sandra day o'connor

main broke

she and souter pals, both moved to center?

===

an 5 24

alternet-no lnx

The supreme scheme: How Alito and Thomas are fueling the ongoing Trump coup

Associate Supreme Court Justice Clarence Thomas sits with his wife and conservative activist Virginia Thomas while he waits to speak at the Heritage Foundation on October 21, 2021 in Washington, DC. (Photo by Drew Angerer/Getty Images)

Thom Hartmann May 20, 2024

Senator Dick Durbin, chairman of the Judiciary Committee, needs to act.

Supreme Court Associate Justice Sam Alito was just caught red-handed promoting Trump’s fascist “stop the steal” campaign to overthrow the 2020 election and end democracy in America by flying the upside-down flag at his home. He then went on Fox “News” and lied that it was his wife’s fault and that she did it because schoolchildren at a nearby bus stop saw a neighbor’s “F*ck Trump” yard sign.

In fact, as the Lincoln Project’s Steve Schmidt pointed out this past weekend:

“Mrs. Alito was so alarmed by the degradations and profane, yet protected speech that she went immediately home, and inverted the American flag signaling distress. Here’s the problem: there were no school buses and no school children on them in January 2021 in Alexandria, Virginia. Schools in the city were closed for a full year as a result of the pandemic and didn’t re-open until March 2021.”

READ: America in the final stage of a 40-year transition

But Alito’s fingers were apparently far deeper in the January 6th coup attempt than most Americans realize. Trump lawyer Sydney Powell pointed out on Stew Peters’ rightwing YouTube channel that she, Louie Gohmert, and Kari Lake (among others) had filed a lawsuit against Vice President Mike Pence to prevent him from certifying the Electoral College vote on January 6th.

It was a legal attempt to try to do what Trump sent a mob to do when the legal strategy failed:

“We were filing a 12th Amendment constitutional challenge to the process that the Congress was about to use per the Electoral Act provisions that simply don’t jibe with the 12th Amendment to the United States Constitution, and Justice Alito was our circuit court justice for that. Louie Gohmert was the plaintiff in our lawsuit and we were suing the Vice President to follow the 12th Amendment as opposed to the Electoral Count Act.” (emphasis mine)

The 12th Amendment, ratified in 1804, is the provision under which a contested election for president gets thrown to Congress, as happened in the 1876 election where Democrat Sam Tilden got more electoral and popular votes than Republican Rutherford B. Hayes by the first count.

That election ended up thrown to the House because three states had submitted two sets of Electoral College votes (just like Trump’s are fake electors), so Congress cut a deal to end Reconstruction in exchange for making Hayes president, even though he arguably lost the election.

The lawsuit, filed by Gohmert, Kari Lake, and a handful of Republican operatives, demanded the delay so Republicans on the Supreme Court could decide who’d be president, just like they did in the 2000 election. It called for:

“[R]espondent Vice President of the United States to refrain from invoking the dispute-resolution provisions of the Electoral Count Act of 1887 … for the duration of this Court’s consideration of a timely filed petition for a writ of certiorari. As set forth in the argument below, the ECA violates the Electors’ Clause, the Twelfth Amendment, and the Constitution’s structural protections of liberty.”

If Alito would rule that Pence must defer to Congress per the 12th Amendment, the election of 2020 would be thrown to the House with each state having one vote. There, the presidency would have gone to Trump 27-23, because 27 states’ congressional delegations were then controlled by Republicans.

This was not a brand-new or hastily organized plan. I wrote on March 13, 2020 — eight months before the election — that Republicans I knew in Washington DC had informed me that the Trump folks were planning this exact strategy.

And, sure enough, here it was, with Sam Alito as the inside man.

The invasion of the House chamber by the “stop the steal” traitors was, by the theory of this plan, supposed to delay the counting of electoral college votes at least for a day, to give Alito time to act on the next day, January 7th. He and the courts would then rule that the 12th amendment took precedent to law made since then, Congress would declare Trump the winner, and that would be the end of the discussion.

But Nancy Pelosi got wind of the plot and blew it up by re-convening Congress at 8 pm to count the votes, just two hours after the last of the rioters had left the building and before Alito could rule. As Trump‘s senior attorney Powell told Peters:

“Nancy Pelosi had finagled to file an amicus brief in it — there had been inside goings on in Congress where I believe it was Steve Scalise and [Speaker Kevin] McCarthy [who] kept her from being an actual party; she wanted to work herself inside the case as a party but somehow that didn’t happen — so she got notice when we made our filing because she’d filed an amicus brief. And then everything broke loose and she really speeded up reconvening Congress to get the vote [count] going, or [Bill Barr’s] Justice [Department] might have issued an injunction to stop it all, which is what should have happened.”

In the end, Alito had to turn down the lawsuit on the morning of January 7th because Congress had already voted to certify the election for Biden.

As a result, we’ll never know how close we came to having a single corrupt Supreme Court justice overturn the election, but that flag flying outside his house gives us a pretty good clue as to what he may well have done the morning of January 7th had Pelosi not quickly acted the previous evening.

But Alito’s attempts to overturn our democracy weren’t limited to his support for Trump’s treasonous acts on January 6th. Were it not for Alito, Clarence Thomas, and at least two other Republicans on the Court, Donald Trump would by now have almost certainly been convicted in federal Judge Tanya Chutkan’s courtroom of seditiously trying to overthrow our government.

That federal criminal case was rapidly moving along when Trump’s lawyers made the absurd assertion that he was immune from prosecution for his attempted sedition because of a brand new, previously unheard of, and totally bizarre, made-up doctrine of presidential immunity. Even Richard Nixon didn’t have the cojones to try that one: he simply admitted his guilt and accepted a pardon to avoid going to prison.

It only takes four members of the Court to grant certiorari, allowing the Court to hear a case: four or more Republicans on the Court went out of their way to give Trump the delay he desperately needed. On February 28th, they granted cert and scheduled oral arguments for the very last day of their 2023-2024 session, the week of April 22nd.

To add insult to the injury to our republic, in oral arguments Alito dropped this little bomb on America, turning the case against Trump inside-out and claiming Trump should get a free pass to crime all he wanted:

“I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully, if that candidate is an incumbent?

“All right. Now if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?

“And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.”

Thankfully, at least for the historical record, the Attorney representing Jack Smith’s Justice Department, Michael Dreeben, immediately replied:

“I think it’s exactly the opposite, Justice Alito.”

But Alito, not Dreeben, is on the Court and is the decision-maker. Alito thus gave — and continues to give — Trump a desperately needed further delay by slow-walking his own part of the Court’s decision in the Trump immunity case.

Even if they rule against Trump, which everybody assumed would happen before Alito dropped that rhetorical turd into the proceeding, by giving Donny the delay he wanted, the Republicans on the Court reduced the chance that Trump will ever be held to account for his crimes.

While the Court typically releases their decisions during the summer, they have the option of waiting as long as they want — even until well past the November election date. So, if Trump is elected, he can fire Jack Smith and end the prosecution himself.

And it’s not like Alito and Thomas don’t have a stake in this fight. If Biden is re-elected, by the 2028 election Alito will be 78 and Thomas 80. Insiders have speculated that both would like to retire soon and have their replacements appointed by a Republican president.

And it won’t be the first time a corrupt Republican on the Court threw an election just to insure that body remained in Republican hands. You’ll recall, in 2000 Sandra Day O’Connor’s husband told friends that the reason she voted to stop the Florida Supreme Court-ordered recount and make George W. Bush president was simply because she didn’t want Al Gore to choose her replacement.

Arguably the most galling part of this entire pathetic drama is the response of Democrats with subpoena power in the US Senate. Judiciary Committee Chairman Dick Durbin, for example, issued a miserably weak request for Alito to recuse himself from cases having to do with January 6th, rather than demand the man resign and calling a hearing to make it happen.

We all know what would have happened if the shoe was on the other foot.

A Republican-controlled Senate confronting a Democratic Supreme Court appointee accused of corruption would be holding nationally televised public hearings, dragging that justice and his family and intimates before Congress for a grilling, and demanding both prosecution and impeachment.

That’s exactly what happened in the spring of 1969, when Republicans on the Senate Judiciary committee — along with a coordinated effort by President Nixon and Republicans in the media — accused the most liberal member of the Court, Abe Fortas, of being corrupt.

This was Nixon’s chance to flip the balance of the Supreme Court, while conservatives across the nation were still angry about the Brown v Board decision.

Fortas had taken a $20,000 payment from a man he’d defended years earlier; the man hadn’t been able to pay at the time, and finally came up with the money a year or so after LBJ put Fortas on the Court. Not exactly a crime, by any measure.

Fortas was also paid a $15,000 advance for a book he wrote, and Republicans alleged his wife had evidence of tax evasion, although it later turned out that charge was entirely manufactured out of thin air. No crimes here, either.

Nonetheless, the complaints about “Supreme Court corruption” and accompanying threats and pressure from Congressional Republicans against Fortas and his wife — and the firestorm in the media stirred up by Republican commentators — was so intense that Fortas resigned on May 14, 1969 just to get the torture to stop.

Consider that when you think about Alito’s wife hanging the upside-down flag, or her close association with hard-core rightwing causes including her alleged involvement in “Operation Higher Court.” Or Ginni Thomas’ involvement with the January 6th coup attempt itself, texting Trump Chief of Staff Mark Meadows:

“Watermarked ballots in over 12 states have been part of a huge Trump & military white hat sting operation in 12 key battleground states,” and “Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc.) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition.”

Keep in mind that in the 2016 election, the singular thing that caused millions of Republicans — who otherwise considered Trump a fraud, con man, and sexual pervert — to vote for him was that Mitch McConnell was holding Merrick Garland’s seat on the Supreme Court open.

As Vox reported:

“One in five [2016] voters told CNN in an exit poll that the Supreme Court was one reason they had cast a ballot. Of the voters who said it was the ‘most important factor’ in their decision, 56 percent voted for Trump. According to the Washington Post, 26 percent of all Trump voters polled said that the Supreme Court was the basis of their decision.”

This fall, the corruption of the Supreme Court by corporate, billionaire, and fossil fuel interests should be at the top of Biden’s re-election campaign: polls show a majority of Americans are horrified by it.

Both Thomas — whose bribe-taking in exchange for his votes on Citizens United and other cases is well documented — and his rightwing buddy Sam Alito must resign or face impeachment. If Republicans could pull it off against a totally innocent Abe Fortas back in the day, Democrats should be able to do it now against two guys whose corruption is obvious to everybody.

Democrats in Congress — particularly on the Senate Judiciary Committee — need to grow a damn spine and make it happen.

NOW READ: The Supreme Court's wealth-driven corruption crisis

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an 5 23

New documents reveal how Sandra Day O’Connor helped George W. Bush claim victory in 2000

Alex HendersonMay 03, 2023

Compared to the tensions and violence that followed the United States' 2020 presidential election, 2000's Bush v. Gore looks like a minor skirmish. Then-Vice President Al Gore, the Democratic presidential nominee, initially questioned his loss in Florida. But eventually, Gore conceded, acknowledged Republican George W. Bush as president-elect and offered his congratulations.

Whenever Gore was later asked if he believed the 2000 election was stolen from him, he would respond, without hesitation, that he considered Bush the loyal opposition. Gore criticized Bush from a policy standpoint during his eight years in office, but never questioned his legitimacy as president. Former President Donald Trump, in contrast, continues to make the false, thoroughly debunked claim that the 2020 election was stolen from him through widespread voter fraud.

But in 2000, the U.S. Supreme Court's controversial ruling in Bush v. Gore inspired a lot of heated debates. Joan Biskupic, CNN's Supreme Court analyst, looks back on Justice Sandra Day O'Connor's influence in Bush v. Gore in an article published on May 3.

READ MORE: Here are 6 ways to combat an imperial Supreme Court

According to Supreme Court documents released on May 2, Biskupic emphasizes, Ronald Reagan appointee O'Connor, "provided the early framework that steered the outcome in the dispute over the 2000 presidential election and ensured George W. Bush would win the White House over Al Gore."

The High Court's 5-4 Bush v. Gore ruling, much to the chagrin of many Democrats, stopped county vote recounts in Florida. And all five of the justices in the majority were Republicans: O'Connor, fellow Reagan appointees Anthony Kennedy and Antonin Scalia, George H.W. Bush appointee Clarence Thomas and then-Chief Justice William Rehnquist (a Richard Nixon appointee).

"The documents opened at the Library of Congress help reveal how the now-retired O’Connor, the first woman on the High Court and a justice steeped in politics from her early days in the Arizona Legislature, partnered with Justice Anthony Kennedy, effectively squeezing out an argument advanced by then-Chief Justice William Rehnquist," Biskupic explains. "The strong hand of O'Connor, who was at the ideological center of the Court in this era, is not wholly surprising. O'Connor was also known for trying to get out ahead of deliberations, and her four-page memo was circulated to colleagues even before oral arguments."

The four dissenters included two Democratic appointees (Ruth Bader Ginsburg and Stephen Breyer) and two GOP appointees (David Souter and John Paul Stevens).

READ MORE: How two conflicting federal court decisions led to the Supreme Court’s abortion pill ruling

Biskupic notes, "O'Connor's views, expressed in a December 10, 2000, memo, were endorsed by fellow conservative-centrist Kennedy as he took the lead in writing the unsigned 'per curiam' opinion issued late on the evening of December 12, the new documents show. The shared views of O'Connor and Kennedy eventually forced Rehnquist to abandon his effort to author the main opinion with a boundary-pushing view of federal election principles — views that would come up during Donald Trump's attempt to overturn the 2020 presidential election."

READ MORE: AOC rebukes Alito 'tantrum' and 'highly politicized' Supreme Court

Read Joan Biskupic's full CNN article at this link.

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https://historynewsnetwork.org/article/158887

Reagan is a revered figure in American life. Certainly, liberals are critical of his legacy on many counts. But Americans in general rank him as one of our greatest presidents, perhaps most of all because of his role in ending the Cold War.

Yet a specter hovers over Reagan’s reputation, one too little addressed by historians. This is his disturbing record on issues of race and civil rights.

There has been much fine history written in recent years about the white “backlash” against the progress of racial equality in American life, a backlash dating back to the 1940s. Yet, rather oddly, Reagan and Reaganism—the broader political tendency he represented, which generally favored limited government at home and military supremacy abroad—have not figured centrally in these counter-histories to the era of progressive strides toward freedom. Ronald Reagan was the most successful and effective white backlash politician in the post-Brown era, and the conservative appeal to white voters as white voters was a central component in the broader politics of Reaganism.

Reagan opposed the Civil Rights Act of 1964 and the Voting Rights Act of 1965. After these historic measures were firmly in place, Reagan—perfectly representing broader tactical shifts within the conservative movement—pivoted to a new stance. Now he supported individualistic civil rights protections, but he framed the new danger on the race front as that of “quotas,” by which he meant affirmative action.

I know of no instance where Reagan explicitly acknowledged his change of position on civil rights, although perhaps such evidence exists somewhere. “Certainly no one of us would challenge government’s right and responsibility to eliminate discrimination in hiring and education,” he told one audience when he ran for president in 1976. Actually, Reagan had spent years “challenging” exactly this. Reagan went on to say, “If your ancestry is Czechoslovakian, Polish, Italian, or if you are of the Jewish faith, you may find yourself the victim of discrimination” in favor of presumably less deserving African Americans, because of affirmative action policies.

Reagan’s exploitation of racial tension proved more a political tool for gaining power in the 1980s than an essential component of Reaganite governance. This, however, does not mean that Reagan’s racial backlash politics played no role in his policymaking. It was something he believed in, but, as a politician of great skill and calculation, Reagan made necessary compromises on race matters.

After Reagan became president in 1981, he pursued no onslaught against affirmative action. Some Republicans supported at least some forms of this policy, and the issue had done its necessary work for Reagan, helping him with certain segments of the electorate as he captured the White House. Instead of issuing executive orders curtailing affirmative action, Reagan chose the slower course of naming executive and judicial appointees who showed little zeal for civil rights enforcement in general. The Justice Department’s Civil Rights Division, as well as the Equal Employment Opportunity Commission, now chaired by Clarence Thomas, became far less active. Most important were Reagan’s judicial nominees, including Sandra Day O’Connor, who became the stealth conservative on the U.S. Supreme Court, her reputation as a moderate—based largely on her unwillingness to overturn Roe v. Wade—belied by her lead role in decisions that undid certain affirmative action policies and the cold treatment she generally gave plaintiffs of color who alleged discrimination.

The racial politics of Reaganism are displayed in two legislative episodes. In 1982, Reagan signed a twenty-five-year extension of the Voting Rights Act, maintaining the need for “preclearance” with the U.S. government for any change in voting laws in a list of jurisdictions with ugly histories of political apartheid. Reagan’s popularity was at a low point; the deep recession of 1981-82 had put him back on his heels politically. Non-southern Republicans in Congress did not want to go to the mat to get the largely southern jurisdictions covered by the Act out from under the preclearance burden. So Reagan signed the extension, compromising his principles. (In 2013, the U.S. Supreme Court vitiated the preclearance provision of the Act.)

In 1988, with Reagan’s presidency waning, he vetoed the Civil Rights Restoration Act, which Congress had passed after forging a bipartisan coalition designed to undo the Supreme Court’s Grove City College decision of 1984, which had opened the door to discrimination against all legally “protected classes” by private educational institutions and other organizations. By this time, Reagan had little clout on Capitol Hill and there was not much of a White House operation designed to sustain the veto. With no elections left to run, Reagan was making a point and demonstrating his convictions. His explanation for his veto—which Congress quickly overrode—was that the pending law would “unjustifiably extend the power of the federal government over the decisions and affairs of private organizations.” This was anti‒civil rights boilerplate; he could have used the same words to explain his opposition to the Civil Rights Act of 1964.

In 1984, when Reagan won an historic reelection victory, 85 percent of Americans casting votes were white. Reagan got about two thirds of their votes. This by itself spelled a huge win for him. This is not to say that white voters all voted for Reagan because they were white. But Reagan rode the white backlash—along with other major issues, to be sure—farther than anyone else ever did in American history, before or since. It is long since time that historians of Reagan, Reaganism, and the 1980s overcame their reluctance to tell this basic part of that era’s history plainly.

https://truthout.org/articles/unequal-protection-protecting-corporate-liars/

the first direct shot across the bow of the doctrine of a corporation’s “right to lie” by using its “personhood” to claim First Amendment “free speech” rights came in April 1998, when Mark Kasky, a California political activist, noticed that Nike was engaged in what he considered to be a deceptive greenwashing campaign. Kasky had long been a runner and wore Nike shoes, so he was particularly distressed when he saw Nike’s communications director, Lee Weinstein, publish a letter in the San Francisco Examiner in December 1997 that said, in part, “Consider that Nike established the sporting goods industry’s first code of conduct to ensure our workers know and can exercise their rights.”2

This letter was just a small part, it turned out, of a national campaign by Nike to convince the American public that it was making sure that its contractors and subcontractors were treating their employees in Asia well. The year before, Steve Miller, Nike’s sports marketing director, pledged in a letter to athletic program directors and presidents of U.S. universities that Nike’s manufac turers complied with “government regulations regarding minimum wage and overtime as well as occupational health and safety, environmental regulations, workers’ insurance, and equal opportunity provisions.”3

What Nike wasn’t mentioning, but which was leaked to the press in 1997, was a 1996 audit of one of the company’s overseas factories (this one in Vietnam) by Ernst & Young. The audit, which Nike had commissioned but then tried to keep secret, documented how workers in the Vietnamese factory were exposed to cancer-causing solvents like acetone and toluene in ways that would have been flatly illegal in the United States and were not protected from deafening levels of noise; it also raised a series of questions on other workplace issues. As Mother Jones documented in a February 2001 article (“Greenwashing on Trial” by Josh Richman), “another Nike-funded study found evidence of physical and verbal abuse and sexual harassment at nine of its contract factories in Indonesia.”4

kasky was outraged that Nike held itself out as the model corporate citizen. He told filmmaker Lori Cheatle (for her movie This Land Is Your Land, which also features Naomi Klein, Thomas Frank, Jim Hightower, and me, along with seven others):“The Nike code of conduct stated that they maintained the highest standards of health, worker safety, and compensation, and they used that to market their products. So I felt very upset when I realized that a lot of the representations they were making might not be true.”

He and a lot of people in California were buying Nike products under false assumptions or misrepresentations, so he called an attorney and decided to take the company to court.

Kasky went to attorney Alan Caplan (of the “Joe Camel” cigarette lawsuit fame), and together they invoked a rather unique California law that allowed individuals to behave as if they were the state’s attorney general and sue companies for fraudulent or other illegal practices, producing what would ultimately become the Supreme Court case Kasky v. Nike.

[vid 404 The Daily Take: Why Fox News has the Right to Lie to Us]

in 1999 the case was dismissed by San Francisco Superior Court Judge David Garcia, who suggested that Nike’s right to lie—to “free speech”—was protected by the First Amendment of the U.S. Constitution. Kasky and Caplan appealed to the U.S. Court of Appeals, where, in March 2000, that court ruled against Kasky again, with Justice Douglas Swager arguing that Nike was only promoting its products, as any company would, could, and should be able to do in a world of corporate “persons” endowed with free-speech rights.

His comment specifically noted that Nike’s use of inaccurate letters to the editors in newspapers across America, letters telling untruths to university presidents, and other false statements to the press were “within the core area of expression protected by the First Amendment.”

Undeterred, Kasky carried his suit to the California Supreme Court, which ruled in May 2002 (by one vote, 4 to 3) that Nike had violated the California laws against unfair competition and false advertising. The Supreme Court justices didn’t, however, challenge the notion that First Amendment protections didn’t extend to commercial “speech” by corporations; instead they suggested that such rights should be limited to the commercial interests of the corporation and that the action of Nike in this case “bears only a tangential relation to commercial transactions.”

At that point Nike decided that, rather than pay the fine and change its business practices, it would take the case all the way to the U.S. Supreme Court, where a very curious thing happened.

The Supreme Court typically gets more than ten thousand requests every year to hear cases. It has a small army of clerks and lawyers (usually including clerks for the justices—Samuel Alito chooses not to have his clerks participate—known as the “cert pool”)who filter through them to find the ones that have reasonable merit and which the justices may be interested in hearing. The Court as a whole then considers the thousand or so that survive the culling process, further reducing the caseload for the year to a number typically around one hundred total cases (it takes the votes of four justices to grant certiorari, allowing the case to be argued before the Court).

After the Court has gone through all this work to whittle down its case-load, each case comes before the justices in two ways. First, both parties to the case file their own legal briefs or arguments in writing.Second, interested parties—“friends” of either side (by virtue of association or concern for the issue behind the case)—file Friend of the Court, or amicus curiae, briefs, adding their voices to the arguments. Then the justices hear oral arguments, which these days are limited to thirty minutes for each side, after which each justice and his or her staff retire to their offices to consider the arguments, more carefully look over the amicus briefs, and correspond with other justices about each case.

Eventually—typically over a period of a few months—a consensus emerges or a vote is taken, and on each case the Court decides who wins or loses. The justices then write agreements or dissents with or from the majority opinion, and when all is ready for the public they announce their decision.

Except in the Kasky case.

The Court did agree to hear the case, in the 2003 session. The justices heard the oral arguments on June 26. They accepted the amicus briefs—including filings from companies that included ABC, Inc.; the American Society of Newspaper Editors; the Associated Press; Forbes, Inc.; Fox Entertainment Group; Gannett Company; the Hearst Corporation; the McClatchy Company; the National Association of Broadcasters; the National Broadcasting Company (NBC); National Public Radio, Inc.; the New York Times Company; Newsweek, Inc.; PR Newswire; the Seattle Times Company; Time, Inc.; Tribune Company; U.S. News & World Report; and the Washington Post Company—all agreeing with Nike.

ExxonMobil, Bank of America, and Microsoft filed their own three-company brief on behalf of Nike, and similar separate filings came from the National Association of Manufacturers, Pfizer, and the U.S. Chamber of Commerce, among others.

Even the American Civil Liberties Union (ACLU) filed a brief defending Nike’s right to “free speech” as a “person” in America.The legal department of the AFL-CIO (American Federation of Labor and Congress of Industrial Organizations) filed a brief defending Nike’s “right to lie” (it is true that as persons we have a “right to lie” except in particular cases such as when under oath). Even the very liberal New York Times columnist Bob Herbert wrote an impassioned op-ed supporting Nike’s right to deceive the public. All three mistakenly believed that corporations had had First Amendment rights since 1886, and all three were strong advocates of the First Amendment. And the AFL-CIO, of course, was a corporation itself, albeit a unique nonprofit form of incorporation.

There was also a loud public debate on the issue. Citizen activist groups picketed the Supreme Court, decrying corporate personhood and the entire idea that constitutional protections like free speech should be granted to corporations instead of being the exclusive province of humans, while the New York Times, the Wall Street Journal, and the Washington Post (among others) ran shrill editorials warning of dire consequences for the future of capitalism and democracy if corporations weren’t finally and fully granted the constitutional right of free speech.

The Court then heard the oral arguments, in which Kasky’s lawyers, Alan Caplan and Philip Neumark, revisited the series of very specific lies that they asserted Nike had told the American public in their original lawsuit. They said that Nike:

In order to maintain and/or increase its sales, made misrepresentations by the use of false statements and/or material omissions of fact, including but not limited to the following:

(a) claims that workers who make NIKE products are protected from and not subjected to corporal punishment and/or sexual abuse;

(b) claims that NIKE products are made in accordance with applicable governmental laws and regulations governing wages and hours;

(c) claims that NIKE products are made in accordance with applicable laws and regulations governing health and safety conditions;

(d) claims that NIKE pays average line-workers double-the-minimum wage in Southeast Asia;

(e) claims that workers who produce NIKE products receive free meals and health care;

(f) claims that the GoodWorks International (Andrew Young) report proves that NIKE is doing a good job and “operating morally”; and

(g) claims that NIKE guarantees a “living wage” for all workers who make NIKE products.5

Nike, for its part, argued that when it hired former UN ambassador and Atlanta mayor Andrew Young to check them out, he found that everything was hunky dory: “Although some news organizations concluded that some allegations against Nike had merit, former United Nations Ambassador Andrew Young concluded in an independent review commissioned by Nike that the charges were largely false.”6

Further, Nike’s lawyers said that when the California Supreme Court concluded that it was okay for Marc Kasky to use the consumer protection laws to hold Nike accountable for what it said to the public, it was way too broad a use of the laws against fraud or deception in commerce. Nike’s lawyers wrote: “The California court’s conclusion that government may regulate all statements of fact by commercial entities that could influence consumers sweeps far too broadly…”

Nike’s lawyers also didn’t like the law in California that let an individual act as if he were the attorney general: “The private attorney general provisions of the UCL and FAL thus violate the First Amendment because they omit not only any requirement that the plaintiff have suffered harm, but also any other meaningful constraint on the ability of private plaintiffs to bring lawsuits…” which could impose a “crushing burden” on a multibillion-dollar corporation like Nike.

And, finally, calling implicitly on the doctrine that a corporation is a person protected by the Bill of Rights, Nike argued: “Even if petitioner’s [Nike’s] statements could be characterized as ‘commercial speech,’ the legal regime approved by the California Supreme Court violates the First Amendment.” In other words, “We’re a company, which is the same as a person, and so we have the First Amendment right to say whatever we want, just like anybody else. To say that we have to only say things that are accurate violates our First Amendment right of free speech.”

All of this was laid before the Court. There were multiple dimensions to the case, but at its heart was the issue of whether a corporate “person” had the same “right to lie,” guaranteed by the First Amendment to the U.S. Constitution, as you and me. If I can tell my wife that she looks great in a dress that I really think is ugly (but know she loves), Nike had the right to tell Americans that it was treating its workers well (even though it wasn’t and knew it).

But something caught in the Court’s throat. Chief Justice William Rehnquist, with six of his colleagues, decided that the Court had made a big mistake when it granted a writ of certiorari, the declaration that the case was legitimate and appropriate for the Court to hear.

Remember that it was Rehnquist who, in the earlier First National Bank of Boston v. Bellotti case (mentioned in chapter 1), had said that he disagreed with what he believed was the decision of the Supreme Court in 1886, that corporations were persons. And, interestingly, the attorneys who crafted the amicus brief on behalf of Marc Kasky took special pains to point out—with the hope that Rhenquist would read it and have a “EUREKA!” moment—that the Court had actually never created corporate personhood in 1886.

Quoting from the first edition of this very book, Kasky’s attorneys wrote directly to Rehnquist in their brief:

Indeed, the initial grant of “personhood” under the Fourteenth Amendment to corporations was, to a certain extent, a judicial mistake. Corporate person-hood is generally attributed to the Court’s decision in Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886), although the Court in that case specifically declined to address the issue. In Santa Clara County, Santa Clara County sued the Southern Pacific Railroad Company for failure to pay taxes, and the railroad presented the Court with six defenses, including the argument that corporations were persons under the Equal Protection Clause of the Fourteenth Amendment. Because one of the other five defenses was successful, the Court had no occasion to decide the question of corporate personhood and specifically declined to do so:

If these [other] positions are tenable, there will be no occasion to consider the grave questions of constitutional law upon which the case was determined below; for, in that event, the judgment can be affirmed upon the ground that the assessment cannot properly be the basis of a judgment against the defendant.

As the judgment can be sustained upon this [other] ground, it is not necessary to consider any other questions raised by the pleadings and the facts found by the court.

Id. at 411, 416. Indeed, in a companion case, Justice Field in a concurring opinion lamented that the “tax cases from California” did not “decide the important constitutional questions involved.” County of San Bernardino v. Southern Pac. R. Co., 118 U.S. 417, 422 (1886) (Field, J., concurring).

Nevertheless, it appears that the court reporter, J.C. Bancroft Davis, included a headnote stating, “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.” See Thom Hartmann, Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights 107 (2002) (quoting J.C. Bancroft Davis, 118 United States Reports: Cases Adjudged in the Supreme Court at October Term 1885 and October Term 1886 394 (Banks & Brothers Publishers).7

In other places in the brief, its authors took special pains to point out how Santa Clara had been misinterpreted over the years. (One sentence, for example, begins, “Notwithstanding the mistaken ‘personification’ of corporations in Santa Clara, the Court’s subsequent rulings reveal that this Court has not consistently applied the implications…”)

Every step along the way helped telegraph to Rehnquist that his dislike of what he thought had been decided in 1886 in Santa Clara was a good gut instinct because he was right. Corporations aren’t persons, and the Court had not said they were in 1886!

Nobody knows what happened when this bombshell hit Rehnquist’s desk, as the Court is notoriously secretive. But something big happened because Rehnquist leapt into action—and that action was to decide not to decide the Kasky case. Inexplicably, astoundingly, and virtually without precedent, Rehnquist and most of his colleagues issued a very, very terse statement.

The single sentence the Court issued said only: “The writ of certiorari is dismissed as improvidently granted.”

In other words, “When we decided to listen to these arguments and look over this case, granting it legal certification before us, we screwed up. Therefore we’re tossing out the certification and going to pretend we never even heard this case or read its briefs.”

While this dismissal represented the thinking of the majority of the Court, Justices Sandra Day O’Connor and Stephen Breyer were incensed. Breyer wrote: “In my view…the questions presented directly concern the freedom of Americans to speak about public matters in public debate, no jurisdictional rule prevents us from deciding those questions now, and delay itself may inhibit the exercise of constitutionally protected rights of free speech without making the issue significantly easier to decide later on.”

But regardless of Breyer’s or O’Connor’s concern that the Court was kicking the can down the road, the case came to a halt, and Kasky and Nike settled out of court almost immediately when the California courts granted Kasky the legal right to access Nike’s internal files (known as a grant of discovery). The amount of money Nike paid Kasky’s lawyers to stop at that point and not pursue discovery, rather than legally riffle through Nike’s internal papers, was never disclosed, and Kasky, for his part, agreed with the decision to stop discovery when Nike made a seven-figure gift to an organization that worked to help sweatshop workers around the world.

The world was safe for corporate liars (although California’s citizens were still free to go after them in a limited fashion). Corporate personhood hadn’t been challenged. And the weird coalition of liberals (Bob Herbert and the ACLU) and conservatives (NBC, ABC, the Chamber of Commerce, and others) who worried that ending a corporation’s right to call on the First Amendment would be a disaster for America all breathed a sigh of relief.

Until 2010.

Notes:...

she always insisted it was luck that led to her appointment as the first woman on the US Supreme Court. But Sandra Day O'Connor was ready for her luck. She demonstrated that 35 years ago this summer when Reagan administration lawyers flew to Arizona to interview her as one of several candidates for a court vacancy.

O'Connor appeared an unlikely contender. She was a judge on a mid-level state court and little known beyond Arizona. But earlier, as the first woman state senate majority leader in the country, she had proven herself a shrewd operator in the backrooms of legislative politics. And a serendipitous connection had landed her on the administration's short list.

With the first-ever nomination by a major party of a woman for president, judicial pioneer O'Connor's name has been in the air. Now retired for a decade, she lives quietly at age 86 back in her home state, no longer making public appearances or engaged in the civics education and other projects she took on after she left the bench. Yet her legacy endures. In the recently completed Supreme Court term, significant rulings on abortion rights and university affirmative action relied on precedents crafted by O'Connor.

The high court, still missing a successor to the late Justice Antonin Scalia, has entered a new era of uncertainty. But with Democratic nominee Hillary Clinton dominating in the polls, there is a chance a first woman president's court appointments would protect those liberal-leaning precedents and extend the legacy of the first woman justice even longer.

Neither Ronald Reagan's choice nor O'Connor's influence might have been predicted at the outset. Her path 35 years ago demonstrates how a long-odds nominee gets skillfully positioned to enjoy the luck of presidential selection.

When Supreme Court Justice Potter Stewart sent word that he would be retiring in 1981, Attorney General William French Smith turned to a list of names he had been collecting, including one on a pink telephone message slip he kept on his desk. Many of the possible nominees were women because Reagan, a Republican, had vowed in the heat of his 1980 challenge to Democratic President Jimmy Carter that he would appoint the first woman justice if elected. For two centuries, only men had sat on America's highest court.

According to Smith's notes that I found in the Reagan presidential archive when writing a 2005 biography of O'Connor, Smith had scrawled only her last name on the telephone slip. His aides were initially uncertain just who O'Connor was.

...original source of the Smith note is not fully known (Smith lost track of it after the nomination and has since died), but Fred Fielding, White House counsel, told me then-Chief Justice Warren Burger had been touting her to top administration officials. Burger had met O'Connor in 1979 on a house boat vacation on Lake Powell in Utah with mutual friends. He was impressed and began involving her in extracurricular judicial projects on the national scene.

O'Connor had graduated from Stanford law school in 1952, near the top of her class, but been rejected for positions at large law firms. Women were simply not considered up to the task: one firm offered her a job as a legal secretary. She turned to public service, navigating a county attorney's office, the state legislature, then Arizona courts. Some posts came through political appointment; others required her to mount campaigns and win election.

Along the way, she became a Republican Party loyalist, befriending US Sen. Barry Goldwater and co-chairing President Richard Nixon's 1972 re-election campaign in Arizona.

Reared on a desolate ranch with a demanding father, O'Connor was imbued with a rigorous work ethic and resilience. Smith later wrote that O'Connor, "both in her looks and in her personality, had that same direct friendliness one associates with the wide-open territory where she lived." She also was a natural politician who could size up a room and valued the human touch.

After Smith's team delved into her legislative and judicial record, the attorney general dispatched assistants Ken Starr and Jonathan Rose to Phoenix to interview her. Starr told me years later that he was surprised O'Connor, sitting on an intermediate state court, had drawn Smith's interest.

Chief Justice John Roberts' game of chess

"There was a certain oddity to her being in the mix at all," he said. "Judge O'Connor was in Arizona, not on an impressive court, not in a key state. I was skeptical."

But, he said, "she had clearly prepared for us."

O'Connor had boned up on constitutional issues and was ready for their questions about her judicial philosophy. On a lunch break, O'Connor, who always understood the persuasive nature of a good meal, brought out a salmon mousse salad.

After hearing details of their daylong session, attorney general Smith arranged for O'Connor to fly to Washington to meet with him and key White House officials. Before the week was over, the 51-year-old O'Connor was in the Oval Office with Reagan. The former California governor responded immediately to a woman who could converse about horses and constitutional rulings.

On her courtesy calls with senators, she addressed their questions of legal substance and dropped in mentions to their individual backgrounds and legislative interests. She worked around the clock for her confirmation hearings. Leaving nothing to luck, she pored over piles of briefing books prepared by Department of Justice lawyers. One of those young attorneys helping prep her for questioning had just started on the job: John Roberts, who would eventually be appointed chief justice of the United States.

O'Connor was approved by a Senate vote of 99-0 on September 21 and took the oath of office four days later.

Once on the court, she did not wait for her luck. As happened at the Arizona Capitol, she learned to count votes and broker consensus. Her moderate non-doctrinaire approach bridged her colleagues' dueling ideologies. Over nearly 25 years on the bench, her legal reasoning set standards for abortion rights, religious disputes and death penalty appeals.

After she retired in January 2006, succeeded by the more conservative Samuel Alito, the court shifted to the right. Her opinions, including to uphold abortion rights and racial remedies, were scaled back. During a legal conference in 2009, O'Connor complained that some of her decisions were "being dismantled."

Why Ruth Bader Ginsburg regrets her Trump comments

When I asked how she felt about it, O'Connor, then 79, said, "What would you feel? I'd be a little bit disappointed. If you think you've been helpful, and then it's dismantled, you think, 'Oh dear.' But life goes on."

Her frustration may be short-lived.

The court since the February death of the conservative Scalia is shifting again. The majority's June decision endorsing a University of Texas affirmative action plan bolstered an opinion written by O'Connor in a 2003 dispute from the University of Michigan. Similarly, the court's invalidation of a tough Texas abortion regulation relied on and reinforced a milestone decision O'Connor wrote in 1992 with Justices Anthony Kennedy and David Souter.

Especially striking was how much Kennedy, who authored the opinion upholding the Texas race-conscious admissions policy, drew from O'Connor's 2003 decision in the Michigan case. He had dissented back then, yet in June highlighted her emphasis on the way campus diversity prepares students for today's increasingly diverse society.

For her part, O'Connor used to brush off questions about her influence.

"We try to persuade by the strength of the argument," she told me. "Everyone has a very key vote."

Hers has lasted.