman, commenting on the just-released Supreme Court decision writes: “One way of understanding how radical this step is: It is a position on voting rights/the voting rights act that is SO EXTREME, the author of Shelby County v. Holder (the decision invalidating the preclearance regime) did not join it. They _lost John Roberts_ on voting rights.”

On Monday conservatives (except Roberts) on the Court decided to allow a racially unfair congressional district map “even though a lower court said it violated the Voting Rights Act by denying Black voters a new district,” as NBC News reports.

The Economist’s Steven Mazie, who covers the Supreme Court writes:

2 22

two stories straight out of Alabama this week really encapsulate how the panic over "critical race theory," the war on schools and the war on democracy itself are all a piece of a singular racist right wing movement. Last week, AL.com reported that school officials across the state say parents are freaking out over the very existence of Black History Month, accusing schools of promoting "critical race theory" by mentioning it or honoring it in any way.

And on Monday, the Supreme Court declined to enforce the 1965 Voting Rights Actin response to a plainly racist gerrymander in Alabama, on the grounds that doing so would interfere with the state's control of their elections systems. Yes, even though federal oversight of state election systems is literally what the Voting Rights Act was designed to do.

It's been 13 months since Donald Trump incited an insurrection on the Capitol, one that was clearly driven by white supremacy and the belief that the votes of Black Americans simply shouldn't count as much as those of white people. There continues to be a struggle between various factions of the GOP over how to portray the violent insurrection itself — to call it a glorious MAGA revolution or pretend it was a random event unconnected to the larger party — but these two stories show the sentiment that drove it has now taken root in every corner of the GOP. From the school board to the Supreme Court, Republicans are determined to stomp out anything that stands in the way of white supremacy, from history to the law to democracy itself.

The Supreme Court's Monday decision is rife with confusing legalese, and will likely be mostly overlooked by both the media and the public because of it. But it's important. As with the court's recent approach to the Texas abortion ban, it showcases how the three Trump appointees to the court have transformed SCOTUS into an authoritarian body that will throw out the rule of law to enforce a far-right agenda.

In a 5-4 decision, the conservative justices stayed a lower court's ruling that a new Alabama gerrymander disenfranchised Black voters, in a clear violation of section 2 of the Voting Rights Act. In his defense of the decision, Trump appointeeBrett Kavanaugh didn't even bother to argue that the gerrymander was legal, but instead insisted that enforcing federal election law nine months out from an election would "lead to disruption" and that it was "unanticipated and unfair" to expect Alabama to obey a law passed 57 years ago.

"It is hard to overstate how lawless the Supreme Court's order is," wrote Mark Joseph Stern, who covers courts and law for Slate, on Twitter. "The five ultraconservative justices broke the court's own rules to intervene with an unreasoned shadow docket decision that effectively nullifies a key provision of the Voting Rights Act. It's profoundly alarming."[twt]

the refusal of the court to enforce the plain letter text of the law is so egregious that even Chief Justice John Roberts — a man who has made it his life's work to gut the Voting Rights Act — voted with the liberal justices. Roberts may share the racist goals of the other conservative judges, but even he clearly feels uneasy with the court simply rejecting the duty to enforce the law simply because they disagree with its aims.

By issuing this decision, the conservative judges are throwing their lot in with Trump and the Capitol insurrectionists — if the law will not uphold white supremacy, the law itself is invalid.

It's the same impulse underpinning the panic over "critical race theory," a cover story for white conservatives trying to stomp out acknowledgment of the country's racist history and contributions made by Black Americans. Republicans spent months gaslighting the public about this, insisting the attacks on school boards and bans on "critical race theory" were about stopping supposedly "divisive" teachings and "anti-white" racism. But their actions speak otherwise, from these complaints about Black History Month to efforts to ban books about Martin Luther King Jr. The goal is erasing history, literature and even facts that conflict with a white supremacist ideology.

What was remarkable about the Capitol insurrection is that it was both an assault on rule of law and on reality itself. The rioters rejected the basic fact that Joe Biden won the 2020 election. They also rejected the basic law that asserts that the winner of the election has the right to take power. The belief that they and people like them — white conservatives — have a "right" to rule overrules everything else.

The insurrection clearly didn't end on January 6, just because the rioters failed to overturn the election and enshrine the Big Lie. On the contrary, the insurrection has mutated and metastasized within the GOP. It has infused the whole party, from the ordinary voters freaking out at school boards to the highest court in the land. There might be a few Republican holdouts — like Roberts or former vice president Mike Pence — who still think things like "rule of law" and "basic facts" matter. But they have clearly lost the battle with the rest of the party, as this 5-4 Supreme Court decision shows. There is no law or fact Republicans feel bound to respect. Anything that stands in the way of the white conservative will to power is expected to give way.

5-4 loss he sorta // sotomayor, stark lang

https://www.alternet.org/2021/12/john-roberts-texas-aboriton/

we knew trump trio pro-corp thus anti-reg ACB?

https://www.alternet.org/2022/01/the-radical-right-s-takeover-of-the-supreme-court-is-complete/

no lnx digby

The radical right's takeover of the Supreme Court is complete

Heather Digby Parton and Salon January 14, 2022

It's very hard to fathom why the right seems so determined to prolong the deadly COVID-19 pandemic but it's obvious that they are. From politicians banning mask requirements to media celebrities pushing disinformation about vaccines, there is no escaping the fact that Republicans and their allies simply do not care that more than 850,000 thousand Americans are dead in less than two years from this scourge and that hundreds of thousands of them are still dying because they refuse to take life-saving vaccines. That the majority of them are their own constituents who have died because they believe right-wing conspiracy theories is just mind-boggling, but apparently they are convinced that this is good for them politically and gives them great ratings.

I guess I was hoping against all evidence to the contrary that there was some corner of the former conservative world that was above exploiting a global health catastrophe for their own gain but that was a silly illusion. Not even the Supreme Court could set aside their partisan and ideological goals in the face of a calamitous crisis. Yesterday they joined the anti-vax fanatics of Fox News and Info-Wars and blocked the implementation of the Biden administration's "vax or test" requirements for large businesses. If they could bend the rules just a little bit further the majority no doubt would have joined Tucker Carlson last night for a celebration.

The court did manage to scrape up a majority with the three liberals plus Chief Justice John Roberts and Justice Brett Kavanaugh to decline to block the mandate for health care workers — although the fact that four justices voted to block that as well is stunning. Remember, however, that there are still cases in the pipeline about that mandate so I'd guess the conservatives still hope they will be able to convince Kavanaugh or Roberts to join them on the dark side down the road. For now, the federal government has the right to mandate that institutions that serve Medicare and Medicaid patients require their employees to not willfully spread a deadly virus to their patients for no good reason. A rare moment of sanity.

Still, it's quite something to see the entire right-wing of the U.S. political system, all the way up to the Supreme Court, work together to hobble efforts to contain the pandemic so they can blame their political rivals for failing to contain the pandemic. Talk about teamwork.

Early reports suggest that the big businesses that were to be affected by the mandate are divided on the issue. Some, like United Airlines, which imposed its own mandate, reported that they have 99% compliance and are happy with the results. Others are planning to scrap their plans now that the federal mandate is gone. And if anyone was under the illusion that this was about freedom or markets or small government, ideas that used to be the backbone of conservative thought, some red states have imposed bans on private employers requiring vaccines. So without the federal mandate, even employers who would like to protect their workforce and their customers are going to be forced to allow unvaccinated employees to get sick, transmit the virus and make them bear the costs. Apparently, the Supreme Court agrees that this makes sense, which is terrifying.

The majority opinion rested on the idea that the Occupational Safety and Health Administration (OSHA) exceeded its authority because COVID is not specific to the workplace. They say that because people can also get it elsewhere an agency that is tasked with ensuring workplace safety has no business making this rule. I would just point out that this reasoning is going to come as quite a surprise to the people who have been working from home for the past year and a half, along with school employees, frontline workers and basically anyone who works for a living.

It's absurd. Nothing has been more disrupted by the pandemic than work — you know, that place where people gather inside buildings to spend at least 8 hours with other people breathing all over the place? Of course COVID is being spread at work, probably more than anywhere else. This rationale makes no sense at all. People can get poisoned by asbestos at places other than the workplace but employers are still required to ensure that they can't get it at work. The dissent by the three sane justices made clear how ludicrous the majority's decision was:

"Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from Covid-19? An agency with expertise in workplace health and safety, acting as Congress and the president authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?"

What is remains unstated but has been really illuminated in all this is the larger agenda of this Supreme Court. As law professor Kim Wehle explained in this piece for The Atlantic, this ruling is the first salvo in the conservative court's crusade to dismantle the administrative state:

"If Congress is hindered in its ability to employ agencies to fill in the details of its broad mandates, life in the United States could change dramatically. Agencies make rules and regulations affecting stock markets, consumer-product safety, the use and trafficking of firearms, environmental protection, workplace discrimination, agriculture, aviation, radio and television communications, financial institutions, federal elections, natural gas and electricity, the construction and maintenance of highways, imports and exports, human and veterinary drugs, and even the licensing and inspection of nuclear-power plants."

That is the goal. It's grotesque that they would exploit a deadly disease that's killing thousands of people every day to advance it, but they have a mission and nothing will stand in their way. In fact, there's a whole school of thought devoted to the idea that not only is it unconstitutional for the federal agencies to enact regulations, but Congress also has no authority to delegate that task to them in the first place. In this view, public health and safety is solely a state function.

If you are not one to follow the dark machinations of the right-wing legal community, and who can blame you, this idea may nonetheless sound familiar because you've heard it from some other less exalted sources. Recall that none other than Steve Bannon has been blathering on about the "deconstruction of the administrative state" ever since he came to national prominence. Recently, he's been telling people that he's training 4,000 "shock troops" who will be ready on day one when Donald Trump is restored to the presidency to take over all the federal agencies to clean out the bureaucracies and take a wrecking ball to government regulations.

The goal of destroying the government regulatory apparatus that makes America a first-world country is shared by Republicans from Bannon to Utah Sen. Mitt Romney to Wyoming Rep. Liz Cheney to Chief Justice John Roberts and every conservative in between. And it's one of the most radical agendas any political faction has ever advanced. If you want to know why all the Republicans backed Donald Trump even when they knew he was monumentally unfit, this was it. They got their court and their dream is about to come true. Unfortunately, it's a nightmare for the rest of us.

// flu

https://www.alternet.org/2022/01/gorsuch/

https://www.alternet.org/2022/01/supreme-court-vaccines/

see roberts whowants to preserve veneer of scotus legitimacy but trumpista mob and GOP honchos wants anti-abortion and voter suppression; brett and gorsuch pro corp

no lnx

https://www.alternet.org/2022/01/far-right/

A journalist and the author of the book The Next Civil War has published a terrifying but credible overview of the status of American democracy today, just two days before the anniversary of Donald Trump’s January 6 insurrection.

“The right has recognized that the system is in collapse, and it has a plan: violence and solidarity with treasonous far-right factions,” writes Stephen Marche at The Guardian in “The next US civil war is already here – we just refuse to see it.”

“January 6 wasn’t a wake-up call; it was a rallying cry,” Marche says. “Most of the American right have abandoned faith in government as such. Their politics is, increasingly, the politics of the gun. The American left is slower on the uptake, but they are starting to figure out that the system which they give the name of democracy is less deserving of the name every year.”

He says Americans should not place false hopes in law enforcement officials, including police, saving us.

“Hard right organization[s] have now infiltrated so many police forces – the connections number in the hundreds – that they have become unreliable allies in the struggle against domestic terrorism.”

Marche writes that “white supremacists in the United States are not a marginal force; they are inside its institutions,” as he quotes a former undercover FBI agent who used to work on domestic terrorism cases:

“The 2015 FBI counter-terrorism guide instructs FBI agents, on white supremacist cases, to not put them on the terrorist watch list as agents normally would do,” he says. “Because the police could then look at the watchlist and determine that they are their friends.”

And he blasts the left which he says “has divided into warring factions completely incapable of confronting the seriousness of the moment.”

The left “must abandon any imagined fantasies about the sanctity of governmental institutions that long ago gave up any claim to legitimacy. Stack the supreme court, end the filibuster, make Washington DC a state, and let the dogs howl, and now, before it is too late. The moment the right takes control of institutions, they will use them to overthrow democracy in its most basic forms; they are already rushing to dissolve whatever norms stand in the way of their full empowerment.”

Read the entire piece here.

ginni hired i hate blk ppl

https://www.alternet.org/2021/10/neil-gorsuch/

travis g raw

the U.S. Supreme Court's newly tilted right-wing majority will have a chance to leave its stamp on cases involving abortion, gun rights and torture, and the rulings will reveal who controls the court after Donald Trump jammed through three hardline conservatives.

The confirmation of Amy Coney Barrett to replace the late Ruth Bader Ginsburg takes away Chief Justice John Roberts' power to cast the deciding vote on any ruling, but legal experts disagree who will drive the majority's opinions in the session that starts this week, reported The Guardian. GUK

"Roberts's ambition is to keep the law as narrow as possible and keep as much of the court's legitimacy as possible while twirling ever toward the Republicans' agenda," said Elie Mystal, a justice correspondent for The Nation. "[Brett] Kavanaugh likes beer. Amy Coney Barrett likes Jesus. These are fundamentally narrow positions. Gorsuch wants to fundamentally change the law and reframe the way we think about the law. [Neil] Gorsuch wants to do horrible things, but ambitious things. He's got the intellectual tools to accomplish it."

Another court watcher thinks Justice Clarence Thomas will emerge as the most powerful member of the court.

"Roberts is only marginally in charge to the extent that he can bring Kavanaugh or Barrett with him," said Josh Blackman, of the South Texas College of Law Houston. "I think we are living in Justice Thomas's world. He is always thinking ahead several steps and has built an army of supporters."

Barrett and Justice Samuel Alito recently made unusually defensive remarks about the court's legitimacy after Mitch McConnell used his power as Senate majority leader to engineer a 6-3 conservative majority, which then allowed Texas to outlaw most abortions through its controversial "shadow docket" process.

"I think the thing to watch is whether Roberts can pick off one of the members of the [conservative] super majority to have the result come out differently than the hard right would want," said Garrett Epps, a professor at the University of Baltimore School of Law. "I think it may not be his court, but his role is by far the most interesting of any of the justices because he is – and he alone – an institutionalist, in the sense that he really cares about the Supreme Court and his place in history, more than he really cares about his own policy goals."

FROM YOUR SITE ARTICLES

RELATED ARTICLES AROUND THE WEB

"terrifing" ruling for policy by tex trump judge?!

https://www.alternet.org/2021/08/supreme-court/

big lie institutionalized (msnbc?)

https://www.alternet.org/2021/07/justice-alito/

https://www.npr.org/2021/06/24/1009750949/supreme-court-justices-hand-farmworkers-union-a-loss

sTEVE INSKEEP, HOST:

The Supreme Court has once again tightened the leash on labor unions and their ability to organize workers. The spotlight was on the United Farm Workers and a California law which allowed union organizers to enter farms to speak to workers during non-working hours for a limited number of days each year. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: By a 6-3 vote along ideological lines, the conservative court majority gutted a California regulation enacted nearly 50 years ago after a campaign by famed union organizer Cesar Chavez. The court said that the law unconstitutionally appropriated private land by allowing union organizers to go on to farm property to drum up union support. The decision, however, stopped short of imposing similar restrictions on the federal labor law, and the court said its decision did not apply to government health and safety inspectors and their access to private property. Federal protections for union access to the worksite were first enacted in the 1930s, but farmworkers were excluded from the law, an exclusion that California sought to make up for nearly a half-century ago.

But after the Supreme Court's decision on Wednesday, California's regulation is, for all practical purposes, gone. Mario Martinez, general counsel for the United Farm Workers Union, contends that in the 1930s, race was the motivating factor in excluding farmworkers from the original federal law protecting union access to the workplace. And now, he says, migrant workers, some of the poorest laborers in the country, are again being left out.

MARIO MARTINEZ: You double down on that exclusion and discrimination by saying that a state law that's been in existence for almost 50 years is not respectful of the growers' rights. But, obviously, there was no discussion of the workers who are essential workers to feed America. There was no discussion of their rights at all.

TOTENBERG: Other union leaders echoed that sentiment. Nicole Berner, general counsel for theService Employees International Union, says if workers learned anything during the pandemic, it was that they needed a union to defend their rights.

NICOLE BERNER: Farmworkers kept working to keep food on all of our tables, and now, because of today's ruling, they'll face even greater obstacles in their efforts to improve their working conditions.

TOTENBERG: Wednesday's decision, written by Chief Justice John Roberts, said that California's regulation amounted to an appropriation of the growers' property, an unconstitutional physical taking of their land without the just compensation required by the Constitution. Joshua Thompson of the Pacific Legal Foundation, which represented the growers, said the court gave them exactly what they asked for.

JOSHUA THOMPSON: When the property rights are infringed by denying farms the right to choose who can come inand cannot come into their property, constitution demands that the government pay for that right.

TOTENBERG: Thompson noted accurately that some of the protections for union organizers' access enacted into the federal law in the 1930s have been eroded by the Supreme Court over time. But Wednesday's decision was only the latest in a series of decisions over the last 16 years that have aimed directly at the heart of organized labor in the United States. The culmination came in 2018, when the court hamstrung public-sector union efforts to collect partial dues from non-union members to cover the costs of collective bargaining. In that decision, the court, by a 5-4 majority, overturned a 40-year-old precedent that had allowed unions to collect limited so-called fair share fees from workers who were not in the union but who benefited from the terms of the contract that the union negotiated.

Wednesday's decision was a potentially mortal blow to the farmworkers in particular. But Mario Martinez, the union's counsel, says there are ways to fight back, from organizing boycotts through social media against particular growers to other measures, including strikes that could make it painful for the growers. UCLA law professor Katherine Stone has written multiple books on labor and employment law.

KATHERINE STONE: Whether it's going to happen within the context of the labor law or whether we're going to have a whole new era of labor warfare is an open question. If you don't have orderly mechanisms to deal with worker organizing and to deal with collective action of workers, then you get disorderly mechanisms.

TOTENBERG: Joining Chief Justice Roberts' opinion yesterday were the court's five other conservatives.Justice Stephen Breyer wrote the dissent for himself and the court's two other liberals.They said that allowing temporary access to an employer's property in non-working hours is not the same thing as a physical taking of property that would require compensation. Nina Totenberg, NPR News, Washington.

Chief Justice John Roberts issued a rare statement on Wednesday denouncing "dangerous" remarks made earlier in the day by Democratic Senate Minority Leader Chuck Schumer of New York.

Schumer held a rally outside the Supreme Court on the day it held oral arguments in a case that could prove pivotal in the fight of abortion rights in the United States. At one point, he called out the two justices who were appointed by President Donald Trump and issued a threat.

"They're taking away fundamental rights," Schumer said. "I want to tell you, [Justice Neil] Gorsuch! I want to tell you, [Justice Brett] Kavanaugh! You have released the whirlwind, and you will pay the price! You won't know what hit you if you go forward with these awful decisions!"

Watch the clip below:

yikes, not a dependable hero

https://www.alternet.org/2020/09/the-gop-reshaped-american-democracy-to-hold-onto-power-can-the-democrats-do-the-same-thing-to-save-it/

In the power grab to fill the Supreme Court seat announced the same evening as the death of Justice Ruth Bader Ginsburg, Mitch McConnell didn’t do anything new. The GOP has a long history of playing hardball power politics.

In the late 19th century, Republicans added four states (Nevada, Colorado, North Dakota, and South Dakota) purely to gain eight new Republican senators, a trick Democrats could duplicate today by bringing statehood to Washington, D.C., and Puerto Rico (and maybe even Guam).

And in 1877, Republicans installed their presidential candidate, Rutherford B. Hayes, into the White House after he had lost both the popular vote and the Electoral College vote to Democrat Samuel Tilden, a case Trump may have been referring to in a press conference on September 16, saying, “at a certain point, it goes to Congress.”(This is the 12th Amendment nightmare I wrote about in March and Greg Palast has recently pursued.)

Republicans have also reduced the size of the Supreme Court specifically to deny a Democratic president a nominee before. (And, of course, there’s the sordid tale of what they did to Merrick Garland.) Democrats can easily change the composition of the court with a simple majority if they control the House and Senate after the election and choose to end the slavery-era filibuster rule. The closest any Democrat has ever come to this sort of thing was in 1937 when President Franklin D. Roosevelt threatened to “pack” the court as Republicans had done 71 years earlier. (The threat and widespread public opinion in its favor worked, forcing the court to change its position on the New Deal, so the issue never came to a vote in Congress.)

Pushing the boundaries even further, over the course of now-Chief Justice John Roberts’ career working for President Ronald Reagan, George H.W. Bush and George W. Bush, he proposed a nuclear option that Republican lawmakers could use to legislatively overturn *Brown v. Board* and *Roe v. Wade* whether the Supreme Court liked it or not. Roberts’ plan was never implemented, but it’s still a long-shot option.

McConnell knows the first lesson of power politics: when representing only a minority, you must ruthlessly grab every bit of power you can, every time you can.

Republicans in the U.S. Senate represent about 15 million fewer Americans than do Democrats. The last Republican president initially elected with a majority vote from the American people was George H.W. Bush, 32 years ago in 1988; George W. Bush lost by about a half-million votes, and Trump lost by almost 3 million. In the U.S. House in 2018, 9 million more Americans voted for a Democrat than a Republican, a margin (8.6 percent) far larger than their actual governing majority.

Nonetheless, Republicans tenaciously hang onto power and do whatever it takes to both hold and increase that power at every opportunity.

Democrats must learn from this history and consider all of these options if they win the White House and the Senate, and hold the House this November. Being elected with solid majorities will enhance their credibility when they seize and wield that power, so it’s doubly important now to strike when the opportunity arises.

Here’s a deeper dive into the background, largely drawn from mybooks***The Hidden History of the Supreme Court**and the Betrayal of America* and *The Hidden History of the War on Voting*.

Packing the Court in 1801

Thomas Jefferson beat John Adams in the election of 1800, and so, during the lame-duck session of 1801, Adams’ Federalists (the conservative party at that time) passed the Judiciary Act of 1801 to cut the size of the Supreme Court from six members to five, purely to deny Jefferson an opportunity to make an appointment. (Jefferson’s Democratic-Republicans—today’s Democratic Party—increased the number of members of the court to seven in 1802.)

The law also created 16 new federal judgeships, which Adams sought to quickly fill before Jefferson took office in March; that created a mess that led to the *Marbury v. Madison* decision, which authorized the court to strike down laws passed by Congress.

Packing the Court in 1866/1869

In 1866, Republicans in the House and Senate passed a law to reduce the number of justices on the Supreme Court from 10 to 7 to deny Democratic President Andrew Johnson an opportunity to fill a seat opened up with the 1865 death of Associate Justice John Catron. Johnson was furious, but there was nothing he could do.

Three years later, with Johnson out of the White House and Republican President Ulysses Grant safely in charge, they passed the Judiciary Act of 1869 that raised the number of justices up to nine, where it has stood till today.

Packing the Court in 1937

During FDR’s presidency, four of the Supreme Court’s justices, Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, were collectively known as the Four Horsemen. They were invariably joined by one of the other justices, particularly Justice Owen Roberts, to strike down New Deal legislation that attempted to address unemployment and poverty, no matter how popular it was.

For the preceding decades during the *Lochner* era, the court had struck down dozens of state laws protecting workers, including women and children.

In 1935, the Supreme Court ruled that both the Agricultural Adjustment Act and the National Industrial Recovery Act were unconstitutional, gutting Roosevelt’s New Deal legislation.

The Agricultural Adjustment Act had passed in 1933 with 76 percent of the House of Representatives voting for it. The bill passed the Senate, also with 76 percent of the Senate voting for it.

Historian William Leuchtenburg wrote for Smithsonian magazine that after the Agricultural Adjustment Act was struck down, “Many farmers were incensed. On the night following [Justice Owen] Roberts’ opinion, a passerby in Ames, Iowa, discovered life-size effigies of the six majority opinion justices hanged by the side of a road.”

The National Industrial Recovery Act had likewise passed with 71 percent of the House voting for it and 81 percent of senators voting for it.

When the Supreme Court used its power of judicial review to overturn these laws, it wasn’t viewed just as an assault on FDR’s New Deal. It was, in the opinion of many Americans (and FDR himself), an assault on the very basis of our democratic republic.

Then, shortly before Roosevelt was reelected in 1936, the court struck down a New York state law that established a minimum wage for women and children in *Morehead v. New York ex rel. Tipaldo*.

The pendulum of popular opinion swung hard against the court almost overnight. One Republican newspaper in New York declared its opposition to the ruling: “The law that would jail any laundryman for having an underfed horse should jail him for having an underfed girl employee.”

And as historian David B. Woolner, author of *The Last 100 Days: FDR at War and at Peace*, noted, “Over… 13 months, the court struck down more pieces of legislation than at any other time in U.S. history.”

In 1937, the National Labor Relations Act and the Social Security Act (both passed in 1935) were on their way to the court. Considering how the Four Horsemen had ruled during FDR’s first term, Roosevelt knew that he needed to do something or risk losing both pieces of legislation.

With the New Deal on the line, Roosevelt went on the attack. On February 5, 1937, just months after his landslide reelection, he announced his plan. He asked Congress for the authority toappoint one justice for each justice over 70 who would not retire.

In 1937, the average life expectancy for men in the United States was only 58 years old. The average age of the Supreme Court justices at the time was 71 years old, and six of the justices were age 70 or older. A book mocking the court, called *The Nine Old Men*, “was rapidly moving up the bestseller lists,” as Leuchtenburg wrote.

FDR directly called into question the “capacity of the judges themselves” to dispose of the growing number of cases facing federal courts. The United States’ population had increased nearly 70 percent between 1900 and 1936, and the number of cases facing federal court dockets had exploded. Citizens were waiting longer and longer to go in front of older and older judges.

Roosevelt’s plan would have immediately given him six appointments to the Supreme Court and up to 44 appointments for federal lower courts. Roosevelt argued that “[a] constant and systematic addition of younger blood will vitalize the courts.”

On March 9, 1937, Roosevelt told the nation that the court was ruling not just against himself and Congress, but against the will of the American people.

“The Courts,” Roosevelt told the nation, “have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.”

Roosevelt’s critics were aghast at his plans. They claimed he was trying the “pack the court” with justices who would simply be his yes men.

Reacting to his critics, Roosevelt cut to the heart of the matter:

“[I]f by that phrase the charge is made… that I will appoint Justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint Justices who will act as Justices and not as legislators—if the appointment of such Justices can be called ‘packing the Courts,’ then I say that I and with me the vast majority of the American people favor doing just that thing—now.”

Congress never voted on the plan. It’s unclear whether it would have succeeded, or if a more moderate plan that would have given him only two or three justices might have passed more easily.

Instead, on March 29, 1937, a Washington state minimum wage law came before the Supreme Court in *West Coast Hotel Co. v. Parrish*. The law in question was nearly identical to the New York state law that had come before the court a year earlier when it had outlawed minimum wage laws as being unconstitutional.

But this time, Justice Owen Roberts abandoned the Four Horsemen to uphold Washington’s minimum wage in a 5-4 decision. In a further series of 5-4 decisions two weeks later, the court upheld the National Labor Relations Act as constitutional. The nation was astonished.

Labor Secretary Frances Perkins was close friends with Justice Roberts’ wife, Elizabeth. When the decisions came down, according to Kirstin Downey’s biography of Perkins, “she rushed that afternoon to Roberts’ home” and “threw her arms around the man and hugged him.”

“Owen, I am so proud of you,” Perkins told the Supreme Court justice. “A man of your standing and intelligence who is not afraid to change his mind!”

Downey wrote of how Roberts was embarrassed by the affection but also very pleased. “Really, do you think so?” he replied to Perkins.

Less than two months later, the court declared that Social Security was constitutional.

The New Deal had been saved from execution on the Supreme Court’s bench. Social Security had been salvaged, and the National Labor Relations Act gave labor and unions a lifeline after generations of fighting to stay afloat.

Roberts’ about-face in *West Coast Hotel* case was referred to at the time as “the switch in time that saved nine,” rendering FDR’s proposal unnecessary.

Packing the Senate

In 1864, Abraham Lincoln was looking at the potential future composition of the U.S. Supreme Court after the war, concerned that Democrats might end up controlling the judicial body.

Back then, it took roughly 125,000 citizens in a territory to qualify it for statehood, and the Nevada Territory only had 40,000 residents, but almost all were GOP-aligned. So, ignoring the 125,000-person requirement (it was more a matter of policy than law), Lincoln proposed statehood for Nevada and Congress approved it, adding two new GOP senators.

After the Civil War, as Southern (and Democratic-controlled) states were reintegrating into the Union, Republican President Ulysses Grant was worried that Democrats might end up controlling the Senate, and so in 1876 Grant and Republicans in Congress added Colorado—with fewer than 40,000 residents—as a new state, gaining two more GOP senators.

Democrats were rising in power again when Democrat Grover Cleveland won the White House in 1884 and won the popular vote (but lost the Electoral College) in 1888.Popular-vote loser Republican President Benjamin Harrison, in 1889, successfully proposed the Dakota Territory—which then had 134,000 residents—be split into two territories, North Dakota (pop. 36,000) and South Dakota (pop. 98,000), and each of them become states with two senators each.

Thus, in 25 years, the GOP added eight senators, largely cementing their control of the Senate until the Great Depression; from Lincoln’s inauguration in 1861 until FDR’s inauguration in 1933, Democrats controlled the Senate for only 10 years.

Roberts’ Nuclear Option to Get Around the Supreme Court

The year 1981 was a big one for court-stripping—or, as it’s sometimes called, jurisdiction-stripping. No fewer than 30 pieces of legislation were introduced into the U.S. House of Representatives by Republican congressmen that included court-stripping provisions. It was a huge topic of discussion and legal activity among Republicans.

And a young lawyer working in Ronald Reagan’s Justice Department, an up-and-comer named John Roberts, was hot on the trail.

Court-stripping is based on the idea that Congress has the power, under the Constitution, to pass laws that include provisions that specifically prevent (or strip the jurisdiction of) the Supreme Court (or any other federal court, if stipulated) from ruling on that particular law or issue’s constitutionality.

It’s based on Article III, Section 2, of the Constitution, which says, “[T]he [S]upreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

In 1954, the Supreme Court ruled, in *Brown v. Board*, that states had to racially integrate their schools. Southern states promised “massive resistance” in defiance, and entire school districts were shut down; many Southern states opened private all-white “segregation academies” such as the one Mississippi Senator Cindy Hyde-Smith famously went to and sent her daughter to.

Brown provoked a mini-industry among right-wing white racists: Fred Koch’s beloved John Birch Society was putting up “Impeach Earl Warren” billboards across the nation and publishing articles and pamphlets tying civil rights activists to communism; hundreds of all-white private schools opened; and conservative scholars of the Supreme Court and the Constitution searched through old books and debates from the founding era to that day looking for rationales to overturn the decision.

Other than years of disruption to public education and a redoubled effort by conservatives to keep public schools funded with local property taxes (so that poor and/or Black schools would continue to turn out poorly educated students), not a great deal came of the opposition to Brown v. Board.

But defying the Court became a much bigger business in 1973, when the court in *Roe v. Wade* ruled that women have the right, at least in the first trimester of a pregnancy, to choose to have an abortion pretty much anywhere in the country, for any reason.

Reagan kicked off his 1980 presidential campaign with a speech about education and states’ rights to a predominantly white crowd near Philadelphia, Mississippi, where three civil rights activists had been murdered in 1964. Willing to say and do whatever it took to take the White House, Reagan was the perfect vessel for a white supremacy message opposing forced integration, welfare for Black people, and abortion for white women.

Reagan’s administration brought together a constellation of conservative white men to change the face of America.Ted Olson, who later argued Bush v. Gore before the U.S. Supreme Court, led the Justice Department’s Office of Legal Counsel. As an assistant attorney general, Olson worked with counselor to the attorney general Ken Starr (appointed to that job in 1981), who was later (1989-1993) George H.W. Bush’s solicitor general. Other new faces Reagan hired included Samuel Alito and John Roberts.

Starr tasked Roberts, a staunchly antiabortion Catholic, with reviewing the entire history of the U.S. Supreme Court for cases that suggested a legislative or administrative way to overturn Roe v. Wade and Brown v. Board.

Roberts wrote an extraordinary 27-page document that’s largely unknown, in the form of a memo on the letterhead of the Office of the Attorney General, to Ken Starr, signed by Roberts as special assistant to the attorney general. It is titled, “Proposals to Divest the Supreme Court of Appellate Jurisdiction:An Analysis in Light of Recent Developments.”

Roberts wrote that he had found “over twenty bills [pending in Congress] which would divest the Supreme Court (and, in most instances, lower federal courts as well) of jurisdiction to hear certain types of controversies, ranging from school prayer and desegregation cases to abortion cases.”

What Roberts and his researchers had discovered was substantial.

Court-stripping is based on the exceptions clause of Article III, Section 2, of the Constitution, which stipulates that the courts exist “with such Exceptions, and under such Regulations as the Congress shall make.”

Roberts noted in his memo that “[t]he exceptions clause by its terms contains no limit… This clear and unequivocal language is the strongest argument in favor of congressional power and the inevitable stumbling block for those would read the clause in a more restricted fashion.”

Roberts was looking at the nuclear option. If he could build a strong case for Congress passing a law against abortion or desegregation, and persuade Congress to use the exceptions clause to render the courts moot, then this could be the magic bullet to restore segregation and recriminalize abortion.

Roberts concluded with a 1968 comment from Sam Ervin of North Carolina, one of the Senate’s most outspoken opponents of racial integration and abortion.

He wrote, “As Senator Ervin noted during hearings on the exceptions clause, ‘I don’t believe that the Founding Fathers could have found any simpler words or plainer words in the English language to say what they said, which was that the appellate jurisdiction of the Supreme Court is dependent entirely upon the will of Congress.’”

Roberts agreed: “[W]e are not considering a constitutional clause that is by its nature indeterminate and incapable of precise or fixed meaning, such as the due process clause or the prohibition on unreasonable searches and seizures.”

This was clearly the original intent, Roberts argued, because “the exceptions clause ‘was not debated’ by the Committee of Detail which drafted it or the whole Convention.”

Citing Federalist, no. 81, Roberts wrote, “Hamilton noted that the clause would enable ‘the government to modify [appellate jurisdiction] in such a manner as will best answer the ends of public justice and security,’ and that appellate jurisdiction was ‘subject to any exceptions and regulations which may be thought advisable.’”

Section III of Roberts’ screed on court-stripping dives deep into Supreme Court decisions to find rulings explicitly saying that Congress can regulate the Supreme Court and block the court from ruling on particular issues.

Beginning with the 1869 decision *Ex parte McCardle*, Roberts wrote, “A unanimous Court upheld the power of Congress to divest the Supreme Court of jurisdiction. The Court clearly based its decision on Congress’ power under the exceptions clause. Chief Justice Chase began the opinion by recognizing that the appellate jurisdiction of the Court ‘is conferred “with such exceptions and under such regulations as Congress shall make.”’”

Quoting Chase again, Roberts added his own emphasis: “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this Court is given by express words [underline Roberts’].”

He continued his historical exposé of court-stripping with another 1869 decision, *Ex parte Yerger*, and then *United States v. Klein* (1872), *Wiscart v. Dauchy* (1796), *Durousseau v. United States* (1810), *Daniels v. Railroad* (1865), and *The Francis Wright* (1881).

In The Francis Wright, Roberts found thatChief Justice Morrison R. Waite (whose court oversaw the infamous 1886 “corporate personhood” Santa Clara County v. Southern Pacific Railroad case) wrote for a unanimous court, quoting him as follows: “Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review, while others are not.”

Each case strengthened the idea that Congress could simply pass a law, without even needing a supermajority, that barred the Supreme Court from ruling on a set of issues—like Reagan’s hot-button issues of school desegregation and abortion.

Moving toward late-19th-century decisions, Roberts quoted the court in *Colorado Central Consolidated Mining Co. v. Turck* (1893): “[I]t has been held in an uninterrupted series of decisions that this Court exercises appellate jurisdiction only in accordance with the acts of Congress upon the subject.”

Roberts, in his own voice, added, “Again, it bears emphasis that the basis for this theory is the implicit exercise by Congress of its exceptions power when it makes a limited grant of jurisdiction.”

Still building his case, Roberts jumped into 20th-century rulings, starting with *National Mutual Insurance Co. v. Tidewater Transfer Co*. (1948). Writing for the majority, Justice Felix Frankfurter noted in the decision, “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.”

About the 1944 *Yakus v. United States* case, Roberts wrote, “Justice Rutledge noted… that ‘Congress has plenary power to confer or withhold appellate jurisdiction.’”

Regarding *Flast v. Cohen* (1968), Roberts quoted from Justice William O. Douglas, who wrote, “[A]s respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of Section 2, Article III. See Ex parte McCardle.”

In Section IV of his memo, Roberts again covered the span from the framing of the Constitution to the time of his writing the memo, quoting another dozen or so cases that referenced, less directly, the power of Congress to exempt the Court from certain issues or decisions.

Roberts also noted that the original Judiciary Act of 1789 (which created the federal court system) also refers to Congress’ power of exception.

Time to Play Hardball

Both demographics and popular political opinion are moving against the Republican Party, and Republican politicians know it. Democrats should use this moment—if we can succeed in fighting back the GOP fascist tide—to use historical precedent to reconfigure our government so it represents the will of a majority of Americans.

No more Mx. Nice Guy.

https://www.alternet.org/2020/08/john-roberts-dark-and-sordid-history-may-haunt-us-if-the-2020-election-goes-to-the-supreme-court/

as election day approaches, voting-rights lawsuits are heating up across the country. In two separate federal cases in August, 20 states and the District of Columbia sued President Trump and Postmaster General Louis DeJoy to reverse cutbacks to the postal system designed to undermine the agency’s ability to deliver the expected upsurge in mail-in ballots this fall.

At the same time, the Trump administration has filed federal lawsuits to invalidate vote-by-mail procedures adopted in Pennsylvania, Nevada, and New Jersey. The administration alleges, without any supporting evidence, that easing the rules on mail-in balloting will lead to massive fraud.

The vote-by-mail litigation joins other ongoing election cases that have been launched in Texas, Alabama, Indiana, Missouri, North Carolina and elsewhere, challenging restrictive voter ID laws, voting roll purges, the closing of polling stations in minority communities, and other suppression techniques.

A few of the pending lawsuits have already reached the Supreme Court and more, perhaps those involving the Postal Service, are undoubtedly on the way. Thus far, however, the court has declined to take any action to halt the growing tide of voter suppression, displaying a clear animosity to voting rights.

the performance of Chief Justice John Roberts has been especially regrettable, but by no means surprising. Although Roberts has established himself as the court’s decisive swing justice, his record on voting rights, both as a well-connected GOP attorney in his younger days and later on the bench, is long and truly abysmal.

Roberts made his initial mark in the voting-rights field in 1982 when, as a special assistant to Reagan-era Attorney General William French Smith, he authored a lengthy memorandum urging the administration to oppose an expansion of the Voting Rights Act (VRA), the landmark legislation passed by Congress in 1965 to outlaw racial discrimination in voting.

Eighteen years later, while in private practice in Washington, D.C., Roberts reportedly played an important behind-the-scenes role in the litigation that led to the Supreme Court’s decision in *Bush v. Gore*, the infamous judicial coup d’état that halted a manual recount of the disputed Florida vote in the 2000 presidential election and handed victory to George W. Bush.

In the run-up to his 2005 Supreme Court confirmation hearing, Roberts’ role in the Florida recount controversy was the subject of a small handful of newspaper articles, in particular one published in July 2005 by the Miami Herald. According to reporter Marc Caputo, now a staff writer with Politico, Roberts was an integral part of the Republican legal team assembled to work on the Florida recount, operating as a “consultant, lawsuit editor and prep coach for arguments before the nation’s highest court.”

Roberts was recruited to the team by none other than Ted Cruz, then a young and very conservative Harvard-educated lawyer who, like Roberts, had once worked as a clerk for Chief Justice Rehnquist. In 1999, Cruz hired on with the Bush election campaign as a domestic policy adviser.

By the time Caputo caught up with Cruz in 2005, Cruz had become the solicitor general in Texas, and had earned a reputation as a pugnacious litigator, arguing nine cases of his own before the Supreme Court.

Contacted by Caputo, Cruz said that Roberts spent “a week to 10 days” in the Sunshine State working on the recount. According to Caputo, Roberts traveled from D.C. to Tallahassee to advise Gov. Jeb Bush on his options for certifying the outcome of the Florida vote, and later participated in what Caputo termed “a dress rehearsal to prepare the Bush legal team for the U.S. Supreme Court.”

Asked at his confirmation hearing about his views on Bush v. Gore, Roberts declined to comment, remarking, “Well, that’s an area where I’ve not been—I’ve not felt free to comment whether or not I agree. …”

On September 29, 2005, the full Senate confirmed Roberts as the 17th chief justice of the Supreme Court by a vote of 78 to 22. Since then, Roberts has proven time and again to be an enabler of GOP-inspired voter suppression.

In 2008, Roberts joined in the court’s 6-3 ruling (*Crawford v. Marion County Election Board*), upholding Indiana’s voter ID law. The ruling set the stage for restrictive voter ID laws in other states.

In 2010, Roberts joined the 5-4 majority opinion written by Anthony Kennedy in :{Citizens United v. FEC:(style="box-sizing:border-box;outline:none;margin:0px;padding:0px"):}:. The decision opened the door to the formation of super PACs and unlimited spending in federal election campaigns.

In 2013, Roberts returned to the Voting Rights Act, authoring the majority 5-4 opinion in *Shelby County v. Holder*. Regarded by some commentators as of the past 60 years, Roberts’ opinion gutted the act’s “preclearance” provisions, which had required states and localities with a legacy of racial discrimination, mostly located in the deep South, to obtain advance approval from the Justice Department or the courts before implementing new voting laws and procedures.

Roberts’ reasoning in Shelby was both naïve and dangerous.At the heart of his opinion is the view that racism in America is largely a thing of the past. When the Voting Rights Act was enacted in 1965, Roberts wrote, “the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics.” But, he insisted, echoing GOP talking points, “things have changed dramatically” over the past 50 years, and the act’s preclearance procedures were no longer warranted, nor fair to the states that had been required to comply with them.

The impact of *Shelby* on voting-rights litigation cannot be understated. The VRA’s preclearance procedures placed the legal burden of proof in such cases on states and local governments to justify material changes to their election laws. In the absence of the preclearance requirements, the burden of proof falls on victimized voters, not only requiring them to initiate cases, but also saddling them with enormous litigation expenses.

If Roberts never participated in another voting-rights case after Shelby, he still would have secured his legacy as an opponent of free and fair elections. But his work didn’t end with Shelby.

In 2019, Roberts turned his attention to “partisan”gerrymandering, the practice of purposely designing electoral districts so as to advantage one political party over its rivals. Partisan gerrymandering is widespread, and where it exists, it stifles political debate, gives rise to state legislatures and congressional delegations impervious to changes in public opinion, and in states like Wisconsin, permits one party to win a large majority of seats even when it fails to receive a majority of the overall popular vote.

Writing once more for a 5-4 conservative majority in *Rucho v. Common Cause*, Roberts held that issues of partisan gerrymandering are “political questions” beyond the jurisdiction of federal courts.

This year, in the midst of the COVID-19 pandemic, Roberts and his Republican brethren have issued orders in cases from Alabama, Texas, and Wisconsin that have made it harder for voters to cast absentee ballots. And in a case from Florida, the court refused to intervene in a dispute over the right of ex-felons to vote, potentially disenfranchising hundreds of thousands of people with prior convictions in a key battleground state.

So, hold your praise for John Roberts. When it comes to ending the scourge of Donald Trump at the ballot box, he’s not your friend, let alone your savior.

Bill Blumis a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

https://www.alternet.org/2020/08/mike-pence-says-johns-roberts-is-a-disappointment-to-conservatives/

https://www.alternet.org/2020/07/threatening-to-reform-the-supreme-court-worked-for-now/

salon

Last week, the Supreme Court wrapped up its latest term. For progressives, the mix of positive and disappointing rulings demonstrated both the power and the limits of organizing and advocating around the judiciary. Despite a handful of critical progressive rulings, however, the court’s conservative majority remains a co-conspirator in a scheme to sabotage democracy for partisan reasons. And we must not let that reality resign us to a generation of minority rule.

Over the last few decades, the left has largely ceded judicial politics to conservatives. Conventional wisdom held that any discussion of the courts would backfire on Democrats by energizing Republican voters. Fortunately, that outdated view is beginning to erode. My organization, Take Back the Court, is one of several formed during Donald Trump’s presidency and dedicated to rebalancing the judicial playing field.

The momentum for court reform was on full display last week, when Sen. Elizabeth Warren, D-Mass., and a bevy of rising stars headlined a rally that we organized with like-minded partners, Indivisible and Demand Justice. A diverse coalition of advocacy groups recently endorsed court expansion to reverse the 2016 theft of the court, when Senate Majority Leader Mitch McConnell squelched Barack Obama’s nomination of Merrick Garland. Support for the confirmation of Neil Gorsuch and, most especially, Brett Kavanaugh hangs like an albatross around the necks of many key senators.

Our focus on the court is making a difference in Americans’ lives. Chief Justice John Roberts is a shrewd political actor and observer. Make no mistake, data shows that Roberts is every bit as dangerous as his extreme colleagues, such as Clarence Thomas and Samuel Alito. But he also understands that his political and policy aims depend on the Court’s perceived legitimacy, and he is willing to play a long game. The threat of court reform seems to have influenced Roberts’ decisions to reject Trump’s racist repeal of protections for Dreamers, Louisiana’s unconstitutional attempt to dismantle abortion rights, and legalized workplace discrimination against LGBTQ Americans. Each of those rulings was a major victory for fairness, equality and the rule of law. And each could easily have gone the other directionwithout the tireless work of advocates.

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At the same time, several decisions over the last two weeks highlight the grave threat the Supreme Court continues to pose to American democracy. Along partisan lines, the justices rejected pandemic-related voter protections in Alabama and ensured that congressional investigators will not get Mueller investigation documents before November’s presidential election. Justices Roberts and Kavanaugh all but guaranteed that Trump’s financial documents will remain hidden until they can no longer damage him. These decisions are part of a long-term pattern of rulings, such as the infamous Citizens United decision, that corrode democracy for partisan advantage. As America’s demographics change, minority rule depends on institutions like the Senate and the Electoral College and anti-democratic practices like voter suppression, gerrymandering and stealing courts.

Roberts has likened his job to that of a baseball umpire calling balls and strikes. In fact, he more closely resembles the infamous point-shaving ex-NBA referee Tim Donaghy. Roberts gives Supreme Court proceedings the auspices of an honest competition, but the fix is in. The Roberts court has in which conservative donors had a clear interest. The Roberts majority sided with conservative donors in all of them.

Over the last year, support for structural court reform has grown exponentially. Leaders have proffered plans ranging from term limits to rotating justices between the Supreme Court and other federal benches. Many of these ideas have merit, but only one can plausibly rebalance the court after its 2016 theft: adding more seats.

The Constitution prescribes many details of the Supreme Court’s existence. Size is not one of them. Since our founding, Congress has changed the number of justices seven times. The next Congress could simultaneously add seats and confirm judges to fill them. By contrast, other proposals carry implementation lags, during which they could be enjoined and stuck down by the court’s current majority.

The beltway “both sides” class will cry “court packing.” But make no mistake: the court is already packed. How else to describe manipulating the number of justices in 2016 to block the legitimate nomination of Judge Garland?

Still, this is not a tit-for-tat partisan power grab. After adding seats, Congress should enact additional reforms — like term limits — to depoliticize the court, along with pro-democracy measures like the For the People Act (H.R.1). But we cannot simply lodge complaints with the increasingly-biased referees as a narrow faction bulldozes all norms of law and democracy. Democracy cannot survive if only one side plays by the rules — and if only one side is allowed to govern, no matter how voters cast their ballots.

Now is the time to keep fighting back. We are not powerless against this court unless we allow ourselves to be.

justice Roberts took ‘clear swipe’ at Kavanaugh in opinion siding with liberals in religion case: report

Matthew Chapman / Raw Story

On Friday night, the Supreme Court handed down a decision in South Bay United Pentecostal Church v. Newsom, holding that California Gov. Gavin Newsom’s restrictions on church gatherings are not a…

will join barr to stop kamakazi attempt to kill aca in midst of covid?

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https://www.alternet.org/2020/05/chief-justice-roberts-in-the-hot-seat-over-mcconnells-court-packing-scheme/

chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, Judge Sri Srinivasan, has requested an inquiry into whether Senate Majority Leader Mitch McConnell and retired Judge Thomas B. Griffith engineered the latter’s retirement so McConnell could install a protégé. Srinivasan has asked Supreme Court Chief Justice John Roberts to assign the inquiry to another circuit.

This comes as advocacy group Demand Justice calls for a delay in the confirmation hearing of Judge Justin Walker, a former intern of McConnell’s and an extreme partisan who was a fixture on Fox News defending now-Supreme Court Justice Brett Kavanaugh during his show-hearings. “Justin Walker’s nomination was already controversial, but this emerging investigation means an even darker cloud is hanging over his appointment,” Demand Justice founder Brian Fallon said in a statement released following the announcement of the inquiry. Walker’s nomination is controversial because he is not just an extreme partisan but is so woefully inexperienced in conducting law that the American Bar Association deemed him unqualified for the job McConnell handed to him last fall, on the district court where he now serves.

“The hearing on Walker’s nomination should not go forward until we know the truth about what ethical lines Mitch McConnell crossed to get Walker this seat,” Fallon continued. “At the very least, McConnell should come clean about whether and when he contacted Judge Thomas Griffith prior to his sudden retirement.”

McConnell’s court packing efforts have made news before, including his campaign of leaning on Republican federal judges to get them to retire so he can install very young and extreme partisans in their seats. McConnell and Trump have already filled more than one-quarter of the appeals court seats, but McConnell won’t rest until he’s got the maximum possible, even if that means prying out Reagan, Bush I, and Bush II-appointed judges.

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Griffith is a former Senate legal counsel nominated to the appeals court in 2004 by President George W. Bush. Neither he nor McConnell will say whether he is among the judges subject to the pressure campaign led by McConnell. The D.C. Court of Appeals is the second highest court in the nation. It’s the key court for deciding cases relating to the constitutionality of federal rules and regulations and thus the reach of government. It provides a stepping stone both to Supreme Court seats and for some of the most important cases to reach the Supreme Court. Stacking it is as critical to McConnell’s extremist government coup as is stacking the Supreme Court.

“The coordinated manner of Majority Leader McConnell’s involvement in the judges’ decision-making is quite unprecedented and raises significant ethical questions for the judges who heed his advice,” Demand Justice said in its letter requesting an investigation. A “thorough inquiry into the judge’s announcement and scheduled retirement, including when and how the decision to retire was made, and with whose input, is crucial.” Judge Srinivasan apparently is concerned enough to request the inquiry.

“The organization’s request for an inquiry concerns the decision of a judge of this court to retire from service and the resulting creation of a vacancy on this court, which would be filled by a future colleague on this court,” Srinivasan wrote. He added that he made this ruling ruling without “any inquiry by this court into the statements contained in the unverified correspondence or the questions posited by the organization in the correspondence about the possibility of judicial misconduct.” The judge said he was making the ruling public since he wanted to make sure it was clear the concerns about McConnell’s actions were not being ignored, because the questions brought up by Demand Progress “about the possibility of judicial misconduct have been reported in various major news outlets.”

Walker’s hearing is scheduled for Wednesday. It seems unlikely that Moscow Mitch or Leningrad Lindsey Graham, who chairs the Judiciary Committee, will decide to postpone the hearing out of concern about appearances of extreme partisanship. Because it’s McConnell and Graham we’re talking about. Once again, the ball in is Chief Justice John Roberts’ court.

https://www.alternet.org/2020/04/critics-say-expanding-the-supreme-court-might-cause-a-death-spiral-of-democracy-guess-what-thats-already-here/

no lnx

Critics say expanding the Supreme Court might cause a ‘death spiral’ of democracy. Guess what? That’s already here

Written by Salon April 26, 2020

Earlier this month, the U.S. Supreme Court interfered in an election in Wisconsin in yet another 5-4 decision meant to secure an electoral advantage for the Republican Party. Amidst the coronavirus pandemic, a federal district court had granted a one-week extension to Wisconsin’s mail-in ballot deadline. The election included not only Wisconsin’s presidential primary, but also a crucial judicial general election that threatened the GOP’s hold on the state’s highest court. But the Supreme Court overruled the lower court, tossing out thousands of absentee ballots and forcing Wisconsin voters and poll workers to risk exposure to coronavirus. The irony: the justices made their votes in the case remotely.

The Court reasoned that lower federal courts “should not ordinarily alter the election rules on the eve of an election.” This ignored, of course, that a pandemic made the election in question anything but ordinary. Milwaukee, a city of 600,000 people, ordinarily has 180 polling places, but there were just five open on Election Day. Madison, a city of 255,000 people, ordinarily does not experience half of its poll workers missing, as it did that Tuesday. (It was surely not lost on the Court’s conservative majority that these cities ordinarily vote overwhelmingly for Democrats.) And, of course, Wisconsinites do not ordinarily have to choose between risking viral infection or staying home and forgoing their sacred right to vote.

Unfortunately, the Supreme Court’s hostility towards democracy has become ordinary.

Our democracy has been under assault for the past two decades, and the Supreme Court has dealt many of the sharpest blows. Since 2000, the court has ordered the state of Florida to stop counting ballots and handed the presidential election to a Republican who lost the popular vote, gutted the Voting Rights Act, upheld racist voter ID laws in Indiana, allowed a torrent of dark money to flow into our electoral process, and authorized racially biased voter purges in Ohio.

It is time we do something about the Roberts court’s assault on democracy. Expanding the Supreme Court is our only option.

Despite substantial evidence that the Roberts Court and democracy cannot coexist, some are hesitant to embrace “court expansion” — increasing the number of seats on the Supreme Court the next time Democrats control the Presidency, House, and Senate — as a solution. They fear it would cause a “death spiral” in which Republicans would simply expand the court again should they retake unified control. (This, of course, ignores that the Republicans have already altered the size of the court before — in 2016, when the Senate reduced the size of the court to eight for an entire year rather than seat Merrick Garland, Barack Obama’s nominee to replace the late Antonin Scalia. Republicans paid the steep political price of winning the presidency, House, and Senate that fall.)

But court expansion would not cause a death spiral of democracy. That death spiral is already here. And it will only get worse if we do nothing.

The Roberts court — with a majority of five conservative justices, four of whom were appointed by Republican presidents who took office after losing the popular vote — has made it unnecessarily difficult for all voters, especially Democratic voters, to cast their ballot. Justice Roberts famously declared that “things have changed in the South” in his decision striking down key provisions of the Voting Rights Act. Five years later, Georgia’s then-Secretary of State, Brian Kemp, stole an election from Stacey Abrams, a Democrat, by engaging in the exact form of black voter suppression the Voting Rights Act was meant to check. Thanks to the Roberts court, the affront to democracy we saw in Georgia — more than over 1.5 million mostly black voters purged, dozens of majority-black precincts closed, defective voting machines, and four-hour lines to vote in majority-black neighborhoods — was legal for the first time since the era of Jim Crow.

The Supreme Court’s antidemocratic streak reverberates far beyond voting. Thanks to the Roberts Court, our campaign finance system operates so that, overwhelmingly, the candidates who make it onto the ballot and win elections are captured by corporate interests and wealthy donors. This is true of both Democrats and Republicans. These candidates hold views that are out of step with those of the average American, many of whom choose to stay home rather than vote for candidates who are more responsive to their donors than their constituents.

Even if Democrats overcome these hurdles to get more votes, they will be met with structural barriers that will keep them out of power. Thanks to the GOP’s aggressive partisan gerrymandering, Democrats have to routinely produce historic turnout to win House majorities. In 2018, the Democrats’ seven-point win resulted in a 36-seat majority; in contrast, the GOP’s seven-point win in 2010 produced a 49-seat majority. The Senate is even more undemocratic, and only getting worse: Democrats won the Senate popular vote by 9 million in 2018 and lost seats.By 2040, 30% of Americans, people from disproportionately white and rural states, will be represented by 70% of U.S. senators.

Do not expect the Roberts court to level this horribly uneven playing field. It has refused to address even the most blatant examples of partisan gerrymandering: in 2018, the conservative majority declined to intervene against Wisconsin’s state-level gerrymander, which enabled Republicans to win 63 of the 99 state assembly seats with only 44.8% of the vote. Worse yet, it held that partisan gerrymandering was a political question that no federal court is allowed to touch in the future. The court is also likely to rule against measures that would make the Senate less undemocratic, such as granting statehood to Washington, D.C.

Democrats have a bold plan to restore democracy, but it may not pass muster with a hostile Supreme Court. In 2019, House Democrats passed the For the People Act (H.R. 1) to counteract a decades-long conservative assault on democracy. It includes measures like automatic voter registration to add nearly 50 million voters to the rolls, campaign finance reform to reduce the outsize influence of big money, independent redistricting to end partisan gerrymandering, and prohibitions on voter suppression.

But the Roberts court cannot be trusted to faithfully interpret that law. In Husted v. Randolph Institute (2018), the court manipulated the National Voter Registration Act of 1993, a statute meant to expand voter registration, to allow Ohio to purge one million voters, a disproportionate number of whom are black.Given that recent precedent, and the Court’s general antipathy toward democracy, there is every reason to believe that the Roberts court will come up with pretextual reasons to strike down crucial provisions of the For the People Act, which would both bolster our democracy and threaten unified Republican control.

Make no mistake, Democrats want to compete for the support of the American people. Unfortunately, Republicans have shown that their strategy for winning is to cheat. Very recently, President Trump admitted that when more people vote, Republicans lose.

We cannot restore democracy without fixing the Supreme Court. That is precisely why court expansion is so urgently necessary.

Practically speaking, a plan that pairs court expansion with legislation to restore our democracy will naturally provide a bulwark against Republican retaliation. With 50 million voters added to the rolls and fair congressional maps, it would be exceptionally difficult for Republicans to recapture unified control of the political branches and pass their own court expansion bill.

We live in a time of crisis. Aside from the coronavirus pandemic, we have 10 years left to prevent irreversible climate catastrophe. Income inequality is the highest it has been in a century. More than 30 million Americans do not have health insurance, a number that is growing. A woman’s right to choose is constantly being undermined; the Supreme Court could overturn Roe v. Wade tomorrow. More than 2.3 million Americans are incarcerated, while 12 million undocumented people in this country live without legal protection. Millions of LGBTQ people live without protection from employment discrimination under federal law. At least 33,000 people in the United States die each year from gun violence.

Our ability to respond to these crises depends on enfranchising the 53 million eligible voters who cannot or will not participate in our democracy — exactly the sort of measure the Roberts court will not allow.

We face a choice: allow these crises to worsen, or expand the court.

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https://www.alternet.org/2020/04/conservative-supreme-court-justices-tortured-reasoning-in-the-disastrous-wisconsin-case-is-a-thin-excuse-for-their-true-purpose/

https://www.alternet.org/2020/04/the-supreme-court-is-poised-to-extend-gun-rights-at-the-worst-possible-time/

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The Supreme Court is poised to extend gun rights at the worst possible time

Supreme Court of the United States

Written by Bill Blum / Independent Media Institute April 8, 2020

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” —Second Amendment to the United States Constitution

As the deadly COVID-19 contagion sweeps across the country, gun sales are surging, spurred in many regions by panic buying and purchases by first-time firearm owners. Fearful and insecure Americans are taking advantage of weak and ineffective gun-control laws and stocking up, as President Trump might say, “like never before.”

Meanwhile, the Supreme Court is poised to issue its first major Second Amendment opinion in more than a decade in a case that originated, fittingly, in New York City, now the epicenter of the COVID-19 outbreak in the United States. The case—New York State Rifle & Pistol Association Inc. v. City of New York—has the potential to vastly extend the rights of gun owners, and not just in New York, but throughout the entire nation.

At issue is a New York City “rule” (the term the city uses for its local ordinances) that was adopted in 2001 to prohibit residents from transporting licensed handguns beyond municipal limits. The rule was challenged in a federal lawsuit filed in 2013 by the NRA’s New York affiliate and three individuals. A district court judge ruled in the city’s favor in 2015, as did the Second Circuit Court of Appeals in 2018. The Supreme Court, however, agreed to review the case at the NRA’s request in January 2019, and heard oral arguments in December.

The plaintiffs contend that the city’s handgun transportation ban should be declared unconstitutional because it conflicts with the Supreme Court’s landmark 2008 decision on the Second Amendment, District of Columbia v. Heller.

In Heller, the Supreme Court struck down a ban on handgun possession in the nation’s capital, ruling for the first time that the Second Amendment protects an individual right to gun ownership. Deeply controversial and hotly contested, Heller split the Supreme Court along strict ideological lines, and was resolved on the basis of a 5-4 vote of the justices. The late Justice Antonin Scalia’s majority opinion stood the prior judicial consensus on the Second Amendment on its head, rejecting the great weight of prior scholarship and earlier court opinions, including the Supreme Court’s 1939 decision in United States v. Miller, that had construed the amendment as protecting gun ownership only in connection with service in long-antiquated state militias.

Scalia’s opinion was met by a blistering dissent written by Justice John Paul Stevens, who retired from the bench in 2010 and passed away last year. Drawing on a wide array of historical sources, Stevens chided Scalia for ignoring the actual debates that took place during the founding era on the ratification of the Constitution and the drafting of the Second Amendment. Those debates, in Stevens’ view, demonstrated the amendment’s purpose was not to safeguard individual gun rights, but to guarantee the survival of the militias as a “collective right” of the citizenry as an alternative to the creation of a large federal standing army.

Stevens lost the battle of persuasion in Heller, and in 2010, in another 5-4 decision that also featured a Stevens dissent—McDonald v. Chicago—the Supreme Court extended Heller, holding that the individual right to keep and bear arms was incorporated by the 14th Amendment’s due process clause and hence was applicable to the states and local governments. The Second Amendment, as interpreted by Scalia, thus became the law of the land.

Although Scalia and Stevens are no longer with us, the ideological divisions they represented remain on the Supreme Court today. Indeed, when it comes to gun rights, the current court is even more conservative than it was in 2008. Justices Neil Gorsuch and Brett Kavanaugh, both appointed by Trump, are outspoken proponents of Scalia’s vision of the Second Amendment. And the tribunal’s remaining conservatives—Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito—participated in Heller and joined Scalia’s majority opinion.

Still, Heller by no means precluded all measures of gun control. As the Second Circuit noted in its evaluation of the New York handgun transportation ban that is now before the court, Heller was technically limited to possession of guns in the home, and established no clear limits on legislation aimed at regulating gun rights outside of the home.

“Like most rights,” Scalia wrote in Heller, “the right secured by the Second Amendment is not unlimited… [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

And in an enigmatic footnote to the above paragraph, Scalia added: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”

Adhering to Scalia’s reasoning, in the years following Heller, lower courts have upheld a broad range of state and local gun-control regulations, a dynamic that has prompted the NRA and other gun-lobby groups to urge the Supreme Court to take up another Second Amendment appeal to reaffirm the amendment’s importance and place stricter limits on gun control. They may have found the perfect test case in the New York transportation ban. Like Heller, the New York ban concerns an outright prohibition, which will be hard, if not impossible, to justify before the court’s conservative majority.

Realizing it would likely lose the case, New York City amended its transportation rule in June to permit residents to take their handguns to second homes, businesses or shooting ranges outside city limits. And in July, the city filed a formal motion with the Supreme Court, requesting that the case be dismissed as moot. The court denied the motion in October, setting the stage for another Second Amendment showdown.

In December’s oral arguments, the city again asked the court to moot the case. The city made no attempt to defend the transportation ban.

Unfortunately, given the city’s capitulation and the Supreme Court’s right-wing orientation, the only real remaining question is the scope of the NRA’s inevitable victory. Even if the court reconsiders the city’s request and enters a dismissal order, the NRA will walk away with a significant win, having forced the city to rescind one of the most stringent gun-control laws in the country. On the other hand, a decision on the merits on constitutional grounds in the NRA’s favor would reward the organization with an even bigger triumph, endangering gun-control laws everywhere.

A nation awash in firearms in the grip of the COVID-19 pandemic awaits the court’s decision, which is expected by the end of June.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

This article was produced by the Independent Media Institute.

https://www.alternet.org/2020/04/conservative-supreme-court-justices-tortured-reasoning-in-the-disastrous-wisconsin-case-is-a-thin-excuse-for-their-true-purpose/

trms had head of legis in full ppe saying perfectly safe mofo

republicans can’t seem to help themselves from weaponizing this public health crisis to advance their own self interest and cement their grip on power. And they’re getting help from right-wing judges – including the far-right majority on the U.S. Supreme Court!

Yesterday, the Wisconsin GOP – with the help of the right-wing majority on the Supreme Court – forced Wisconsin voters to choose between risking their health and the health of others and exercising their right to vote ... during the pandemic ... with the number of polling places drastically reduced so, for instance, voters in Milwaukee, who usually have nearly 200 polling places, would have to crowd into FIVE.

https://www.alternet.org/2020/04/why-the-supreme-court-and-the-coronavirus-could-be-a-lethal-combination-for-the-right-to-vote/

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https://www.alternet.org/2020/04/how-the-war-against-voting-rights-became-a-pillar-of-the-conservative-agenda/

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How the war against voting rights became a pillar of the conservative agenda

Written by Nancy LeTourneau / Washington Monthly April 1, 2020

Included in the stimulus bill put together by Speaker Nancy Pelosi and House Democrats was a provision that established “a national requirement for both 15 days of early voting and no-excuse absentee vote-by-mail.” That one apparently got under Trump’s skin.

Trump openly admitting if we made voting easier in America, Republicans wouldn’t win elections

Trump: “The things they had in there were crazy. They had levels of voting, that if you ever agreed to it you’d never have a Republican elected in this country again.”pic.twitter.com/x5HmX6uogo

— Lis Power (@LisPower1) March 30, 2020

Trump basically admitted that if more people voted, “you’d never have a Republican elected in this country again.” A lot of people assume that he said the quiet parts out loud when it comes to Republican efforts to suppress the vote. But just as Trump represents the culmination of many of the foundational principles on which the modern-day GOP was founded, the party has demonstrated over time that they aren’t particularly fond of democracy.

As Katherine Stewart documented in her book, The Power Worshippers, Paul Weyrich is often credited as the founder of the modern-day conservative movement. Even though he was not a particularly religious man, he developed a coalition between Goldwater Republicans and the religious right, which became the base that has elected every Republican president from Ronald Reagan to Donald Trump.

Here is something Weyrich said at a gathering of religious leaders back in 1980.

Weyrich clearly stated that he didn’t want everyone to vote. He went on to say that, for Republicans, “our leverage in the elections, quite candidly, goes up as the voting populace goes down.” That was basically an admission that the majority of Americans don’t support Republican principles.

As far back as 1980, the whole idea of a so-called “moral majority” was a lie—and people like Weyrich knew it. Rather than attempt to reflect the will of voters, Republicans simply decided that, as Zachary Roth put it, “being outnumbered doesn’t have to mean losing.” Voter suppression was therefore embraced as a conservative principle.

More recently, Ari Berman documented the decades-long battle against the Voting Rights Act that was waged by our current Chief Justice of the Supreme Court—John Roberts. The seeds of that battle were planted while Roberts served as a clerk for Supreme Court Justice William Rehnquist, as well as his time in the Reagan Justice Department. It culminated in the Shelby vs Holder case when the Court overturned key elements of the Voting Rights Act, leading to a new wave of voter suppression efforts in the states.

Last year, when House Democrats passed a bill that included democratic reforms to campaign finance, ethics and voting rights, Majority Leader Mitch McConnell said the quiet parts out loud when he called them a “Democrat Politician Protection Act.” Once again, the inference is that, if more people vote, Democrats will be elected.

Those are just a few examples from the last forty years. But since our founding, rich white men have tried to limit the franchise to themselves. Here’s what Roth wrote about Alexander Hamilton’s only major speech at the Constitutional Convention in Philadelphia.

Hamilton said the system should allow the “rich and the well born” to maintain their supremacy, since they would oppose radical change pushed by “the many.” The goal, he said, was to “check the imprudence of democracy.”

It is only through the blood, sweat, and tears of various movements that voting rights have been expanded in this country as a foundational principle of democracy. Obviously, that battle still rages on.

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https://www.alternet.org/2020/03/bill-moyers-and-dahlia-lithwick-break-down-how-the-courts-have-proven-they-have-trumps-back/

Bill Moyers and Dahlia Lithwick break down how the courts have proven they have Trump’s back

President Donald J. Trump, Judge Brett M. Kavanaugh and Anthony M. Kennedy, retired Associate Justice of the Supreme Court of the United States, walk together Monday, Oct. 8, 2018, to the East Room of the White House in Washington, D.C. (Official White House Photo by Joyce N. Boghosian)

Written by Bill Moyers / BillMoyers.Com March 24, 2020

Dahlia Lithwick: Hi there.

Bill Moyers: Greetings, Dahlia. How are you?

Dahlia Lithwick: Hi, how are you? I’m okay.

Bill Moyers: No fever, coughing or sneezing?

Dahlia Lithwick: Coughing and sneezing, but no fever and none of the other alarm bells, so I’m just sitting tight.

Bill Moyers: I appreciate your joining me.

Dahlia Lithwick: Of course.

Bill Moyers: I guess you won’t be hanging out at the Supreme Court anytime soon, right?

Dahlia Lithwick: No. No, they’re not hanging out there either, so. It’s really unprecedented to just scuttle arguments. Justice Ginsberg is 87, so I think it is for the best. But it is really extraordinary times that we are living through.

Bill Moyers: Yeah, I remember something you said, “If ever there was a time for the American legal profession to put down its yellow pads and stand up for the rule of law, it’s today—”

Dahlia Lithwick: Yeah, after Donald Trump was elected, I felt so strongly that lawyers were gonna be the bulwark, that it was clear that he was gonna be assailing the rule of law, and then I really believed that lawyers were going to find lines that couldn’t be crossed.

And that the United States was a country that was built on the proposition that there is no king, and that you have nothing if you don’t have the rule of law. I mean, I think I really believed all that. And who are the gladiators in that fight if not the lawyers?

I did expect that lawyers would be on the front lines. And I watched the day of the travel ban a week after the inauguration — it was the lawyers who ran out to the airports. It was the lawyers who parked themselves at the baggage claims [and] held up signs that said, “I’m just a tax attorney, but I’m here to help you get into the country–” I mean, I really thought that was setting a precedent wherein the lawyers were always gonna be the first ones out. And I’m not sure that materialized the way I expected.

Bill Moyers: If lawyers are failing us, where are we?

Dahlia Lithwick: I think there are so many component pieces of that. I think that you can look at the Mueller Report and the ways in which the findings of that report were distorted by Donald Trump’s own attorney general to imply that nothing had gone wrong.

I think you can look at declarations of emergency at the border last year, where no emergency existed, just to get funding that Congress had already said they were declining to offer. The travel ban itself. One after another, actions taken that really pushed the boundaries of what the executive branch can do.

And just the sort of dispiriting ways in which the Justice Department has doubled down on pressing some of those truly lawless actions, and so we saw Bill Barr at the highest levels of the Justice Department interfere with the Roger Stone sentencing.

This was unprecedented. Nobody had ever seen the president by tweet say, “Maybe we should change the sentence,” and have Bill Barr and very, very senior members of the Justice Department intervene — where line prosecutors had been working on this case for years. And I think we saw on that day, we saw four DOJ (Department of Justice) lawyers walk away from the case, one from the Justice Department, rather than be involved in that prosecution anymore.

But I think it can’t be these tiny little acts of resistance. It really does require the kinda thing that I think we saw in the days following, where we had thousands of prosecutors signing memos and immense numbers of former Justice Department officials saying, “We can’t proceed this way.”

But I think maybe the answer to your question is that so much of the rule of law, as it turns out, was built on soft norms, not on regulations and statutes and constitutional directives. And I think that we all think that this machinery is more robust than it really is. It turns out it’s tissue thin if we don’t fight for it.

Bill Moyers: I used to think that norms were sort of the unwritten Constitution like English procedures and propriety. But that doesn’t seem to hold up anymore.

Dahlia Lithwick: I remember when Merrick Garland was denied a hearing or a vote or even courtesy meetings in the Senate. And I thought, at the time, this is a norm. It is a norm that the president gets to put up a nominee, and that person gets a hearing and a vote. And I think that, time and time and time again in the last few years, I’ve found myself answering these questions about how can this be happening? How can Bill Barr personally intercede in the Roger Stone sentencing?

I think the answer is those were a bunch of norms that were put together post-Watergate. They never had the force of law. It was a set of decisions that this is how the polity would thrive post-Watergate. And I think it’s just such a chilling lesson for all of us that this is a series of gentlemen’s agreements about how we conduct ourselves; it’s not the law.

Bill Moyers: In the meantime, as you’ve written, Trump has weaponized the law in several ways. Talk about that for a moment.

Dahlia Lithwick: Well, I think the most chilling [thing] that we are seeing now is certainly the use of his own Justice Department to go after anybody who’s been disloyal. And also, as we just mentioned, using the Justice Department to exculpate, whether it’s through a lighter sentence for Roger Stone, or using his pardon power to pardon people like Joe Arpaio right at the very beginning.

Trump: I stand by my pardon of Sheriff Joe and I think the people of Arizona who really know him best would agree with me.

Bill Moyers: Arizona Sheriff Joe Arpaio who took a hard-line against immigrants.

Dahlia Lithwick: Who had people in camps dying on his watch, who had this hard-line, anti-immigrant worldview that was so brutal — that there was no question that what he was accused of doing, he had done. And I think that time and time and time again, we’re seeing Donald Trump use the pardon power to say, “There’s really no such thing as white collar crime. There’s no such thing as being too hard on illegal immigrants. There’s no such thing as being — whatever it is that he himself — sometimes — engages in.”

And I think that, in addition to really kind of rejiggering the entire Justice Department so that it seems as though it answers to him personally, I mean, that’s always been his worldview. He wanted an attorney general and he complained about Jeff Sessions, that Jeff Sessions wasn’t loyal, and he wanted Jim Comey to be loyal. Even Don McGahn, his White House counsel, who ended up leaving, was not sufficiently loyal.

And I think he’s really got a notion that he’s like a Nero character — an emperor — and that the law works for him and responds to him. And in so many different configurations, we’ve seen him rescinding DACA by tweet. Making decisions about the dreamers thousands and thousands of dreamers on a whim. Making decisions about “don’t ask, don’t tell” on a whim.

And then we have the entire apparatus of government scurrying to effectuate that, to make it happen for him. But I guess the paradox is not just that he’s weaponized the rule of law, but that the rule of law has rushed to meet him, and to bolster his notions that he is above the law.

Bill Moyers: How do you battle with someone who thinks the law is just a win-or-lose game? And a commodity you can buy and sell? How do you deal with that? How do we fight back?

Dahlia Lithwick: One of the most revelatory books I’ve read this year is by an attorney whose name is Jim Zirin. He has a book out that talks about all the ways in which Donald Trump as president is behaving exactly the way Donald Trump as quote/unquote real estate mogul behaved.

There was a playbook, and it long predates the presidency. This was, believe it or not, the Roy Cohn playbook that goes all the way back to Donald Trump and his dad when they were accused of racist practices in rentals long ago. And it’s a really useful sort of road map to know what the behaviors are. And the behaviors are pretty typical if you are a real estate, very, very wealthy real estate mogul because it’s the same things over and over: It’s sue everybody, chill people from coming forward by terrorizing them. Make sure that your plaintiffs are subject to heinous, horrific abuse, repeated abuse, until they can’t [fight back] anymore.

Bill Moyers: And at the right time, to your advantage, you walk away from the mess you’ve created, declare bankruptcy, and leave the laborers, the contractors, the everyday workers, the creditors to bear the costs, right?

Dahlia Lithwick: Just bury them in litigation, bury them in discovery so that they don’t wanna go forward with the lawsuits. File all sorts of frivolous, frivolous claims, knowing that at some point, you’re just exhausting the other side. I mean, these are just the ways that this person who in his capacity as Donald Trump before he was president just used the levers of the legal system constantly.

He would be sued. He would have people who did work on his properties that he never paid. Trump University, the casino bankruptcies, every one of these lawsuits — he just fought back by hiring armies of lawyers who did what he said. And you’re quite right. The cost of picking up the debris afterwards, whether it’s Trump University or Trump steaks or whatever the detritus is, that’s not on the rich guy. That’s not on his lawyers. They profit either way.

That is exactly how he uses his private attorneys. That’s how he was using Rudy Giuliani, to go and stir up dirt and all sorts of false claims about Joe and Hunter Biden in Ukraine. So he has a very myopic kind of transactional view of lawyers are his — they’re his plumbers. They get the job done.

Bill Moyers: And they’re well paid for it.

Dahlia Lithwick: We’re learning there are many fundamental flaws in the system of capitalism that we have tethered ourselves to. But one of the flaws is that, for a very, very long time, rich men — whether it was Harvey Weinstein or Donald Trump — very, very rich men were able to surround their selves with armies of loyal attorneys who would do whatever they were asked to do. And that’s exactly how he’s trying to use his Justice Department today.

Bill Moyers: When a president takes his playbook from a crooked lawyer like Roy Cohn in the 1970s and uses it to run the United States government today, what are we supposed to do?

Dahlia Lithwick: It’s such a different paradigm because every president, whether or not you agreed with George Bush, used his White House counsel in certain ways, [and] used the Justice Department and his attorney general in certain ways. But [now] we have a president who simply just indefatigably using his lawyers to beat up the weak and to protect his own usually financial interests. And so there’s not a model on a big constitutional scale for what you do when the president wanted a Roy Cohn, got a Roy Cohn in Bill Barr, and is proceeding to just break stuff.

Bill Moyers: Has it occurred to you that the president prefers to govern by chaos, I mean, it detracts journalists from covering other things he’s doing. I’m reaching right now on my desk for a story I read just this morning in CounterPunch. The headline is, “The Supreme Court is set to strike a major blow against social and environmental protections.” It would amount to the evisceration of regulations that protect our health and safety as citizens. Did you know about this? Are you aware of this?

Dahlia Lithwick: Yeah. This is part of a really — and you’re so right. This is happening almost in the dark of night. It’s happening on page A12, if there at all, because page A1 is the chaos. And way, way back, under the fold in the middle of the paper, there is this stealth attack on government agencies and their ability to regulate themselves. And you’re also quite right, it is happening, at the U.S. Supreme Court under our noses. And, what you’re describing is the sort of ascendancy of what was once a kind of fringe theory that Justice Antonin Scalia put forth about agencies and the limits on their power. And this idea of the unitary executive, that every single thing in the executive branch is subordinate to the president.

That was a crackpot idea once upon a time. And you are quite right, it is pushing its way into the very epicenter of several arguments that the Court is hearing this year. And this idea that — it’s called technically the nondelegation doctrine, and it essentially says that we can gut agency authority, for instance the Clean Air Act, the Clean Water Act. We can gut agencies’ ability to have kind of ongoing oversight of problems.

It was once seen as a really fringe idea that is now being used. I think Justice Elena Kagan has described it as it is going to be used to end government as we know it.

Bill Moyers: She’s actually said that the conservative majority will eventually essentially rule that, quote, “Most of the government is unconstitutional.” And it makes me think, and I wonder if it does you, that the right wingers on the Court were put there to enact the Republican platform into law.

Dahlia Lithwick: It’s such a good question and it’s funny because it gets ignored. We get very, very focused, I think, on Neil Gorsuch and Brett Kavanaugh and questions of abortion, and maybe to a lesser degree questions of religious liberty, right? The Hobby Lobby questions about whether religious dissenters can be forced to do things they don’t want to do.

But I think you’re exactly right, that simmering under those issues both Kavanaugh and Gorsuch were quite openly kind of auditioning to be on the Supreme Court with their writings, very explicit writings in the vein that you’re describing. Writings that would seek to do away with the administrative state, do away with the power of government regulatory agencies, whether it’s the (CFPB Consumer Financial Protection Bureau) or the EPA. Efforts to essentially say all of those agencies answer to the president and he can hire and fire at whim. And he can constrain their authority at whim.

That was not a stealth campaign. They were doing that, both justices — Gorsuch and Kavanaugh — were doing that very, very openly, talking about those things. And I think you’re quite right, we got very, very hyper-focused in both of their confirmation hearings on other issues, equally important issues. But I think we looked away from their records on hobbling federal government as we know it. And you’re quite right, I think they were put on the Court to do just that. And we’re seeing, in two short years, they are doing just that.

Bill Moyers: Brett Kavanaugh wrote last year in favor of forbidding Congress from allowing federal agencies, quote, “To exercise regulatory authority over a major policy question of great economic and political importance.” But I thought Congress was supposed to deal with questions like that. What do you make of this?

Dahlia Lithwick: What I make of it is exactly the words you just said, which is this would give the Supreme Court itself authority to say, “Yeah, we just don’t like these regulations. These ones are not good. This agency isn’t right.” And to really eviscerate the regulatory state as we know it. And this goes way beyond the 2020 election. If you have a 5-4 majority on the Court that really believes that using these kinds of doctrines to chip away at agency power, this is going to be kind of sealed into the mix for decades.

Bill Moyers: So you’ve written, Dahlia, about how, in recent years, the Supreme Court has issued ruling after ruling awarding more power to large corporations. This would be the biggest payoff ever to the big businesses, wouldn’t it? I mean, the Republican-controlled Court would have a veto power over all federal regulations?

Dahlia Lithwick: It’s unbelievable. And again, I think it is a pincer when you look at it — twinned with — the issues you’re talking about where, the Chambers of Commerce and big, big corporations have never won the way they’re winning now. Their win rate in the John Roberts court is like nothing we have seen since before the New Deal.

And so I think what you’re seeing is, on the one hand, gutting of unions which this Court has been involved in. Giving huge rights to corporations, whether it’s Citizens United or Hobby Lobby. This slow progression of doing away with workers’ rights and protections for the little guy, protections in all sorts of contexts.

And, at the same time, as you say, the cherry on top is doing away with agency regulations that regulates big businesses. And these big business cases, whether they’re affording huge new rights to businesses, or big wins to businesses that are trying to fight back any attempt to cabin corporate power and union power.

The Clean Air Act, the Clean Water Act, the CFPB — any of these agencies — can be just tossed away at the whim of the Court. Those two things together are a huge, huge boon for business, and they are massively costly, not just for workers, but for the environment, and for women’s rights, and for the rights of the elderly. So many entities that are not afforded protections when the Court is only looking out for corporations...

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trump goes after soto and rbg? roberts sez nothing, then schumer ~ bret and gorsuch

Chief Justice Roberts lets Senate Republicans show blatant disdain for impeachment proceedingsJoan McCarter / Daily Kos

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Legal scholar argues the Supreme Court is ‘killing’ the bedrock of campaign finance law — and may soon crush it completely

An Alaska law that caps campaign contributions from individuals to…

https://www.alternet.org/2019/12/legal-scholar-argues-the-supreme-court-is-killing-the-bedrock-of-campaign-finance-law-and-may-soon-crush-it-completely/

no lnx

Legal scholar argues the Supreme Court is ‘killing’ the bedrock of campaign finance law — and may soon crush it completely

Written by Cody Fenwick December 31, 2019

An Alaska law that caps campaign contributions from individuals to candidates at $500 is facing a legal challenge that has made its way to the Supreme Court. While the Ninth Circuit upheld the law, the justices have told the lower court to review the decision again while applying a previous precedent from the case Randall v. Sorrell — a ruling that struck down low limits on campaign contributions.

In a recent post on the Harvard Law Review blog, law professor Ciara Torres-Spelliscy argued that the Supreme Court appears primed to use the case to severely weaken campaign finance law — and perhaps kill contribution limits altogether.

Reacting to the court’s decision to send the Alaska law back to the Ninth Circuit for review, she wrote: “This likely portends the Ninth Circuit reversing itself, or, if it sticks to its guns, then Thompson v. Hebdon may make a round trip to the Court where the Roberts Court would likely reprise the wrongly decided Randall and strike Alaska’s contribution limits, possibly taking with it all states’ contribution limits.”

This falls in a pattern of the Supreme Court under Chief Justice John Roberts pushing to deregulate corruption, as Torres-Spelliscy has argued.

And even the standard that existed before the 2006 Randall ruling was unreasonably strict. Previously, the Supreme Court had ruled in the 1976 Buckley v. Valeo that while it was constitutional to limit how much individuals could contribute to campaigns, it was not permissible to limit campaigns’ expenditures. Campaign finance reform advocates had been hoping to overturn that precedent, but their hopes were dashed.

Now things could get much worse. And according to Torres-Spelliscy, the Court’s apparent justification for seeking to cut down campaign finance laws is at odds with the empirical evidence.

She explained:

The decision in Randall was based in part on the Supreme Court’s assumption that lower contribution limits would hamper electoral competition and especially hurt challengers. But the Supreme Court made this assumption without the benefit of data that tested this empirical point. Post-Randall, I help co-author a study that looked at precisely this issue. The study examined elections in forty-two states over twenty-six years for lower house legislative races. The study showed that lower contribution limits actually boost electoral competition and assist challengers—likely because incumbents were unable to amass as big war chests to either scare off or out-maneuver would-be challengers. Analysis by the National Institute on Money in Politics in 2018 looking at data from Vermont from 2000 to 2016 confirmed that higher contribution limits hurt electoral competitiveness—the opposite of what the Supreme Court assumed in Randall. But in the area of campaign finance, facts have been relegated to an unexamined dusty shelf.

If the Supreme Court takes the route she’s expecting, she believes other campaign finance laws will quickly face a wave of new lawsuits from opponents hopeful that the justices will favor their cause.

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speculative?

Republicans won’t be able to override ‘wild card’ Chief Justice Roberts during impeachment trial — here’s why

Sarah K. Burris / Raw Story

Republican Senators have already bragged that they have no intention of listening to the evidence against President Donald Trump.

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1219

forced sonogram, must view

Supreme Court’s newest move on abortion approves torture for pregnant peopleCommon Dreams

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yikes, does not bode well for 2020?

10/19

https://lawandcrime.com/high-profile/supreme-court-vacates-ruling-finding-michigan-unconstitutionally-gerrymandered-congressional-districts

United States Supreme Court on Monday cancelled a federal court’s decision, which found Michigan’s congressional voting districts were unconstitutional because they were gerrymandered to such a degree that it violated voters’ First Amendment rights and the Constitution’s Equal Protection clause.

Gerrymandering is the setting of electoral boundaries to favor the political interests of the party in power.

A three-judge panel on the U.S. District Court of the Eastern District of Michigan ruled in April that 34 of the state’s voting districts were specifically designed to disadvantage Democratic voters, deliberately diluting the power of their vote to ensure a particular partisan outcome. The panel’s ruling ordered the state to redraw the voting district maps, calling partisan gerrymandering a “pernicious practice that undermines our democracy.”

The order was expected in light of the Justices June decision in Rucho v. Common Cause, a landmark decision which greatly reined in federal court’s ability to intervene in political gerrymandering cases. The Court ruled that the partisan gerrymandering issue was “beyond the reach of federal courts.”

In a 5-4 vote along ideological lines, Chief Justice John Roberts invoked the court’s Political Question doctrine in finding it constitutionally permissible for voting districts to be drawn with the specific intent to disadvantage voters of a particular political ideology. The ruling was seen as a severe blow to voting rights advocates challenging the disproportionate impact gerrymandering can have on voting power.

Roberts reasoned that the question before the court– “determining when political gerrymandering has gone too far”– could not be grounded in a “limited and precise rationale” because the issue “lacks judicially discoverable and manageable standards for resolving.”

He conceded that the ruling may enable increasingly inequitable political representation, but said that such a result does not violate any constitutional mandate where no standard for determination exists. Roberts did not prevent the court from intervening in cases of racial gerrymandering.

Justice Elena Kagan wrote a scathing dissent in which she called the majority’s decision a low-point for democracy.

“I think it important to underscore that fact: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is ‘incompatible with democratic principles,’” she said from the bench.

Scotus Orders by Law&Crime on Scribd

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1019 an common dreams

...Return on Investment: Business Friendly Courts

https://www.alternet.org/wp-content/uploads/2019/10/2-1170x907.png oops

https://www.alternet.org/wp-content/uploads/2019/10/5-1170x927.png

It is very important to understand that for big business, campaign and lobbying expenditures are investments. Big business expects—and receives—a very good return on these investments. One important return is stacking the court system with pro-business justices who will likely uphold the big business policies passed by Congress and signed by the president. Since big business is closely tied to the Republican Party and has a number of corporate Democratic friends, it plays a critical roll in the choice and appointment of federal court judges. For example, the current Supreme Court is famously divided along party and ideological lines with five justices nominated by Republican and four by Democratic presidents. Many cases are decided along ideological lines—however, this is not the norm for cases involving big business interests. Tellingly, the Chamber of Commerce endorsed eight of the nine current justices. Thus, it should not come as a surprise that Supreme Court justices often put aside their ideological differences to unite in favor of big business interests. For example, the U.S. Chamber of Commerce (the largest big business lobby) filed 14 briefs during the 2017 term and won 11 while losing three. During the 2018 term, the Chamber filed 10 briefs and won nine of them—six of the nine Chamber wins were decided by margins of 9-0 and 7-2. The following chart illustrates how the Supreme Court has increasingly tilted in favor of big business.

One of the biggest wins by big business over the last decade was the Citizens United v. Federal Election Commission case decided in 2010 by an ideologically divided court. In this case the Supreme Court majority not only re-enforced the counterintuitive theory that corporations are people but also further institutionalized the contention that corporations have many of the same rights as actual human citizens. For example, in Citizens United, the Supreme Court majority reinforced and strengthened previous decisions (based on the 1976 Buckley v. Valeo decision) contending that spending money on political campaigns is a form of free speech protected by the First Amendment. The Citizens United decision specifically prohibited the government from restricting independent expenditures for political communications by corporations, nonprofit corporations, labor unions, and other associations. Basically, the Supreme Court ruled that money spent on politics is an expression of free speech and cannot be limited by Congress. Since big business and the wealthy spend much more money on politics, they have much more free speech than the rest of us.

Return on Investment: Massive Transfer of Income and Wealth...

719 an

gop hypocr

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Bad faith in the courts: A prelude

Those are some highlights of how we’ve gotten here, but none of that can explain what’s happening in the courts. Indeed, for a long time the courts seemed to pose a kind of limitation on bad faith. As Maxwell put it, “When you get court and you try to justify your argument, it looks contrived. Because false equivalencies and bad faith arguments rarely stand up to logic and reasoning.”

But the census case itself is proof of how determined Republicans are to push on this front — and how close they’ve come to success. As Adam Serwer noted before Trump threw in the towel, “Again, this is not just Trump. The Republican establishment is urging the president to do everything he can to reestablish the foundations of white man’s government.”

To understand what’s happening in the courts, I think in terms of layers: There’s an asymmetry in our politics that shapes an asymmetry in our courts. As mentioned above, Goldwater’s capture of five Deep South states in 1964 provides a peek at how bad faith spreads in this environment.

Public opinion pioneers Lloyd Free and Hadley Cantril fielded a study that year, with results published three years later in “The Political Beliefs of Americans.” Their most striking discovery was a profound division: On the symbolic and ideological level, Americans lean more to the right, favoring “free markets” and “small government.” But they lean even more strongly to the left when it comes to operational details — support for specific spending programs. In fact, they found that 23% of all Americans were both ideologically conservative and operationally liberal, a condition they called “almost schizoid.”

What’s usually overlooked, however, is that this figure doubles to 46% within the Deep South states that Goldwater won. There are both good-faith and bad-faith ways of dealing with these contrasting views. A good-faith way would be to say, “I’m in favor of the free market and limited government, but when the market fails government action is absolutely essential.” A bad-faith way would be to say: “Welfare only helps the undeserving — and by the way: Keep the government’s hands off my Medicare!” Guess which one you hear most often? It’s no surprise the South was a Petri dish for cultivating bad-faith narratives.

Republicans naturally focus on the ideological and symbolic side, while Democrats focus on operational specifics, which is a key component of Matt Grossmann and David A. Hopkins’ book “Asymmetric Politics” (Salon review here.) The lack of symmetry between Democrats and Republicans is also reflected in clashes over constitutional norms, producing what Joseph Fishkin and David Pozen describe as “Asymmetric Constitutional Hardball” (Salon story here.)

“Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings,” they wrote. A followup paper, “Constitutional Hardball vs. Beanball,” by Jed Shugerman (Salon story here), introduced the element of bad faith into the mix.

“You have another category of hardball,” Shugerman told me: “Bad-faith hardball,” in contrast to “transparent hardball”:

The confirmation of Justice Neil Gorsuch was an example of “good-faith hardball,” Shugerman said. Republicans “decided to get rid of the [Senate] filibuster because they want to get him through, but everyone sees it happening, and it’s not being constructed by a lie.” But Mitch McConnell’s Senate blockade of Merrick Garland, Barack Obama’s final Supreme Court nominee, was “bad-faith hardball,” and the battle over the Kavanaugh confirmation was “bad-faith beanball.”

So what seems a relatively simple story of bad faith as an important thread within the larger story of asymmetrical politics begins to get far more complicated. I reached out to David Pozen, one of the authors of “Asymmetric Constitutional Hardball,” to ask whether the doctrine of constitutional “originalism” was in essence a bad-faith rhetorical framework, meant to delegitimize “judicial activism” by liberals or progressives while justifying it for conservatives.

“We could talk for hours about that,” Pozen said quoting his own prior article on “Constitutional Bad Faith.”

“In a nutshell, I agree that ‘bad faith arguments have been used continuously to delegitimize liberal/progressive jurisprudence.’” To cite an infamous example, he said, “The majority opinion in Bush v. Gore seems to me to be drenched in bad faith. … Bad faith is all over the place in constitutional law — so much so that the most interesting question is often not whether bad faith is present but bad faith of what kind.”

One of the main accomplishments of Pozen’s paper is to develop a taxonomy or field guide of constitutional bad faith, organized on two levels: three broad, generic varieties, and 10 more precisely-defined species. In his introduction, Pozen writes:

Typically associated with honesty, loyalty, and fair dealing, good faith is said to supply the fundamental principle of every legal system, if not the foundation of all law. With limited exceptions, however, good faith and bad faith go unmentioned in constitutional cases brought by or against government institutions. …

This doctrinal deficit is especially striking given that the U.S. Constitution twice refers tofaithfulness and that insinuations of bad faith pervade constitutional discourse. … [I]n spite of, and partly because of, their uneasy status within the courts, these norms perform a variety of rhetorical and regulative functions outside the courts.

Varieties of constitutional bad faith

At the top level, Pozen distinguishes between three main types of bad faith: First comes subjective bad faith, which “may involve the use of deception to conceal or obscure a material fact, a malicious purpose, or an improper motive or belief, including the belief that one’s own conduct is unlawful.”

He identifies four species of subjective bad faith, starting with “facially neutral government actions that are in fact based on illegitimate motives or purposes,” which might describe Trump’s citizenship census question — if, that is, there were anything “facially neutral” about it.

Second comes objective bad faith, which, drawing on American contract law, “focuses not on the actor’s state of mind but instead on the fairness or reasonableness of her conduct, tested against the norms of a legally relevant community.” In the constitutional realm, Pozen notes, “Many disputes over objective bad faith in constitutional politics concern the interactions among the various institutions of government and a claim of unfair dealing.”

Again, he identifies four species, starting with “unwillingness to compromise or negotiate across branch or party lines,” which has become increasingly characteristic of our politics over the past quarter-century. Trump may be ruder than most, but he’s hardly exceptional. McConnell’s refusal even to consider the Garland nomination was a classic example.

Third comes something more subtle: Sartrean bad faith, “a lie to oneself.” (A reference to Jean-Paul Sartre’s classic of existential philosophy, “Being and Nothingness.”) The distinction from subjective bad faith is crucial: “A person in subjective bad faith necessarily understands that she is being insincere, or untruthful in her dealings. A person in Sartrean bad faith may not similarly appreciate that she is being inauthentic, or untruthful toward herself.”

More concretely, Pozen writes, “The waiter in the café who identifies completely with his role and ceases to see that he is playing at being a waiter, to take Sartre’s best-known example, is in the latter sort of bad faith. So is the patriot who manipulates standards of evidence or assessment to sustain a conviction that her own government is uniquely virtuous.”

As Pozen explains, this form bad faith tends to take one of two forms, which in turn give rise to specific forms of constitutional bad faith. Stick with me; this isn’t easy material:

“Sartrean bad faith revolves around lies that deny either the full measure of one’s freedom (‘transcendence’) or the concrete details of one’s circumstances and constraints (‘facticity’).” The first of these gives rise to “necessitarian assertion[s] about what the law ‘must’ mean,” while the second gives rise to “minimizing of inconvenient facts about the Constitution and the judicial role.”

Furthermore, each of these is associated with a specific ideological pole:

Whereas originalists tend to be charged with Sartrean bad faith for denying their own transcendence, living constitutionalists are more likely to be charged with Sartrean bad faith for denying the facticity of their situation: the concrete constraints that come with a written Constitution and the social expectations it generates … . The alleged bad faiths of our culture’s stereotypical originalist and its stereotypical living constitutionalist are mirror images of one another.

These are fair readings of the dangers inherent in these positions. But note that Pozen says “alleged bad faiths.” Given how freely conservatives overturn precedents, it’s not clear that “living constitutionalists” (i.e., liberals or progressives) actually deny “concrete restraints” more than conservative “originalists” do.

Bad faith at the Supreme Court

Evidence of conservatives’ outsized “Sartrean bad faith” is overwhelming, as the Supreme Court’s landmark 2008 decision in District of Columbia v. Heller is sufficient to show. In that 5-4 decision, the court’s conservative majority struck down a key gun control act of 1975, finding that the Second Amendment conferred a broadly defined right for individuals to own firearms.

One can imagine an alternative universe, with a far different history and constellation of current facts, in which a “living constitutionalist” interpretation of the Second Amendment could find good-faith justifications for ignoring the plain text that defined its purpose and intent: “A well regulated Militia, being necessary to the security of a free State.”

But there is simply no way for an “originalist” reading of the text to arrive at the good-faith conclusion that the amendment was intended to apply to all individuals, with little or no restriction. Yet here we are.

The story with the history-shaping Bush v. Gore decision that decided the 2000 presidential election was similarly stark, although the details get messy. But former Yale and Berkeley law professor Robert Post has stated it clearly enough:

“I do not know a single person who believes that if the parties were reversed, if Gore were challenging a recount ordered by a Republican Florida Supreme Court,” that Justices William Rehnquist, Antonin Scalia and Clarence Thomas “would have reached for a startling and innovative principle of constitutional law to hand Gore the victory.”

It’s worth noting that a 7-2 majority in that case found a violation of the 14th Amendment because imperfectly-marked ballots weren’t being uniformly counted or discarded — but only the five conservatives (“soft” conservatives Anthony Kennedy and Sandra Day O’Connor, plus the three named above) voted to denying any lower courts an opportunity to remedy that violation.

It was as clear a distinction between good-faith and bad-faith reasoning as one could possibly want: Denying the opportunity for a judicial remedy made certain that none of the questionable or uncertain ballots would receive any protection at all. “Protecting” voters’ rights by destroying their ballots is bad faith par excellence.

Geoffrey R. Stone, an editor of the Supreme Court Review, noted that over the previous decade, the three hardcore conservatives had cast 65 votes in non-unanimous decisions interpreting the Equal Protection Clause, 19 of which involved affirmative action. Collectively, the conservative justices cast exactly two votes finding Equal Protection Clause violations those cases — one less vote in an entire decade than they cast in the Bush v. Gore decision. Summing this up, Stone wrote:

What does this tell us? It tells us that Justices Rehnquist, Scalia and Thomas have a rather distinctive view of the United States Constitution. Apparently the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newly freed slaves, is to be used for two and only two purposes — to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election.

A clearer example of constitutional bad faith would be hard to imagine. It dovetails perfectly with the historical account that Maxwell provides, except for the part about bad-faith arguments not holding up in court.

As the dust settles on the debacle of Trump’s “census question,” it’s imperative to pay attention to the bigger picture. Suppressing the count of undocumented immigrants was only one part of the overall scheme to “reestablish the foundations of white man’s government,” as Serwer succinctly put it. Already, as NPR’s Hansi Lo Wang noted on Twitter:

NEW: Commerce @SecretaryRoss has directed @uscensusbureau “to produce Citizenship Voting Age Population (CVAP) information prior to April 1, 2021 that states may use in redistricting,” according to document uploaded July 3 to https://t.co/SshiHkRdbz?? https://t.co/SAvZG79Xfh pic.twitter.com/gqZiN2nAxH

— Hansi Lo Wang (@hansilowang) July 13, 2019

This is the next step in securing white minority rule through 2030. Basing representation on “citizenship voting age population,” rather than total population, would be a radical departure from American tradition — just the sort of radical departure that bad-faith originalists love. It would allow Republican-controlled states to dramatically increase the number of seats elected by older, whiter, more rural districts, making infamous partisan gerrymanders like those in Wisconsin, Michigan or Ohio even more extreme than they already are.

There is growing popular support for a fairer redistricting process that does away with partisan gerrymandering. (It’s true, after all, that Democrats have done that too — although not nearly as much.) But the Supreme Court is pushing back hard. On the same day Chief Justice John Roberts turned away Trump’s census question, he also turned back any possibility of a federal court remedy to partisan gerrymandering, effectively giving a green light to the larger white supremacist project in which the flawed census question was a weak link.

Bad faith in “balls and strikes”

It’s often said that Roberts cares deeply about the perceived legitimacy of the Supreme Court. That’s clearly true. But as the above summary suggests, that perceived legitimacy is itself a bad-faith fiction. Roberts is doing everything he can to ensure continued Republican rule while maintaining the illusion (perhaps to himself as well) that he is just “calling balls and strikes.”

Even the metaphor is a lie. Trial court judges may call balls and strikes, but appellate justices decide which game is being played, and which set of rules apply. Every lawyer in America knows that, and to pretending otherwise is just more bad-faith posturing. Roberts excels at that, and his bad faith is far more dangerous to America than Donald Trump’s.

Trump’s bad-faith arguments, after all, are transparent, garish and impossible to miss. Roberts’ bad-faith arguments are subtle, fashionably attired and cloaked in intellectually respectable language. Almost everyone yearns to believe that the Supreme Court is above politics, that it represents a pure, hallowed realm where American ideals are preserved. That may be the biggest and most dangerous bad-faith lie of all.

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https://www.alternet.org/2019/07/john-roberts-isnt-our-savior-from-trump-hes-the-presidents-chief-enabler/

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John Roberts isn’t our savior from Trump — he’s the president’s chief enabler

written by Cody Fenwick July 4, 2019

When the Justice Department and the Commerce Department announced on Tuesday that the case was closed on the Census’ citizenship question and the query would be left off the 2020 survey, I was immediately confused. Though Supreme Court Chief Justice John Roberts had written a majority opinion for last week ruling that the Commerce Department’s fake justification for the question warranted blocking the agency from including it, he left an opening for the Trump administration to push forward with the effort as long as it provided another excuse.

And right on cue, President Donald Trump tweeted Wednesday that his administration wasn’t dropping the question after all, and the Justice Department announced that it is exploring paths to keep the query on the Census. Thursday morning, Axios reported that the president is considering an executive order directing the Commerce Department to include the question after all.

Some are arguing that this shows Trump is preparing to disobey the Supreme Court. Former federal prosecutor and legal analyst Joyce Vance said that by including the question, Trump could be committing an “unconstitutional” act.

But unfortunately, this does not appear to be the case. Roberts’ ruling was particularly narrow, and he appears to have given Trump plenty of room to wiggle out of it.

When Roberts affirmed a lower court’s decision to block the citizenship question and remand the issue back to the agency, he did so for one reason: its justification for the questions’ inclusion was obviously false. Commerce Secretary Wilbur Ross had claimed that he included the question based on the Justice Department’s view that it needed the answer to enforce the Voting Rights Act. The public record contradicted these claims, and Robert concluded that the reason the administration provided “seems to have been contrived.”

Many hailed this as a bold move for the chief justice, essentially calling out the administration for lying. However, saying that the Trump administration is lying is no more praiseworthy that accurately describing the present weather. Of course the president and his officials are lying. It’s what they do. Not calling it out would be a derogation of duty.

And Roberts made it quite clear that it was only because the administration had been so brazen in its dishonesty that the Census question could be blocked:

Unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived. The reasoned explanation requirement of administrative law is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. The explanation provided here was more of a distraction. In these unusual circumstances, the District Court was warranted in remanding to the agency.

This makes quite clear that Roberts is leaving Trump a loophole. It’s “typical,” he said, that an agency may conceal some of its reasons for taking a certain enforcement step. Since the VRA explanation was the sole reason given for the citizenship question, and yet it was “more of a distraction” than a believable claim, Roberts upheld the lower court’s ruling.

But this leaves open the possibility that the Trump administration could come up with another, non-fake reason for including the citizenship question, and that should suffice to allay Roberts’ doubts. It doesn’t matter if the administration has other, “unstated” reasons for including the question, because Roberts said this is “typical.” All it needs is a non-bogus justification in addition to whatever the true reason was that the question was initially proposed.

Perhaps it seems that, since the administration was obviously trying to hide its genuine reason to include the question — which was almost certainly to discriminate against Hispanic people and disadvantage Democrats — any additional justification that Trump officials might provide would also clearly be a pretext. But this isn’t so. To satisfy Roberts, the only thing Trump officials should have to do is imagine some possible benefit to including the citizenship question on the Census. It’s not clear the administration even has to actually think this supposed benefit is, in fact, a benefit — the explanation would only have to not be obviously false. That would remove the “unusual circumstances” that Roberts said merited blocking the citizenship question.

To be clear, I’m not defending Trump or Roberts. The question was clearly designed for discriminatory and illegitimate purposes. But as Joshua Matz argued at the law blog Take Care, Roberts seemed to dismiss many of the good reasons he might have endorsed for blocking the citizenship question:

The result is a Supreme Court opinion that eliminates nearly every constitutional, statutory, and regulatory objection that has been raised against the citizenship question, and that describes the decision to include this question as reasonable in light of empirical uncertainty about the best way to calculate the total number of citizens.

Ultimately, the Chief’s only complaint is that Ross offered a rationale for this decision that—to borrow a phrase from Scalia—taxes the credulity of the credulous…

At bottom, then, the Chief’s objection concerns only the shamelessness of the administration’s bad faith. Before he dirties his hands upholding Ross’s decision, he has required Ross to clean things up a bit, thus ensuring that the citizenship question enjoys a patina of legitimacy when he finally okays it.

The Justice Department, it seemed, did not initially agree with my or Matz’s assessment of the ruling, because it concluded that the citizenship question was dead. But Trump seems likely to be proven right in the end, and he will probably get his way.

One reason the Justice Department may have been inclined to throw in the towel is that its own credibility was on the line. It argued multiple times before the court that the administration had a hard June 30, 2019 deadline before it had to begin printing the Census forms in order to comply with the legally mandated deadline. Trying to find a new justification for including the citizenship question, and having that justification vetted by the courts, could extend well past that deadline. Trump, however, doesn’t put much stock in his administration’s credibility.

And while the court won’t be happy about having been lied to on this matter, it’s hard to see how this could make a difference in the final decision of including the question. The Trump administration could always say it previously believed June 30 to be a hard deadline, but it found an alternative route by, say, printing an addendum to the Census forms that includes the citizenship question.

If Trump goes through with these shenanigans, as he seems intent on doing, he will have made a mockery of the judiciary. But Roberts will have let him. The chief justice has made clear that he intends on giving the Trump administration an excessive amount of leeway, as the decision to allow the Muslim ban to stay in effect first demonstrated.

Undoubtedly, Roberts doesn’t seem to like Trump very much. Last December, he took the rare step of appearing to respond directly to some of Trump’s claims when the chief justice declared that there are no “Obama judges or Trump judges.”

And yet Roberts was elevated to the court for a purpose, and that purpose was the protection and promotion of the conservative movement. That means empowering the executive branch and letting Republican presidents get away with abusing their office. By directly lying to the court and the American people, the Trump administration went farther than even Roberts was willing to bear in this instance. Not so far, though, that Roberts wasn’t willing to let Trump have a do-over.

He’s willing, in other words to be Trump’s enabler, even if he doesn’t like him.

It’s possible Roberts will surprise me and block another attempt by Trump to include the question. I seriously doubt it, but Roberts does have the capacity to surprise. Nevertheless, the chief justice gave Trump the window in his latest ruling to push the envelope even further, to try to see what he could get away with. By writing a more decisive ruling, he could have stopped this nonsense with the citizenship question in its tracks. Instead, he allowed Trump to drag out the fight.

CAPT 719

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see TWO 719

nom 2005, CU, disenfranchise voters

capt bak

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https://www.alternet.org/2019/06/john-roberts-will-wreck-democracy-if-trump-gets-out-of-his-way/

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John Roberts will wreck democracy — if Trump gets out of his way

written by Sophia Tesfaye / Salon June 28, 2019

A pair of rulings handed down by the Supreme Court on the last day of its current session shows just how much Chief Justice John Roberts has overseen the slow destruction of the democratic process in this country over the last decade.

Since assuming the center seat on the nation’s highest court in 2005, Roberts has ruled in favor of unlimited corporate spending in political elections and against enforcement of the Voting Rights Act. This week he added allowing partisan gerrymandering to continue and at least a potential citizenship question on the census, an obvious attempt to intimidate non-citizens and immigrants out of participating.

Yes, technically Roberts joined with the court’s four “liberal” justices in a complex 5-4 decision on whether the Trump administration can ask all recipients a citizenship question on the 2020 census for the first time since 1950. But his ruling isn’t anything to get excited about. Quite the contrary.

The question, which critics say would further reduce the already low Hispanic participation rate, had been blocked by numerous federal courts. The Trump administration had claimed it was necessary to better comply with federal voting rights law.

“There’s no evidence in this record that the secretary [of Commerce] would have asked this question had the Department of Justice not requested it,” Solicitor General Noel Francisco argued in court.

But there was plenty of evidence to suggest that this question was fed to the Trump campaign team around the time of the election by former Kansas Secretary of State Kris Kobach, a notorious advocate of voter suppression tactics. It likely came through former Trump campaign CEO and White House adviser Steve Bannon, before landing in the lap of Commerce Secretary Wilbur Ross, who oversees the census. The administration simply lied about all that.

Rep. Grace Meng, D-N.Y., asked Ross during a House Appropriations subcommittee hearing last year, “Has the president or anyone in the White House discussed with you or anyone on your team about adding the citizenship question?”

Ross replied: “I am not aware of any such.”

His lawyers later admitted, however, that “Secretary Ross recalls that [Steve] Bannon called Secretary Ross in the Spring of 2017 to ask Secretary Ross if he would be willing to speak to then-Kansas Secretary of State Kris Kobach about Secretary Kobach’s ideas about a possible citizenship question on the decennial census,” despite initial claims that Ross could not “confirm that the Secretary spoke to Steve Bannon regarding the Citizenship Question.”

In a July 2017 email to Ross, Kobach proposed wording for a citizenship question. He complained that “aliens who do not actually ‘reside’ in the United States are still counted” in the census numbers used to determine how many seats in Congress each state gets. This is ludicrous on its face: You do not have to be a citizen of a given country to “reside” within it.

The evidence is damning and difficult to ignore — but if the Trump administration had not blatantly lied to Roberts’ face, they probably would have gotten away with it.

“The sole stated reason” for the citizenship question, Roberts wrote in his opinion, “seems to have been contrived. We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process.”

The decision remands the case to lower courts to be reconsidered. The census wasn’t saved by the Supreme Court, but by Trump’s incompetence. Roberts essentially stated that the citizenship question was legitimate — but that the government had to come up with a better excuse for it.

The U.S. census has never been about how many people are citizens or eligible voters in a given area. It’s about a much simpler question: How many people live there. Adding the citizenship question, in light of the evidence that it would depress response rates, only serves as a direct contradiction of the census’ principal purpose. Congress has directed the Census Bureau to spend no more on the 2020 Census than it did in 2010 when, according to the government’s reports, Latinos were undercounted by 1.5 percent and African-Americans by nearly 2 percent.

The Trump administration argued in court that there was not enough evidence that the question would decrease the response rate to block the question. (Research from the Census Bureau itself strongly suggests otherwise.) The administration also previously told the court that the questionnaire needed to be printed by the end of June — which you will notice is upon us. No doubt the government will now concede that the real deadline is October, as the challengers to the question have long argued. Roberts is merely inviting the administration to come back with a better lie.

Under Roberts’ tenure, the court’s conservative justices have previously provided free legal advice to favor certain outcomes. For instances, they asked the Trump administration come back several times with modifications to its so-called travel ban, so that the court could pretend it was something other than a “Muslim ban.” In the infamous Citizens United case, the Roberts court had the plaintiff reframe demands in order for the conservatives to rule on the case they wanted, rather than the one actually in front of them.

Unfortunately for the Trump administration, even with a second bite of the apple on the census question, this case is likely to face even more scrutiny.

As a federal trial judge in Maryland ruled earlier this month, new evidence presented after oral arguments had been heard by the Supreme Court had raised “a substantial issue.” The recently revealed evidence shows just how racist the basis for this entire question actually was.

The late GOP redistricting strategist Thomas Hofeller played a substantial role in adding the citizenship question, according to documents uncovered after his death. Hofeller argued that adding a citizenship question would depress Hispanic response rates, thereby allowing states to redraw districts that boosted “Republicans and non-Hispanic whites” to an unfair electoral advantage for years to come.

The Supreme Court did not initially consider the Hofeller evidence, which did not emerge until the case had been argued, but the evidence of racial bias will indisputably be part of the record the second time around. In a blatant attempt to stop congressional oversight on this front, the Justice Department on recently threatened to invoke presidential powers to withhold the documents on its efforts to add the citizenship question, unless House Democrats backed off their threats to hold Ross in contempt of Congress. So far, Democrats haven’t blink.

In light of an earlier ruling by Roberts, the census case is merely a temporary failure and another example of a rookie mistake by Trump.

Before handing down his surprise decision in the census case, Roberts ruled alongside the other four justices appointed by Republicans to allow partisan gerrymandering to go unchallenged in federal court. This essentially guarantees that the political party that controls a statehouse can draw voting districts however it wishes, without intervention.

“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” Justice Elena Kagan wrote in dissent. “Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.”

The ramifications of this decision will be felt for decades to come all over the country. There’s ample evidence that Republicans in office have pursued gerrymandered maps to shut out people of color or other groups likely to vote Democratic — either by carving them up and dispersing them, or by concentrating them into as few districts as possible.

John Roberts, who gave Republicans a green light to install legislative majorities against the will of the people — and may yet allow them yet another tool to keep power through the census — seeks to convey a sense of consensus, as biographer Joan Biskupic notes. Supreme Court justices “do not sit on opposite sides of an aisle, we do not caucus in separate rooms, and we do not serve one party or one interest. We serve one nation,” Roberts insisted last October.

But as Nse Ufot, the executive director of New Georgia Project, the nonprofit voter engagement group founded by Stacey Abrams, notes: “Justice Roberts is hiding behind the concept of federalism. They’re using the separation of powers and branches of government as a pretext for attacking civil rights. They have a sacred duty to uphold the Constitution. [The 2013 decision to overturn parts of the Voting Rights Act] told us everything we needed to know about the Roberts Court and their hostility toward civil rights and voting rights.”

Roberts wrote both of Thursday’s majority opinions. This is his project, and it’s not over.

https://www.alternet.org/2019/06/supreme-court-sends-census-citizenship-case-back-to-lower-court-after-bombshell-evidence-reveals-gops-true-motives/

no lnx

Supreme Court sends census citizenship case back to lower court after bombshell evidence reveals GOP’s true motives

STEPHEN WOLF / DAILY KOS

27 JUN 2019 AT 15:30 ET

In a surprise decision that will help preserve fair political representation, the Supreme Court temporarily blocked the Trump administration from adding a question to the 2020 census asking U.S. residents about their citizenship status, instead sending the case back to lower court for it to explore explosive new evidence behind the GOP’s motives for including the question.

The addition of this citizenship question would have likely had a chilling effect, intimidating millions of people in immigrant communities into not participating in the census. That in turn would have turbocharged a new wave of hyperpartisan Republican gerrymandering nationwide, since census data is the bedrock of redistricting.

This impact was in fact the entire rationale behind this question: In a recent bombshell report, based on newly unearthed documents from a deceased GOP political consultant, Thomas Hofeller, Republicans admitted that rigging the census would eviscerate the political power of Democrats and voters of color.

The Constitution mandates that every person in the U.S. be counted in the decennial census, without regard to their legal status. A question on citizenship hasn’t been included in the census since 1950, and even when it has appeared, it has never been asked of every single participant, as the Trump administration intended it to be in 2020. Furthermore, multiple lower courts had ruled that Trump’s attempt to add the question violated both federal law and the Constitution.

Those courts uniformly dismissed the Trump administration’s claim that the Justice Department needed data on citizenship to enforce the Voting Rights Act as a bogus pretext that masked their true motives. Hofeller’s document trove revealed the GOP’s racist and partisan intent: allowing mapmakers to use citizenship statistics result in “a disadvantage to the Democrats” and to be “advantageous to Republicans and non-Hispanic whites.”

Although the Census Bureau had planned to print millions of census forms in July, plaintiffs argued that it could delay printing until October to give the courts time to resolve the case. Now, the case will go back to the federal district court in New York that originally heard the matter. That will allow the judge to conduct an in-depth review of the new evidence and craft a ruling that addresses the Trump administration’s racial and partisan animus. In the likely event that the lower court once again blocks the question, the Supreme Court may let such a ruling stand following its latest decision.

Given the blatant display of partisan and racial bigotry behind the GOP’s plans, this ruling averted a major blow to democracy that would have rivaled the harms of both 2000’s Bush v. Gore decision and the 2013 ruling that crippled the Voting Rights Act. Although the Supreme Court’s Republican majority has advanced an increasingly partisan agenda that undermines the rule of law, Trump’s malicious effort to weaponize the census simply proved to be too extreme for the court to accept.

‘A requiem for American democracy’: 5-4 Supreme Court vote rules partisan gerrymandering is ‘beyond the reach of the federal courts’

Elizabeth PrezaJune 27, 2019

The Supreme Court on Thursday in a 5-4 ideological split rejected limits to partisan gerrymandering, quashing an effort by advocates of political reform to rein in manipulative electoral district boundarie

https://www.alternet.org/2019/05/the-fate-of-american-democracy-may-hinge-on-one-person/

When Richard Nixon refused to comply with the Senate Watergate committee’s subpoena to turn over his White House tapes, the standoff resulted in litigation which made its way to the Supreme Court.

In an 8-0 decision (Justice Rehnquist recused himself), the Court ruled against Nixon and directed him to turn over the tapes to Congress.

Much like Nixon, the Trump Administration is refusing to comply with a lawful congressional subpoena for the full, unredacted Mueller report (and its supporting documents).

How would the current conservative Supreme Court rule on Trump’s clear defiance of established law?

There is little doubt this Court would be divided. No unanimous decision here, folks, as in United States v. Nixon.

You can bet on a 5-4 decision, either way.

Since Justice Anthony Kennedy retired from the Court, Chief Justice John Roberts has become the de facto “swing vote.” With four solid conservatives on the bench, now that Trump has been able to get Gorsuch and Kavanaugh to join the other two right-wing ideologues (Thomas and Alito), how would Roberts vote?

If Roberts joins his conservative colleagues, you can pretty much forget about the rule of law, and the Constitution for that matter, in this country. We will have a kneecapped congress unable to fulfill its oversight responsibilities, and we’ll have entered a new era of unchecked, unrestrained executive powers.

If Roberts sides with the four liberals on the Court, Ginsburg, Breyer, Sotomayor and Kagan, we will remain a nation that honors the Constitution and the separation of powers. The decision would serve as a strong rebuke to a lawless president and administration.

So what would Roberts do if some form of United States v. Trump makes its way to his court?

If you remember, much to the dismay of conservatives, Roberts was the deciding vote which upheld Obamacare (Affordable Care Act.)

Roberts is what I would label a principled conservative jurist who actually cares about the Court’s reputation and how history will judge him and his court.

As Michael O’Donnell writes in *The* *Atlantic*, “Roberts is the most interesting judicial conservative in living memory because he is both ideologically outspoken and willing to break with ideology in a moment of great political consequence. His response to the constitutional crisis that awaits will define not just his legacy, but the Supreme Court’s as well.”

While he has sided with his conservative colleagues in 87.5 percent of 5–4 decisions, I’m betting there is a better than 50-50 chance Roberts will do the right thing and tell Trump and his cabal of corrupt cohorts they are not above the law.

https://insideclimatenews.org/news/28062018/justice-anthony-kennedy-retirement-environmental-laws-climate-change-case-massachusetts-v-epa-supreme-court

To see why environmentalists are panicking about who President Donald Trump may put in the Supreme Court seat being vacated by Justice Anthony Kennedy, just go back 11 years and read the two dissents in the landmark climate change case Massachusetts v. EPA.

Not the majority opinion, where Kennedy provided the fifth, swing vote compelling the Environmental Protection Agency to regulate greenhouse gases as pollutants under the Clean Air Act. In the opening words of the ruling, the liberal wing of the court, joined by Kennedy, embraced the science of climate change.

No, what sends shudders down the spines of environmental advocates is the way the deeply conservative minority saw things back then, spelled out in a pair of dissents—one written by Chief Justice John Roberts and the other by the late Justice Antonin Scalia, whose seat Trump filled last year with Neil Gorsuch. Both dissents were also joined by Justices Clarence Thomas and Samuel Alito.

The dissents are hostile to an expansive view of EPA's powers under the Clean Air Act, but more profoundly, they are out of step with the core scientific understanding of global warming

. Scalia's core beliefs, known as "textualism," which would see no climate role for the agency in charge of protecting the environment unless it is expressly spelled out in statute. Congress, especially under the control of Republicans, doesn't look likely to crack down on pollution from the use of fossil fuels, whatever the risks to society.

And it's a nightmare to think that a new majority on the court might turn it into a sounding board for outright climate denial.

'Pure Conjecture'?

Roberts started off his dissent by stating that he would render "no judgment on whether global warming exists, what causes it, or the extent of the problem." But his framing of the question of standing—the threshold test of whether Massachusetts and other states even had the right to press their case in court—was out of step with the science.

On coastal damages from sea level rise, an eventuality that is not just a risk but a certainty, readily observed and directly caused by the warming of ocean waters and the melting of ice masses due to rising carbon dioxide, Roberts wrote: "It is pure conjecture."

As for strengthening controls on the greenhouse gas emissions from new cars, one of the main sources of carbon pollution and the focus of the litigation, their tailpipe fumes played only a "bit-part" in causing the problem, he said.

His point was that to even get their day in court, plaintiffs had to prove that a specific harm to them (coastal damage) had to be right around the corner (not decades away) and had to be knotted to a single act of regulatory neglect (lax auto standards).

Not even justice should be that blind.

It is well established that sea level rise is just one of the myriad dangers presented to public health and the environment by the unregulated use of fossil fuels. In the context of climate science, a century is the blink of an eye. And the moment EPA ruled that CO2 was a dangerous pollutant, not only the science but the law tells the federal government to control emissions from all significant sources, not just new cars.

Next, take a look at the other dissent, written by Scalia—a judge who conservatives consider the archetype for the next nominee to the high court.

Most of it is taken up by Scalia's brand of textualism, a contorted, dictionary-driven defense of the notion that man-made carbon dioxide is not even pollution.

"Regulating the buildup of CO2 and other greenhouse gases in the upper reaches of the atmosphere, which is alleged to be causing global climate change, is not akin to regulating the concentration of some substance that is polluting the air," he wrote.

What This Could Mean for Future Rules

Five like-minded justices "could overturn Mass. v. EPA or, perhaps more likely, significantly curtail its reach," said one legal scholar, Ann Carlson at the UCLA law school.

"Justice Scalia had already begun to lay the groundwork for curtailing EPA's power to regulate greenhouse gases in a subsequent case, *Utility Air Regulatory Group v. EPA*," she wrote. (There, the court upheld EPA rules on some sources, but said the agency had overreached on others.)

"With a new Justice on the Court who opposes Mass. v. EPA, it isn't hard to imagine the Court imposing significant limitations on EPA's ability to regulate greenhouse gases," she went on. "If a Democrat were elected President in 2020 and attempted to reinstate something like the Clean Power Plan, for example, we could well see the Supreme Court strike such a rule down."

She found it "even more alarming" that Alito and Thomas wanted to undo Massachusetts at that point. "Add Justice Gorsuch and the new Justice, persuade Justice Roberts to join in, and Mass. v EPA is overturned."

Richard Lazarus of Harvard told The Atlantic that Kennedy's absence might affect environmental law across the board. "He's been on the court just over 30 years, and he's been in the majority in every single environmental case but one. You don't win without Kennedy," he said.

Without knowing the name of the next justice, it's hard to predict more, other than that the court that ultimately decides the fate of the Clean Power Plan will lean even more to the right than the one that, just before Scalia died, issued a stay of that regulation.

Ever since the stay was issued, the litigation has been in limbo, although it looks like judicial patience is running out at the U.S. Court of Appeals for the District of Columbia Circuit, which held oral arguments almost two years ago.

Judge Brett Kavanaugh and Climate Change

Among the judges on that appellate bench was Brett Kavanaugh, who is on everyone's short list, including Trump's, to replace Kennedy.

Here's one of his comments that day, as reported by The New York Times:

"The earth is warming," Kavanaugh said. "Humans are contributing. I understand the international impact and the problem of the commons. The pope's involved. And I understand the frustration with Congress."

But he echoed Chief Justice Roberts' thinking when he went on: "If Congress does this, they can account for the people who lose their jobs. If we do this, we can't."

If Kavanaugh becomes the nominee, those words would likely resonate with pro-coal senators like Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota, two of the nervous Democrats whose votes might be needed for his confirmation.

And knowing what a weak hand the greens hold in Congress, it's easy to see why climate activists are walking around with furrowed brows.

https://www.thenation.com/article/the-gops-attack-on-voting-rights-was-the-most-under-covered-story-of-2016/

2016 WI voter ID

There were 25 debates during the presidential primaries and general election and not a single question about the attack on voting rights, even though this was the first presidential election in 50 years without the full protections of the Voting Rights Act. Fourteen states had new voting restrictions in place for the first time in 2016—including crucial swing states like Wisconsin and Virginia—yet we heard nary a peep about it on Election Day except from outlets like The Nation. This was the biggest under-covered scandal of the 2016 campaign.

http://www.democracycorps.com/National-Surveys/broad-bi-partisan-consensus-supports-reforms-to-supreme-court/

carville greenberg

---

COAL EPA

http://www.motherjones.com/environment/2014/08/conservatives-typo-unravel-obama-climate-law-epa-coal

Conservatives Want to Wipe Out Coal Rules…Over a Typo

A federal appeals court took a red pen to Obamacare. The president's signature environmental achievement could be next.

Social Title:

Conservatives want to wipe out coal rules…over a typo.

This story [1] originally appeared onGrist [2] and is republished here as part of the Climate Desk [3] collaboration.

If you can't beat 'em, point out their typos.

That seems to be the lesson of the D.C. Circuit Court's recent decision in Halbig v. Sebelius, which could render millions of Americans ineligible for health insurance subsidies on the basis of some sloppy syntax in the Affordable Care Act. After surviving more than 50 repeal votes in the House, a Supreme Court challenge to its constitutionality, and a famously rocky online rollout, health-care reform may end up hobbled by a mere drafting error. And the anti-regulatory crowd wasted no time in launching its next AutoCorrect attack: A new suit [4] asks the D.C. Circuit to nix the president's biggest climate-change initiative—EPA's "Clean Power Plan"—due to a 25-year-old mistake in the text of the Clean Air Act.

But don't panic just yet. As others have pointed [5] out [6], Halbigis far from a done deal. A different federal appeals court, the Fourth Circuit, upheld the insurance subsidies on the same day the Halbig court invalidated them. If the full D.C. Circuit doesn't end up reversing its three-judge panel's initial decision (through a sort of mini-appeal known as en banc review), the Supreme Court will almost certainly step in to resolve the circuit split. In the meantime, no one loses her insurance.

The prospects for EPA's climate rule aren't so bleak either. First of all, the 12 state attorneys general who filed suit were a bit too quick on the spell-check trigger. Federal courts generally limit review of agency decisions to "final actions," and the Clean Power Plan is still in draft form. As a result, the current case will probably be dismissed as premature. That won't stop the state AGs from re-filing as soon as EPA doespublish a final rule, but even then, their victory will hardly be assured. Here's why.

The "Clean Power Plan" is the administration's catchy(ish) nickname for a set of restrictions on carbon dioxide emissions from power plants [7], which generate a full third of the nation's greenhouse gas pollution. EPA's authority to regulate these emissions derives from a little-used Clean Air Act provision called Section 111(d). The section has been around since 1970, but when a bipartisan majority of Congress overhauled the Clean Air Act back in 1990, it amended 111(d). Twice. The details are complicated (you can read more about them here [8]), but the upshot is simple: Under the language of an amendment that originated in the Senate, regulating power plants' carbon emissions is perfectly kosher; under the House's amendment, not so much.

Competing House and Senate amendments—doesn't Congress have an app for that? Yep, even back in the digital dark ages of 1990, there was software designed to identify overlapping or incompatible changes to statutory text. But the conference committee charged with reconciling the House and Senate bills didn't have time to run it. As a result, both 111(d) amendments ended up in the compromise bill that was passed by both chambers and signed by the first President Bush. Meaning that both versions are, in some sense, the law of the land.

A self-contradicting statute—doesn't the judiciary have an app for that? Sort of. Federal courts certainly have an established rule for dealing with vague or ambiguous laws. Under the Chevrondoctrine,if a statute does not "speak clearly" with respect to a particular issue, courts will defer to any reasonable interpretation offered by the executive agency charged with implementing the law. In this case, the EPA maintains that the Senate amendment is more consistent with the Clean Air Act's overall structure and purpose. If Chevron applies, that justification should pass muster.

The tough question is whether Chevronwill apply. It's hard to see how a court could find that the competing amendments to Section 111(d) "speak clearly." But are the amendments "ambiguous" in the Chevron sense, or are they something else altogether—say, nonsensical?

Plenty of legal experts have shared their views, but at the end of the day, the opinions that really matter will be those of nine black-robed individuals in Washington, D.C. Handily enough, five of the Big Nine previewed their positions in a recent, fractured decision about an immigration rule. In Scialabba v. Cuellar De Osorio, the Supreme Court was confronted not with two contradictory versions of a single statutory section, but with a single statutory section that contained two seemingly contradictory instructions. (Cut Congress some slack, you guys. Drafting laws is really hard.) Justice Kagan, writing for herself and Justices Ginsburg and Kennedy, called the statute "Janus-faced," concluded that its "internal tension ma[de] possible alternative reasonable constructions," and deferred to the Board of Immigration Appeals' interpretive choice. Chief Justice Roberts, writing for himself and Justice Scalia, disagreed that the two clauses were truly in conflict but, even more importantly, rejected the idea that Chevron was "a license for an agency to repair a statute that does not make sense." In Roberts' view, "Direct conflict is not ambiguity, and the resolution of such a conflict is not statutory construction but legislative choice."

The other four justices didn't weigh in on this particular question in Scialabba, so it's not clear whether Kagan's or Roberts' camp will carry a majority if and when litigation over the Clean Power Plan reaches the high court. But it's also not clear that the vote count will matter, because either way EPA should retain authority to regulate carbon emissions from power plants.

Come again? First, consider Justice Kagan's view. If her logic controls, the court will apply Chevron, defer to EPA's interpretation of Section 111(d), and affirm the agency's authority to regulate carbon emissions from power plants. A win for EPA and the president.

Alternatively, assume that Chief Justice Roberts gets the majority.The two amendments to Section 111(d) are almost undoubtedly in "direct conflict," so, in Roberts' view, EPA's interpretation doesn't warrant deference. Now what? Roberts' Scialabba opinion doesn't say what the court should substitute for Chevron in the case of a provision that's truly at war with itself. But if the chief justice believes that giving effect to only one of the two amendments represents a "legislative choice," the judicial branch has no more business picking a winner than EPA. (In fact, courts are even less suited than executive agencies to this sort of policy decision. Agencies are, at least, indirectly accountable to the people, because agency leaders serve at the pleasure of a democratically elected president.) If it's not possible to honor the House and Senate amendments simultaneously, the only remaining option is to throw out bothas invalid, in which case Section 111(d) would revert to its pre-1990 form.

That's the reason backers of the climate rule shouldn't panic: Under the earlier version of Section 111(d), EPA would still have authority to regulate carbon emissions from power plants. The agency still wins.

Oh, and if the current Congress doesn't like that result? Well, it remains free to share its preferred method for addressing climate change at any time. There's an app for that, too. It's called new legislation.

===

http://www.booktv.org/Program/15815/Uncertain+Justice+The+Roberts+Court+and+the+Constitution.aspx

"Uncertain Justice: The Roberts Court and the Constitution"

Laurence Tribe

prop 8 out, but http://www.huffingtonpost.com/2013/06/27/supreme-court-texas-voter-id_n_3509834.html

nyt long game, gets concessions from libs on marginal aspects, leveraged to overturn core later eg college admissions based on race: http://www.nytimes.com/2013/06/28/us/politics/roberts-plays-a-long-game.html?pagewanted=all&_r=0&pagewanted=print

sol gen wins70% usually, now 30% favors CoC; cf also newshour on pro biz, class action, small biz vs big

===

who rules:

SCOTUS 195- appointees reflect pres (tho some changes), but all in range of UpC acceptability, many corp lawyers, active in party, 5 of 9 millionaires

splits usually on social issues; more pro corp last 20 yrs

CoC has Nat'l Chamber Litigation Ctr (roberts was go-to corp lawyer 197

under b2 coc guy ~v refs head of osha (their legal arm got roberts and alito confirmed) 266

mentions vegetables (not broccoli by name) overturn commerce clause cd lead to many other progressive laws overturned cf kpfa news and letters 8.22.12 anti fedsoc org BO 1st erm he'll have fewer appointees than when started; title 9 chall right after olympics,also on math etc; env law chall under commerce and spending? ; caroline fredrickson pres Am Const soc http://www.acslaw.org/about/staff/fredrickson**

===

Another way the wealthiest Americans have rigged the rules so more of the national income flows upward may be just as consequential, but less well understood. A 30-year campaign to push America's courts sharply to the right has borne abundant fruit for those in the top 1 percent.

We see it reflected in today's Supreme Court, which, having unleashed a flood of super-PAC cash into our political campaigns in a decision that was one of the most brazen examples of judicial activism in the court's history, now stands poised to overturn not only the Democrats' healthcare bill, but much of the jurisprudence that supported the welfare state developed since the New Deal.

A study by the Constitutional Accountability Center found that the Chamber of Commerce had won 65 percent of its cases heard by the court under Chief Justice John Roberts, compared to 56 percent under former Chief Justice William Rehnquist (1986-2005) and just 43 percent of the cases that came during the Burger court (1969-1986).

But that's only the beginning. “The Roberts Court,” wrote Slate's Dahlia Lithwick, is “slowly but surely... giving corporate America a handbook on how to engage in misconduct. In case after case, it seems big companies are being given the playbook on how to win even bigger the next time.”

Many of the court's rulings have overturned long-standing precedents. While conservatives constantly rail against judges "legislating from the bench," it is far more common for right-leaning jurists to engage in “judicial activism” than those of a liberal bent. That's what several studies have concluded. Media Matters offered a run-down of a couple of prominent ones:

A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the most frequent practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress. Those most frequently labeled "liberal" were the least likely to strike down statutes passed by Congress.

A 2007 study published by University of Chicago law professor Thomas J. Miles and Cass R. Sunstein... used a different measurement of judicial activism: the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court's "conservative" justices were the most likely to engage in "judicial activism" while the "liberal" justices were most likely to exercise "judicial restraint."

In a recent opinion, two federal appeals court judges suggested that all efforts to protect workers, consumers or the environment were unconstitutional, including regulatory efforts by the states. It's a radical view, but one that has gotten increasing traction in conservative legal circles. It is also the culmination of years of institutional investments by the corporate Right to advance what's come to be known as the “law and economics” movement, which analyzes legal rulings “costs” – essentially applying neoliberal economic logic to the field. Its advocates eschew the notion that human rights or economic fairness are inherently valuable factors for the law to consider.

The model has gained increasing influence in American courts, and that's no accident. In his book, The Rise of the Conservative Legal Movement: The Battle for Control of the Law, Johns Hopkins scholar Steven Teles writes that conservatives, reacting to what they viewed as liberal hegemony in the legal community of the 1960s, fought hard to shift the legal terrain rightward.

Spurred by their overlapping grievances, informed by an increasingly sophisticated of how to produce legal change, and coordinated by strategically shrewd group of patrons, conservatives began investing in a broad range activities designed to reverse their … organizational weaknesses. While similar kinds of organizational development were happening in other domains … in no other area was the process of strategic investment as prolonged, ambitious, complicated and successful as in the law.

In 1998, the Washington Post reported that “Federal judges are attending expenses-paid, five-day seminars on property rights and the environment at resorts in Montana, sessions underwritten by conservative foundations that are also funding a wave of litigation on those issues in the federal courts.”

Funding for the seminars, run by a group called the Foundation for Research on Economics and the Environment (FREE), also comes from foundations run by companies with a significant interest in property rights and environmental law issues.

One of the group's funders was the John M. Olin Foundation, which invested millions of dollars in the law and economic movement – endowing university chairs, funding think-tanks and providing early support for the Federalist Society, which was founded in 1982 by former attorney general Ed Meese, controversial Supreme Court nominee Robert Bork and Ted Olsen—who years later would win the infamous Bush v. Gorecase before the Supreme Court in 2000 and then go on to serve as Bush’s solicitor general. The foundation said in a 2003 report to its trustees, “All in all, the Federalist Society has been one of the best investments the foundation ever made.”

In 2005, the Olin Foundation actually declared “mission accomplished” and closed up shop. The New York Times reported that after “three decades financing the intellectual rise of the right,” the foundation’s services were no longer needed. The Times added that the loss of Olin wasn’t terribly troubling for the movement, because whereas “a generation ago just three or four major foundations operated on the Right, today’s conservatism has no shortage of institutions, donors or brio.”

If the economics and law movement were to become the standard in our legal culture, it would represent a massive upward redistribution of wealth. Not only would “transfer payments” – unemployment benefits, assistance for needy families and the like – be deemed unconstitutional, but so would minimum wages, job training programs, subsidized student loans and most of our already threadbare social safety net. And that environment will have been purchased for a princely sum by those who have profited so handsomely from America's spiraling income inequality.

Joshua Holland is an editor and senior writer at AlterNet. He is the author of The 15 Biggest Lies About the Economy: And Everything else the Right Doesn't Want You to Know About Taxes, Jobs and Corporate America.

----

see

Unequal Protection: How Corporations Became "…

by Thom Hartmann

cit united went from deciding if a small part of McC-F was unconstit, to whether the whole thing is?! actually id congress has any power in limiting corp "free speech" p 171 SC had upheld M-F 2003, and 20 yrs earlier Austin v MI C0C

---

http://en.wikipedia.org/wiki/John_G._Roberts

mostly corp law at Hogan & Hartson

cf toobin no more mr nice guy http://www.newyorker.com/reporting/2009/05/25/090525fa_fact_toobin

...

When Antonin Scalia joined the Court, in 1986, he brought a new gladiatorial spirit to oral arguments, and in subsequent years the Justices have often used their questions as much for campaign speeches as for requests for information. Roberts, though, has taken this practice to an extreme, and now, even more than the effervescent Scalia, it is the Chief Justice, with his slight Midwestern twang, who dominates the Court’s public sessions.

Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party....

From New York, Roberts moved to the Supreme Court, where he became a clerk for Associate Justice William H. Rehnquist, and it was in Washington that his political education began. Rehnquist, appointed by Richard Nixon in 1972, was, in his first decade as a Justice, almost a fringe right-wing figure on the Court, which was then dominated by William J. Brennan, Jr. But Ronald Reagan’s election to the Presidency, which took place just a few months into Roberts’s clerkship, lifted Rehnquist to power and, more broadly, gave flight to the conservative legal movement.

At that early stage of the Reagan era, conservatives had a problem, because there were no institutions where like-minded lawyers could be nurtured; the Federalist Society, the conservative legal group, was not founded until 1982. “Roberts got a lot of attention because he clerked for Rehnquist,” said Steven Teles, a professor of political science at Johns Hopkins and the author of “The Rise of the Conservative Legal Movement.” “Without the Federalist Society, there were not a lot of other ways for the Administration to make sure that they were getting true conservatives. The Rehnquist clerkship marked Roberts as someone who could be trusted.”

...

Before long, though, Roberts steered away from nostalgic reverie and into constitutional controversy. He maintained his relaxed and conversational cadence, but his words reflected a sharply partisan world view. “When Justice Rehnquist came onto the Court, I think it’s fair to say that the practice of constitutional law—how constitutional law was made—was more fluid and wide-ranging than it is today, more in the realm of political science,” Roberts said. “Now, over Justice Rehnquist’s time on the Court, the method of analysis and argument shifted to the more solid grounds of legal arguments—what are the texts of the statutes involved, what precedents control. Rehnquist, a student both of political science and the law, was significantly responsible for that seismic shift.” Rehnquist joined the Court toward the end of its liberal heyday—the era when the Justices expanded civil-rights protections for minorities, established new barriers between church and state, and, most famously, recognized a constitutional right to abortion for women. This period, in Roberts’s telling, was the bad old days.

These sentiments reflect a common view for conservatives like Roberts. “There really was a sense at the time among the lawyers in his Administration that Reagan had a mandate for comprehensive change in the nature of government,” Teles said. “They thought a lot of what the liberals had done in creating, say, affirmative action was simply interest-group politics and not really ‘law’ at all, and it was their job to restore professionalism to the legal profession in government.”

“I heard about John, and I immediately tried to hire him,” Charles Fried, the Harvard law professor who was Reagan’s second Solicitor General, said. Kenneth Starr, who was chief of staff to William French Smith, Reagan’s Attorney General, had hired Roberts as a special assistant to Smith. Roberts then went to work at the White House, as an associate counsel.

All the lawyers who worked for Reagan were, in some general sense, conservative, but there is a difference between those, like Roberts, who came of age during Reagan’s first term in office and those who prospered in his second. “The Department of Justice in the first term was full of serious, principled people,” Teles said. “They didn’t see themselves as part of the Christian right, or even necessarily part of a larger political movement, but they did think of themselves as real lawyers who were reacting to what they thought of as the excesses of liberalism.” They believed, Teles said, “in what they called judicial restraint and strict constructionism. Roberts comes out of this world.” Liberal critics, in turn, regard this view as unduly deferential to the status quo and thus a kind of abdication of the judicial role.

The legal philosophy of Edwin Meese III, which promoted an “originalist” view of the Constitution, dominated Reagan’s second term. Originalists, whose ranks now include Scalia and Thomas, believe that the Constitution should be interpreted in line with the intentions and beliefs of its framers. “John was not part of the Meese crowd,” one lawyer who worked with Roberts in the Reagan years said. “They cared more about a strict separation of powers, and even some limitations on executive and government power.”

Originalists and judicial-restraint conservatives generally reach similar conclusions on legal issues, but their reasoning differs. Both, for example, believe that the Constitution does not protect a woman’s right to abortion. “An originalist on abortion would say that at the time of the Constitution, or of the adoption of the Fourteenth Amendment, abortion was prohibited, and that’s it,” Akhil Reed Amar, a professor at Yale Law School, said. “A conservative like Roberts, on the other hand, wouldn’t look immediately at the question of whether all abortions should be outlawed, but examine the specific restriction on abortion rights at issue in the case and probably uphold it. He’d avoid the culture-war rhetoric and gradually begin cutting back on abortion rights without making lots of noise about getting rid of it altogether.” In 2007, Roberts joined Kennedy’s opinion that followed this approach in upholding a federal anti-abortion law. The Court’s two originalists, Scalia and Thomas, wrote a separate concurring opinion in that case, urging, as they had before, that Roe v. Wade be overturned once and for all.

In documents from the Reagan era that were made public during Roberts’s confirmation hearing, the young lawyer emerges as a loyal (and low-level) foot soldier in the Reagan revolution. On issues where there was disagreement within the Administration, Roberts’s memos generally show him supporting the more conservative position, especially on matters of race and civil rights. Roberts said that affirmative action required the “recruiting of inadequately prepared candidates,” and sought a narrow scope for Title IX, the law that mandates equal rights for men and women in educational settings. In 1981, Roberts wrote that a revision of the Voting Rights Act would “establish essentially a quota system for electoral politics by creating a right to proportional racial representation.” (Reagan signed the revision anyway.)

...

When George H. W. Bush won the Presidency, in 1988, his new Solicitor General, Kenneth Starr, hired Roberts again, this time as his principal deputy. Near the end of the first Bush’s term, Roberts was nominated to the United States Court of Appeals for the D.C. Circuit, but Democrats in the Senate, sensing a victory in the approaching 1992 election, refused to let him come up for a vote. So, for Bill Clinton’s eight years in office, Roberts went back to Hogan & Hartson, where, according to his financial-disclosure forms, he made more than a million dollars a year. In 1996,

...

Roberts took a direct role in the contested 2000 election, travelling to Tallahassee to assist George W. Bush’s legal team in the recount litigation. He was rewarded for his efforts the following year, when Bush, like his father before him, nominated Roberts to the D.C. Circuit. He was confirmed two years later, and he served there until Bush chose him for the Supreme Court.

Roberts’s career as a lawyer marked him in other ways as well. In private practice and in the first Bush Administration, a substantial portion of his work consisted of representing the interests of corporate defendants who were sued by individuals. For example, shortly before Roberts became a judge, he successfully argued in the Supreme Court that a woman who suffered from carpal-tunnel syndrome could not win a recovery from her employer, Toyota, under the Americans with Disabilities Act. Likewise, Roberts won a Supreme Court ruling that the family of a woman who died in a fire could not use the federal wrongful-death statute to sue the city of Tarrant, Alabama. In a rare loss in his thirty-nine arguments before the Court, Roberts failed to persuade the Justices to uphold a sixty-four-million-dollar fine against the United Mine Workers, which was imposed by a Virginia court after a strike.

One case that Roberts argued during his tenure in the Solicitor General’s office in George H. W. Bush’s Administration, Lujan v. National Wildlife Federation, seems to have had special resonance for him. The issue involved the legal doctrine known as “standing”—one of many subjects before the Supreme Court that appear to be just procedural in nature but are in fact freighted with political significance. “One of the distinctive things about American courts is that we have all these gatekeeper provisions that keep courts from getting involved in every single dispute,” Samuel Issacharoff, a professor at New York University School of Law, says. “The doctrine of standing says that you only want lawsuits to proceed if the plaintiffs are arguing about a real injury done to them, not simply that they want to be heard on a public-policy question.” Liberals and conservatives have been fighting over standing for decades. “Standing is a technical legal doctrine, but it is shorthand for whether courts have a role in policing the conduct of government,” Issacharoff says. “Typically, the public-interest advocates, usually on the liberal side of the spectrum, favor very loose standing doctrines, and people who want to protect government from scrutiny, who tend to be on the conservative side, want to require more and more specific standing requirements.”

...

On issues of Presidential power, Roberts has been to Scalia’s right—a position that’s in keeping with his roots in the Reagan Administration. “John was shaped by working at the White House, where you develop a mind-set of defending Presidential power,” the lawyer who worked with Roberts in the Reagan years said. Just a few days before Bush appointed Roberts to the Supreme Court, in 2005, Roberts joined an opinion on the D.C. Circuit in Hamdan v. Rumsfeld that upheld the Bush Administration’s position on the treatment of detainees at Guantánamo Bay. (With Roberts recused from the case, the Supreme Court overruled that decision in 2006, by a five-to-three vote, with Kennedy joining the liberals.) Scalia has occasionally shown a libertarian streak, but Roberts, true to his White House past, has consistently voted to uphold the prerogatives of the executive, especially the military, against the other branches.

http://www.newyorker.com/reporting/2009/05/25/090525fa_fact_toobin?printable=true

http://www.sourcewatch.org/index.php?title=John_G._Roberts,_Jr.

John G. Roberts, Jr. was confirmed September 29, 2005, by the U.S. Senate as Chief Justice of the Supreme Court in a 78-22 vote. Roberts replaces Chief Justice William H. Rehnquist, who died on September 3, 2005. [1]

President George W. Bush nominated Roberts to be Supreme Court Chief Justice on September 5, 2005.

On the board of regents for the Smithsonian Institution.

Contents[hide]

2005 Supreme Court Nomination

John G. Roberts, Jr., considered by Fox News to be a conservative judge on the US Court of Appeals for the District of Columbia, was nominated July 19, 2005, by President George W. Bush as Associate Justice of the Supreme Court to replace retiring Justice Sandra Day O'Connor.

Aside from the usual wrangling and controversies attendant to such a partisan nomination to an important position, there is also developing a more serious, perhaps criminal (as if that mattered any more in Washington) situation described in the Roberts nomination scandal article:

The Washington Post and other news outlets are reporting that a file folder containing papers from Supreme Court judicial nominee John G. Roberts, Jr.'s work on affirmative action more than 20 years ago disappeared from the Ronald Reagan Presidential Library after its review by two lawyers from the White House and the Justice Department in July [2005]. [1]

"In another Roberts development, new details are emerging over a potentially serious conflict of interest. As we have reported previously on Democracy Now!, Judge Roberts was interviewing for a possible Supreme Court nomination at the same time he was presiding over a court case of great importance to the White House." [2]

Judicial Background

(reverse chronology needs technical corrections)

July 15, 2005, while interviewing for the Supreme Court, John Roberts ruled in support of the government appeal of lower court decision regarding military tribunals, enemy combatants, and the Geneva Conventions

The opinion says that Congress authorized the president to set up whatever military tribunal he deems appropriate when it authorized him to use "all necessary and appropriate force" to fight terrorism in response to 9/11. While the president has claimed the authority only to try foreign suspects before the tribunals, there's nothing in the Hamdan opinion that stops him from extending their reach to any other suspected terrorist, American citizens included. This amounts to a free hand—and one Bush is not shy about extending. The administration has already devised its own tribunals to review its claims that the Guantanamo detainees are all enemy combatants who are not entitled to the international protections accorded to prisoners of war. As of February, 558 hearings had resulted in freedom for only three prisoners. The Supreme Court has yet to rule on the legality of these tribunals—a question that Roberts may now help decide. [2]

nominated May 9, 2001, by President George W. Bush to the US Court of Appeals for District of Columbia Circuit, "to a seat vacated by James L. Buckley". The nomination was sent to the US Senate January 7, 2003, and confirmed by the Senate May 8, 2003. Roberts received commission on June 2, 2003. [3][4]

"President George H.W. Bush nominated Mr. Roberts to the D.C. Circuit, but he was considered by some on the Senate Judiciary Committee to be too extreme in his views, and his nomination lapsed. He was nominated by President George W. Bush to the same seat in May 2001." [5]

"former principal deputy solicitor general under Kenneth Starr." [6]

nominated by President George H.W. Bush but never received a Senate vote." However, during the George H.W. Bush administration (1989-1993), Roberts was the "principal deputy solicitor general ..., helping formulate the administration's position in Supreme Court cases." [7]

"As deputy solicitor general in 1990, he argued in favor of a government regulation that banned abortion-related counseling by federally funded family-planning programs. A line in his brief noted the Bush administration's belief that Roe v. Wade should be overruled. --*Washington Post*, Charles Lane, July 2, 2005

"On the D.C. Circuit, Roberts voted with two colleagues to uphold the arrest and detention of a 12-year-old girl for eating french fries on a Metro train, though his opinion noted, 'No one is very happy about the events that led to this litigation.' In another case, Roberts wrote a dissenting opinion that suggested Congress might lack the constitutional power to regulate the treatment of a certain species of wildlife."

"Roberts was nominated for the DC Circuit in 2001 and was blocked for two years in the Senate Judiciary Committee, finally getting voted out of committee in May 2003. His committee vote was strong (16-3), but not unanimous. The Senate confirmation was without a roll call vote.

"One has only to read the Alliance for Justice reports and press releases on Roberts to realize that, like almost any other Bush nominee, he would face a buzzsaw if nominated to the Supreme Court." --Jim Lindgren, May 24, 2005.

In 2001, "Critics point[ed] to Roberts' representation of big business and his role in cases attacking the ADA, affirmative action, and labor interests as possible causes for opposition." [8] Roll Call reported, "The lobbying resume of Supreme Court nominee John Roberts is longer than it initially seemed. Even before he lobbied the Office of Management and Budget on behalf of the Cosmetic, Toiletry and Fragrance Association, Roberts worked on behalf of two clients in the peanut industry" (Tory Newmyer and Kate Ackley, "K Street Files," Roll Call, July 25, 2005).

In 2003, Alliance for Justice said that "John Roberts’ legal career and professional writings reveal that he is out of the mainstream in his legal views in a number of areas, most prominently civil rights and the right to choose. His record as a member of the Bush and Reagan administrations reflects opposition to the rights of women and minorities, as well as a restrictive view of the proper role of federal courts in protecting the environment and the rights of criminal defendants. His comments about the Rehnquist Court reveal Roberts’ extremist ideology, a view confirmed by his membership in and connections to ultra-conservative legal groups.

"Mr. Roberts has been nominated to a federal court with tremendous influence. The Washington Times said of the nomination of Roberts (along with that of Miguel Estrada) to the D.C. Circuit that it, 'offer[s] business the best opportunity in years to free itself from government regulations ... A victory for conservatives on the appellate court could cut deeply into the aspirations of environmentalists, labor groups, and other social activists. They depend on federal regulations to carry out their advocacy efforts.'" [9]

Federalist Society

Judge Roberts has stated that he cannot recall ever having been a member of the Federalist Society. He sought and received published corrections from several major news organizations retracting earlier reports that he had been a member.^[10] On July 25, 2005, however, the Washington Post reported that John Roberts is listed in the Society's 1997–1998 leadership directory as serving on the Steering Committee of the Federalist Society. The same source also indicates the possibility that the individuals listed in the "leadership directory" are, in a technical sense, not necessarily "members" of the society, and no confirmable membership information is officially disclosed by the Society itself.

2000 presidential election

While an attorney at Hogan & Hartson, Roberts met with Florida Governor Jeb Bush and gave advice on the legal aspects of election disputes during the Florida recountof 2000.^[11] According to Ted Cruz, an advisor on Bush's 2000 campaign, Roberts helped polish some legal briefs and held a "moot court" session to prepare Bush's lawyers for arguments in Bush v. Palm Beach County Canvassing Board and Bush v. Gore.^[12]

Quotes

FromJeffrey Toobin, Too Close to Call : The Thirty-Six-Day Battle to Decide the 2000 Election, Random House, 2002 ISBN 0375761071:

"The president's first two nominations to the United States Court of Appeals for the District of Columbia curcuit --- generally regarded as the stepping-stone to the Supreme Court --- went to Miguel Estrada and John G. Roberts Jr., who had played important behind-the scenes roles in the Florida litigation."

"'He is well in the running, and he is superb,' says C. Boyden Gray, partner at Wilmer Cutler Pickering Hale and Dorr and chairman of the Committee for Justice, which fights for President George W. Bush's judicial nominees." *Legal Times*, February 22, 2005.

Profiles

According to his US Department of Justice biography:

"Mr. Roberts is the head of Hogan & Hartson’s Appellate Practice Group. He graduated from Harvard College, summa cum laude, in 1976, and received his law degree, magna cum laude, in 1979 from the Harvard Law School, where he was managing editor of the Harvard Law Review. Following graduation he clerked for Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit, and the following year for then-Associate Justice William H. Rehnquist.

"Following his clerkship experience, Mr. Roberts served as Special Assistant to United States Attorney General William French Smith. In 1982 President Reaganappointed Mr. Roberts to the White House Staff as Associate Counsel to the President, a position in which he served until joining Hogan & Hartson in 1986. Mr. Roberts’ responsibilities as Associate Counsel to the President included counseling on the President’s constitutional powers and responsibilities, as well as other legal issues affecting the executive branch.

"At Hogan & Hartson, Mr. Roberts developed a civil litigation practice, with an emphasis on appellate matters. He personally argued before the United States Supreme Court and the lower federal courts, participating in a wide variety of matters on behalf of corporate clients, trade associations, governments, and individuals.

"Mr. Roberts left the firm in 1989 to accept appointment as Principal Deputy Solicitor General of the United States, a position in which he served until returning to the firm in 1993. In that capacity he personally argued before the Supreme Court and the federal courts of appeals on behalf of the United States, and participated in formulating the litigation position of the government and determining when the government would appeal adverse decisions. Mr. Roberts had general substantive responsibility within the Office of the Solicitor General for cases arising from the Civil and Civil Rights Divisions of the Justice Department, as well as from a variety of independent agencies.

"Mr. Roberts has presented oral arguments before the Supreme Court in more than thirty cases, covering the full range of the Court’s jurisdiction, including admiralty, antitrust, arbitration, environmental law, First Amendment, health care law, Indian law, bankruptcy, tax, regulation of financial institutions, administrative law, labor law, federal jurisdiction and procedure, interstate commerce, civil rights, and criminal law.

"Mr. Roberts is a member of the American Law Institute and the American Academy of Appellate Lawyers, and has also received the Edmund J. Randolph Award for outstanding service to the Department of Justice. He is a member of the Bars of the District of Columbia, the United States Supreme Court, and various federal Courts of Appeals."

Distraction

As Joe at AMERICAblog commented, "This is a whole new ball game. And timed to distract us all from Katrina. ... Karl Rove strikes again." To the list of those things requiring distraction must be added House Majority Leader Thomas D. DeLay, who was indicted on September 28, 2005, Senate Majority Leader Bill Frist who is under investigation by the Securities and Exchange Commission for insider trading, and Rove himself, who is under investigation for his role in the outing of CIA operative Valerie Plame.

Impeachment brooks bros?

In the October 1, 2005, "Taking a Dive," "pessimist" of The Left Coaster compared photographs of Roberts and video stills of someone who could clearly be his double:

"The images were taken from video shot inside the Miami Dade County building when GOP activists, led by propagandist Jim Wilkinson (later the head of the Coalition Media Center in Doha during the war, and media at the 2004 GOP convention in New York), stormed the recount. They aimed to stop it with a disruptive protest, charging 'voter fraud.' They claimed, but could not prove, that the Miami election commissioners were stealing votes for Al Gore -- who most observers believe would have won the election if all the votes had been properly counted."

"If it can be shown that Roberts was in Florida assisting with the effort to illegally subvert the will of the people as expressed through voting, that would constitute an act of malfeasance, something necessary to impeach a sitting Supreme Court Justice. Then all we would need would be a Congress that was able to act on this," "pessimist" wrote. "Somehow, thanks to many factors, I suspect that this isn't going to be, and the American Experiment will have ended once and for all. ... I hope Red State America is proud of itself."

Related SourceWatch Resources

Bush's judicial nominees

External links

Profiles

John G. Roberts, Jr. in the dKosopedia.
John G. Roberts biography, Office of Legal Policy, US Department of Justice website.
John G. Roberts, Circuit Court Nominee Profile, National Council of Jewish Women, circa 2001/2003.
John G. Roberts, nominee to the Court of Appeals for the District of Columbia, Traditional Values Coalition, 2003.
Potential Nominee Profile--Judge John G. Roberts, Supreme Court Nomination Blog, June 8, 2005.

Data

Changes at the US Supreme Court: John G. Roberts. Timeline posted on New York Times website.
John G. Roberts' Federal Campaign Contributions (1993-2000) posted on NewsMeat.com website: $3,735 Republican; $7,450 special interest; total: $11,185.
2003 Financial Disclosure Form from Roberts' Senate confirmation to the Appeals Court; posted on CourtingInfluence.net website.
Questionnaire from Robert's Senate confirmation to the Appeals Court; posted on CourtingInfluence website.
NARAL, John G. Roberts, Nominated to the U. S. Court of Appeals for the District of Columbia, June 2001, and Fact Sheet (pdf), July 2005.

Judicial Records & Opposition

John G. Roberts, OYEZ. U.S. Supreme Court Multimedia, undated.
Report and Recommendations for the Project for the Independent Counsel Statute, Brookings Institution/American Enterprise Institute, May 1999. Committee members: Robert Dole and George J. Mitchell, Co-Chairs; Zoë Baird, Drew S. Days, III, Carla Anderson Hills, Bill Paxon, John G. Roberts, Jr., David E. Skaggs, Dick Thornburgh, and Mark H. Tuohey III.
"John G. Roberts, Jr.: U.S. Court of Appeals for the District of Columbia," Free Congress Foundation’s Judicial Selection Monitoring Project, June 8, 2001.
"Report of the Alliance for Justice: Opposition to the Confirmation of John G. Roberts to the U.S. Court of Appeals for the D.C. Circuit," Independent Judiciary, 2003. (14-page pdf).
Brian Fletcher, "Selected opinions by Judge Roberts," Supreme Court Nomination Blog, July 19, 2005.

Websites

*Supreme Court Nomination* Blog website.

Articles & Commentary

2001

"President Names Eleven Extraordinary Lawyers to the Federal Bench," United States Senate Republican Policy Committee, May 9, 2001.
"Who's Who Among the Bush Judicial Nominees, Part I," American Lawyer Media, May 14, 2001. Posted on Free Republic website.

2003

NARAL Pro-Choice America, Letter Opposing the Confirmation of John Roberts to the United States Court of Appeals for the District of Columbia, February 13, 2003.
"Panel Spars Over Roberts Nomination," Fox News, May 1, 2003.

ROBERTS 2 CHIEF JUSTICE

Timeline...

Why John Roberts’ image as a 'moderate centrist' is total 'hogwash': analysis

Supreme Court has three lawyers who worked on Bush v. Gore

John Roberts’ conservative SCOTUS majority 'rigging the docket' against voting rights: analysis

justice Roberts took ‘clear swipe’ at Kavanaugh in opinion siding with liberals in religion case: report

Chief Justice Roberts lets Senate Republicans show blatant disdain for impeachment proceedingsJoan McCarter / Daily Kos

Republicans won’t be able to override ‘wild card’ Chief Justice Roberts during impeachment trial — here’s why

Supreme Court’s newest move on abortion approves torture for pregnant peopleCommon Dreams

‘A requiem for American democracy’: 5-4 Supreme Court vote rules partisan gerrymandering is ‘beyond the reach of the federal courts’

'Pure Conjecture'?

What This Could Mean for Future Rules

Judge Brett Kavanaugh and Climate Change

Conservatives Want to Wipe Out Coal Rules…Over a Typo

A federal appeals court took a red pen to Obamacare. The president's signature environmental achievement could be next.

2005 Supreme Court Nomination

Judicial Background

Federalist Society

2000 presidential election

Quotes

Profiles

Distraction

Impeachment brooks bros?

Related SourceWatch Resources

External links

Profiles

Data

Judicial Records & Opposition

Websites

Articles & Commentary

2001

2003

John G. Roberts, Jr.: External Links 2005