LEO 2 bak

12/17 age of trump, see gorsuch

see lnrd tag, bunch of shell / pass thru

SEE 3 CRC ADVISORS

oops 2 bak

some neglect 420?

html Donahue

see amicus "flotilla"

6-3 majority

GUNS HELLER ETC

SEE AMICUS

-=-=

GGL 8 26

AI Overview

The intersection of these terms involves conservative judicial activist Leonard Leo, his dark-money network, and policy blueprints modeled after the firearms industry's legal protections. While Leonard Leo is not principally known as a funder of the gun lobby itself, his dark-money apparatus and major donors share deep overlaps with corporate liability immunity campaigns. [1, 2, 3]

Leonard Leo and Dark Money Networks

Role: Co-chairman of The Federalist Society and architect of conservative federal court appointments.
Vehicles: Manages massive conservative funding conduits like the Marble Freedom Trust and the 85 Fund.
Connections: Past-affiliated intermediary groups (such as America Engaged) have channeled funds to organizations closely aligned with the gun lobby, including the National Rifle Association lobbying arm during judicial confirmation battles. [1, 2, 3, 4, 5]

The Manufacturer Immunity Playbook

Inspiration: The broad liability shield granted to gunmakers under the federal 2005 Protection of Lawful Commerce in Arms Act (PLCAA).

Current Push: Political allies and dark-money networks tied to Leonard Leo have actively utilized this 2005 gun immunity statute as a strategic model to push for similar sweeping liability waivers in other sectors, such as shielding fossil fuel and chemical corporations from public accountability lawsuits. [1, 2, 3]

Key Funder and Donor Context

Barre Seid: The electronics manufacturing billionaire (former owner of Tripp Lite) who provided a historic $1.6 billion contribution to Leonard Leo’s Marble Freedom Trust. [1, 2]
Nature of Funding: Seid's fortune came from manufacturing, but the capital he handed to Leo is deployed across a broad ideological ecosystem targeting the judiciary, state regulations, corporate governance, and liability protections rather than direct gun-industry operations. [1, 2, 3, 4, 5]

-=-=

kickass yale law

...

B. Donors Funding Amici and Litigants in the Same Case

Thanks to the work of investigative reporters, in recent years we have been

able to observe the rise in high-profile, politically charged cases that are financed

directly by ideological foundations.113 Often the same foundations that fund the

litigation also exploit the courts’ lenient amicus-funding-disclosure rules to

anonymously fund flotillas of amicus briefs that support their preferred out-

comes.

For example, in the orchestrated challenge to union agency-shop fees first

initiated in Friedrichs v. California Teachers Association,:{:{114}::{ }::{one organization bank-}:

rolled not only the nonprofit law firm bringing the case, but also eleven different

organizations that filed amicus briefs supporting the plaintiffs.115 That organi-

zation was the Lynde and Harry Bradley Foundation—a conservative organiza-}:

tion that has long sought to weaken labor rights, including by financing impact

litigation.116 If the disclosure rule were operating to its intended effect, the Court

and parties would have been made aware of that funding. Yet none of those ami-

cus filers disclosed the Bradley Foundation as a source of its funding for the brief

under Rule 37.6, and none of those briefs were rejected by the Court for lack of

disclosure.

The Bradley Foundation’s coordinated and undisclosed funding of the liti-

gants and amici in Friedrichs was not a one-off. In Janus v. AFSCME, the follow-

up to Friedrichs, investigative reporters found that the Bradley Foundationagain

...

163

:{:{funded both of the two groups representing the plaintiffs, as well as a dozen}:

groups that filed amicus briefs.117 Similarly, the two groups representing the Ja-

nus plaintiffs, plus thirteen amicus filers, all received funding from Donors Trust,

mentioned above.118

None of this common funding was disclosed to the Court.

:{:{Finally, in}::{ }::{Seila Law LLC v. Consumer Financial Protection Bureau}::{, eleven amici}:

aligned with the petitioner Seila Law received financial support from the sameentities, which also fund the Federalist Society.119 The Center for Media and De-

mocracy subsequently found that “16 right-wing foundations,” including the

Bradley Foundation and DonorsTrust, “have donated a total of nearly $69 mil-

lion to 11 groups that filed amicus briefs in favor of scrapping the CFPB.”120 None

of this information was disclosed to the Court under its current reading of the

Rule.}:

C. Donors Anonymously Orchestrating Amicus “Projects”

Recently released documents reveal how donors like the Bradley Foundation

use tax-exempt money to coordinate amicus “projects,” in which they influence

court results by funding an array of groups in the same legal network as the Fed-

eralist Society, as presumably occurred in Seila Law.121 :{

:{:{In 2015, a representative}:

of theBradley Foundation emailed Leonard Leo, then Executive Vice President:{

of the Federalist Society, to ask if there was “a 501(c)(3) nonprofit to which Brad-

ley could direct any support of the two Supreme Court amicus projects other

}:}:than Donors Trust.”122 :{:{Leo replied, “Yes, Judicial Education Project}:could take

and allocate.”123 In turn, Judicial Education Project (JEP), a 501(c)(3) tax-ex-

empt organization that does not disclose its donors, submitted a grant proposal

to Bradley seeking $200,000 to coordinate and develop amicus briefs in two po-

litically charged (but otherwise completely unrelated) cases: the aforementioned}:

...

164

Friedrichs and King v. Burwell,124 a challenge to the Affordable Care Act. The

Bradley Foundation estimated that “each of the two amicus-brief efforts costs

approximately $250,000, for a total of $500,000,” and the Bradleystaff recom-

mended a $150,000 grant be given to JEP to support this work.125 The Bradley

staffer explained the strategy behind this investment as follows:

At this highest of legal levels, it is often very important to orchestrate

high-caliber amicus efforts that showcase respected high-profile parties

who are represented by the very best lawyers with strong ties to the

Court. Such is the case here, with King and Friedrichs, even given Bradley’s

previous philanthropic investments in the actual, underlying legal actions.126

In King and Friedrichs, none of the amici supporting the Bradley-funded litigants

disclosed their Bradley Foundation funding under Rule 37.6—or any of their

funding sources for that matter. This nondisclosure resulted from interpreting

the Rule narrowly to require disclosure only of funds intended to cover the costs

of formatting, printing, and delivering the briefs.127

:{....

an ah 3 23

The Religious Right movement, which gained considerable momentum during President Ronald Reagan's 1980 campaign, has had a complex relationship with Catholicism over the years. The Religious Right is dominated by far-right white evangelical Protestant fundamentalists, who are vehemently critical of Catholic practices (the confessional, physical images of Jesus). Yet Republican evangelicals will work with the Catholic right when it comes to fighting abortion or same-sex marriage.

The Catholic right is by no means universally loved by American Catholics. President Joe Biden and former House Speaker Nancy Pelosi (D-California), for example, are both known for being devout Catholics, but they are also major critics of the Religious Right and its influence on the U.S. Supreme Court — which the Catholic right now dominates. Justice Clarence Thomas, Justice Samuel Alito, Justice Brett Kavanaugh and Justice Amy Coney Barrett are all hard-right Catholics and GOP appointees who voted to overturn Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization ruling of 2022.

In contrast, Justice Sonia Sotomayor, a Democratic Barack Obama appointee, is a Catholic who was a dissenter in Dobbs and has been a scathing critic of the High Court's current direction. She even used the word "stench" to express her disdain. Sotomayor is to the left of the Vatican, while Thomas, Alito and Barrett are to the right of the Vatican.

One of the Catholic right's most influential figures is judicial activist Leonard Leo, former executive vice president of the Federalist Society. Leo has spent decades lobbying to push the federal courts to the far right. And according to Politico's Heidi Przybyla, he has made a fortune in the process.

In an article published by Politico on March 1, Przybyla reports, "A network of political nonprofits formed by judicial activist Leonard Leo moved at least $43 million to a new firm he is leading, raising questions about how his conservative legal movement is funded. Leo's own personal wealth appeared to have ballooned as his fundraising prowess accelerated since his efforts to cement the Supreme Court's conservative majority helped to bring about its decision to overturn abortion rights. Most recently, Leo reaped a $1.6 billion windfall from a single donor in what is likely the biggest single political gift in U.S. history."

According to Przybyla, Politico's analysis of "dozens of financial, property and public records dating from 2000 to 2021" shows that Leo's "lifestyle took a lavish turn beginning in 2016." And his fortunes grew considerably during the Trump years, Przybyla reports.

The Politico journalist explains, "The spending by Leo-aligned nonprofits on his for-profit businesses coincided with changes in his personal lifestyle and finances. IRS and other public records between 2016 and 2020 show a major expansion of Leo's personal wealth that coincided with the start of his work for Trump and the creation of his own for-profit entity called BH Group. Both happened in 2016."

The former Federalist Society VP forcefully lobbied for many of the severe social conservatives who are now on the U.S. Supreme Court, including Barrett. In 2016, he encouraged then-Senate Majority Leader Mitch McConnell (R-Kentucky) to do everything he could to derail then-President Barack Obama's nomination of Merrick Garland following the death of Justice Antonin Scalia (a far-right Catholic social conservative). It worked; that seat stayed open until 2017, when then-President Donald Trump appointed Justice Neil Gorsuch — another justice who voted to overturn Roe in 2022. Gorsuch was raised Catholic but has more recently attended an Episcopal church.

Trump was very specific about the type of justices he wanted: hardcore social conservatives. Former Justice Anthony Kennedy was a right-wing fiscally conservative 1987 Reagan appointee, but he was much more of a libertarian than Scalia, Alito or Thomas and often voted with Democratic justices when it came to abortion or gay rights. And that wasn't the type of justice that Trump and Leo wanted.

Przybyla notes, "The Court’s 2022 decision overturning half a century of the federal right to abortion was widely seen as a victory for the conservative legal movement led by Leo. Trump picked his Court nominees from a list drawn up by Leo, who then served as his unofficial adviser in the White House. A constellation of outside groups affiliated with Leo poured tens of millions of dollars in anonymous donor funds into promoting those nominees — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — thereby cementing a new conservative majority for the next generation."

Read Politico's full report at this link.

3 23 raw

Leonard Leo, the right-wing leader of the judicial activist network the Federalist Society, is coming under scrutiny for his "lavish" use of the organization's funds to live the high life, POLITICO reported on Wednesday.

"A network of political non-profits formed by judicial activist Leonard Leo moved at least $43 million to a new firm he is leading, raising questions about how his conservative legal movement is funded," reported Heidi Przybyla. "Leo’s own personal wealth appeared to have ballooned as his fundraising prowess accelerated since his efforts to cement the Supreme Court’s conservative majority helped to bring about its decision to overturn abortion rights. Most recently, Leo reaped a $1.6 billion windfall from a single donor in what is likely the biggest single political gift in U.S. history."

Leo has been a massively influential figure, often called Trump's "judge whisperer" for the outsized role he played in getting right-wing jurists seated who have been involved in everything from dismantling abortion rights, to rolling back voting and redistricting protections, to undermining the regulatory process.

According to POLITICO, which has obtained records of Leo's finances over the last two decades, Leo's personal wealth skyrocketed under President Donald Trump, with whom he worked closely to appoint a steady stream of right-wing judges to the federal bench including three at the Supreme Court — "the same period during which he erected a for-profit ecosystem around his longtime nonprofit empire that is shielded from taxes."

CRC Advisers, the consulting firm he created in 2020, did not respond to questions about what the $43 million is being used for. However, Leo, who led a "middle class lifestyle" prior for most of his time at the Federalist Society, began making extravagant purchases after the former president's election in 2016, including "two new mansions in Maine, four new cars, private school tuition for his children, hundreds of thousands of dollars in donations to Catholic causes and a wine buyer and locker at Morton’s Steakhouse."

Stetson University law professor Ciara Torres-Spelliscy, an expert on campaign finance, told POLITICO, “If millions of dollars in dark money are sloshing around, it makes it really easy for people on the inside to take a cut ... That behavior is, unfortunately, now showing in the judicial nominating process."

This is not the first time questions have been raised about Leo's financial activities. In 2019, The Washington Post flagged that Leo has helped right-wing nonprofits raise $250 million to promote his approved judges, with no transparency in the donors' identity. And another dark-money group, BH Ventures, which contributed $24 million to CRC Advisors and up to $5 million to former Trump adviser Kellyanne Conway's polling firm, shut down shortly after reporters began investigating it.

Alarmed Democrats have responded in force to the Federalist Society's efforts to remake federal courts. Since taking office, President Joe Biden has been confirming judges at an even faster pace than Trump did, with 97 seated in his first two years alone — often from a diverse array of racial and professional backgrounds.

an 1 23

On December 20, 2022, Politico’s Heidi Przybyla reported that right-wing judicial activist and Federalist Society Vice President Leonard Leo appeared to “have helped facilitate” the sale of GOP strategist Kellyanne Conway’s business, The Polling Company, to the firm Creative Response Concepts (CRC) in 2017.Now, a month later, Przybyla is reporting that a “dark money group tied to” Leo was “dissolved” only “three days after Politico inquired about whether it helped to facilitate” that sale.

When Americans complain about the overturning of Roe v. Wade and the radical-right direction of the U.S. Supreme Court, Leo is one of the people they have to thank. Leo, the Federalist Society’s former vice president, played an important role in the appointment of far-right socially conservative justices like Amy Coney Barrett. Leo was a strong Barrett supporter when former President Donald Trump nominated her in 2020, and four years earlier, in 2016, he encouraged Sen. Mitch McConnell to do everything he could to derail then-President Barack Obama’s nomination of Merrick Garland (who is now U.S. attorney general under President Joe Biden).

One-third of the U.S. Supreme Court is now comprised of Donald Trump appointees, all of whom voted to overturn Roe v. Wadein the caseDobbs v. Jackson Women’s Health Organization. And Leo did everything he could to help Trump move the High Court to far right. That is in addition to all of the far-right judges Leo helped bring to the lower federal courts.

Przybyla, in an article published by Politico on January 20, explains, “The BH Fund, which was formed in 2016 with an anonymous $24 million donation, has been a nerve center for distributing millions of dollars around Leo’s network of dark-money groups bolstering former President Donald Trump’s Supreme Court picks. On the day of the 2017 sale of Conway’s polling business to the firm Creative Response Concepts Inc., a lawyer filed similar liens with Virginia regulators for both CRC and BH Fund, which financial experts say suggested the dark money group played a role in financing the transaction, Politico reported in late December.”

The 2017 sale, according to Przybyla, was “valued at between $1 million and $5 million” in Conway’s “federal filings” — and it “raised potential ethical concerns because Conway” was “simultaneously advocating with Trump for some of Leo’s favored judicial candidates.”

“But just three days after Politico’s inquiries,” Przybyla reports, “the BH Fund closed down, according to documents filed with the Virginia State Corporation Commission. Adam Kennedy, a spokesperson for the firm now known as CRC Advisors — which had performed extensive consulting work for Leo in 2017 and is now led by him— said the BH Fund has been dormant since the end of 2021. He confirmed it was dissolved in October ‘as other organizations made it obsolete.’”

Przybyla adds, “Indeed, Leo now controls more than $1.6 billion in conservative donor funds, and he is erecting a new architecture of dark-money groups to administer it. Critics have long maintained that understanding how Leo has distributed his trove of anonymous funds is critical to understanding how the conservative legal movement claimed a majority of the U.S. Supreme Court…. Under the current tax code, nonprofits like BH Fund can spend unlimited amounts of money on political activities without disclosing their donors — as long as they are deemed ‘social welfare’ activities that do not primarily promote a political candidate.”

One outspoken critic of dark money in politics is Saurav Ghosh, who serves as director of federal campaign finance reform for the Campaign Legal Center.

Ghost, discussing Leo’s role in the sale of Conway’s company, told Politico, “Nothing screams ‘efforts to conceal’ quite like folding up an organization just as you start getting questions about it…. (The) influence of dark money is doubly problematic once someone is in office because they’re (potentially) able to influence outcomes.”

After Politico published Przybyla’s December 20, 2022 article, Democratic Sen. Dick Durbin described her reporting on Conway and Leo as “further evidence of the troubling role that Leonard Leo and the Federalist Society played in driving Donald Trump’s judicial selection process.”

“Leo’s network of outside groups built successful advocacy campaigns around the nominations of Chief Justice John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett and blocked President Barack Obama’s nomination of Merrick Garland,” Przybyla notes. “BH Fund operated alongside two other Leo-linked entities to promote Trump’s nominees.”

ref

https://theintercept.com/2020/10/24/amy-coney-barrett-women-group-dark-money/

oct 202 greta m

MARCH 4, the Leadership Institute, a nonprofit that trains conservative political leaders, hosted its monthly “Wednesday Wake-Up Club Breakfast” at its headquarters in Arlington, Virginia. The headliner of this event was Heather Higgins, an heiress to the Vicks VapoRub fortune, as well as the chair of the Independent Women’s Forum and the CEO of its political advocacy arm, the Independent Women’s Voice, right-wing nonprofits that self-describe as nonpartisan. For most of the event, Higgins stood before a clear podium and fielded questions on how to build conservative political influence — at one point revealing that IWF came up with a memo, used by Sen. Susan Collins, R-Maine, on how to support Brett Kavanaugh’s 2018 Supreme Court confirmation without alienating the #MeToo movement.

“I will tell you that I’m extraordinarily proud of IWF,”. “We wrote a memo. It was used by a lot of members of the Senate and the House, Fox News, and elsewhere. Most important, Susan Collins told me that without that memo, she would not see how to support him. And if you look atthe speech she gave on the Senate floor, it’s entirely the playing out and architecture of how we said to structure the argument — what to say and how to say it, which is just so gratifying. We’re watching TV and we’re like, ‘That’s ours! That’s ours!’” After Collins’s hourlong speech, Sen. Joe Manchin, D-W.V., announced that he would vote for Kavanaugh, helping achieve the threshold of votes necessary to confirm Kavanaugh.

It’s not the first time the IWF and IWV have sought to exert conservative influence over the Supreme Court, often by leveraging their positions as women’s nonprofits. IWF rose out of “Women for Judge Thomas,” which was formed in 1991 to support Supreme Court nominee Clarence Thomas amid Anita Hill’s accusation of sexual harassment. In 2016, IWF and IWV werevocal opponents of President Obama’s Supreme Court pick Merrick Garland and in 2017 pushed for Neil Gorsuch’s quick, quiet confirmation, including by sharingmisleading quizzes on the Supreme Court.

Now, IWF and IWV have turned their attention to pushing for the rapid confirmation of Amy Coney Barrett, including staging an “I’m With Her” rally outside of the Supreme Court on October 17, at the same time as a Women’s March. They have been quick to place op-eds in support of Barrett for the Washington Examiner, the Washington Times, and the National Review. On Fox News,where IWF and IWV are regular commentators, Kelsey Bolar, a senior policy analyst at IWF,criticized the Women’s March for “advocating against women, protesting a highly qualified female nominee to the Supreme Court” — part of a broader strategy of casting criticism of Barrett as anti-woman. IWF and IWV did not return a request for comment.

iWF and IWV are carefully branded as independent nonprofits supporting women, regardless of their policy positions, which include opposing Title IX, employer and tax-funded paid leave, and the Violence Against Women’s Act. “Being branded as neutral, but actually having people who know know that you’re actually conservative puts us in a unique position,” Higginstold donors in 2015, a quote unearthed by the Center for Media and Democracy. Beyond this neutral front, the groups are financially tied to an anonymously funded nonprofit network advancing conservative control of the courts, which could set the stage for dismantling the Affordable Care Act, the constitutional right to an abortion, marriage equality, and the regulation of pollutants under the Clean Air Act, and block future progressive (or moderate) legislation.

The central architect behind this ultraconservative vision is Leonard Leo, former vice president of theKoch-funded Federalist Society and President Donald Trump’s adviser responsible for coming witha list of potential Supreme Court nominees. In 2019, aninvestigation by the Washington Post described Leo as “the maestro of anetwork of interlocking nonprofits working on media campaigns and other initiatives to sway lawmakers by generating public support for conservative judges,” which has received $250 million from anonymous donors. IRS rules do not require 501(c)(4) nonprofits to disclose corporate funders, allowing corporations to exert an unlimited amount of financial influence behind a veil of nonprofits, which golargely unregulated.

iWF and IWV are not controlled by Leo, but they receive funding from organizations in his network. The Freedom and Opportunity Fund, which Leo founded in 2016, gave a total of $4 million in 2016 and 2017 to the Independent Women’s Voice, based ontax filings. In 2018, the Judicial Education Project, the research arm of the Leo-tied Judicial Crisis Network, gave $300,000 to Independent Women’s Forum. (We don’t yet know whether IWF or IWV received another influx of money from the Leo-tied network of dark-money nonprofits, coinciding with the current Supreme Court vacancy; the 990 tax forms for this year won’t be publicly available until November 2021.) Donors Trust, which Mother Jonescalled “the dark money ATM machine of the conservative movement,” also gave $792,000 in 2017 and $625,000 in 2018 to IWF, according to tax filingscompiled by DeSmog.

Lisa Graves, a researcher on the influence of dark money in U.S. politics and the founder of True North Research, notes that the influx of money from Leo-tied nonprofits to IWF and IWV coincides with the period when they were working to keep Justice Antonin Scalia’s vacancy open, while ultimately pushing forward with confirming Gorsuch in 2017 and Kavanaugh in 2018 to the Supreme Court. “We do know that IWF is playing a significant role within this right-wing infrastructure and that includes defending Trump’s nominees, no matter their record,” said Graves.

Another key strategy to influence the courts by IWF and the broader network of Leo-tied nonprofits has been filingamicus briefs, which can make it appear like there is a wider-ranging support or opposition for an issue than in reality. “A small number of donors are trying to orchestrate this legal revolution, but it looks broader than it is because they are throwing their voices through aflotilla of groups, and IWF is one of them,” said Graves.

To push Kavanaugh’s and Gorsuch’s nominations forward, staff of IWF and IWV made appearances on Fox News, wrote blog posts, and placed op-eds, including in the Boston Globe, and praised Gorsuch on IWF’s “Working for Women” podcast. On Tucker Carlson’s talk show, Tammy Bruce, the president of IWV, referred to the sexual assault allegation against Kavanaugh as a “political stunt.” Erin Hawley, a legal fellow at IWF, was quoted in a slideshow published by Refinery21 on what women think about Kavanaugh, which also included quotes from high-profile politicians, like Democratic vice presidential candidate Kamala Harris and Rep. Alexandria Ocasio-Cortez. They hosted an “I stand with Brett” rally on Capitol Hill, along with other groups, including and the Leo-tied Judicial Crisis Network and the anti-LGBTQConcerned Women for America.

The Fight for Reproductive Justice in a Post-Ginsburg World

Any victory for Barrett does not fully belong to Higgins and the women of IWF and IWV, but to the long shadow of the private donors for IWF, IWV, and others — right-wing donors that remain largely concealed while wielding increasing power over the most vital decisions, from who we can marry to the quality of the air we breathe. The brochure from the IWF and IWV’s 2019 gala, which lists its private and nonprofit sponsors, offers a partial window into the private corporations funding it. These include Facebook, Juul, Marathon Petroleum Corporation, the American Beverage Association, the Walton Family Foundation (Walmart), Karen Wright (the CEO of the Ariel Corporation, the largest global manufacturer of gas compressors), Amway, and Dick DeVos (former Amway CEO and the husband of Betsy DeVos, the secretary of education). Who won the gala’s “Woman of Valor” Award? None other than Betsy DeVos.

This money isn’t all funneled into IWF and IWV’s efforts to restructure the courts; it could also go to their work advocating for a range of issues that seemingly have little to do with women. In the past few years, this has included downplaying therisks of pesticides and e-cigarettes, spreading climate disinformation by arguing the science on climate change is not settled, andarguing for the privatization of school lunch programs.

A 2016article by Joan Walsh in The Nation describes how IWF and IWV have come to take on a platform increasingly aligned with the Koch brothers. Walsh traces this shift to 2001, whenNancy Pfotenhauer, the former top lobbyist for Koch Industries, became the president of IWF. In 2003, Pfotenhauer also became president ofAmericans for Prosperity, a right-wing political advocacy group founded by the Koch brothers. While Pfotenhauer has since left IWF, the ties remain: Sixteen of the current staff and board members of IWF and IWV have worked for organizations that have received Koch funding, according to an analysis provided to The Intercept by True North Research.

In her acceptance speech at IWF and IWV’s gala, DeVos described her goal of chipping away at Title IX, the landmark civil rights law that protects from gender-based discrimination in any educational program that receives federal funding. “So, we are working to dismantle the government social engineering in education, including the previous administration’s staggering overreach on Title IX,” said DeVos, which then credits this policy position to IWF. “You were among the first to sound the alarm decades ago about the downstream unintended consequences of that 1972 law.” Now, as Barrett’s confirmation looms, they are closer than ever to this goal.

2x? apr 2022

https://www.cnbc.com/2022/04/05/inside-the-consulting-firm-run-by-ginni-thomas-wife-of-supreme-court-justice-clarence-thomas.html

virginia “Ginni” Thomas runs a little-known consulting company that some campaign watchdog groups say could create yet another conflict of interest for her husband, Supreme Court Justice Clarence Thomas.

Ginni Thomas shot to national notoriety after text messages surfaced last month showing that she prodded former President Donald Trump’s then chief of staff, Mark Meadows, in late 2020 to try to overturn the presidential election results. The messages prompted calls from top Democrats for Clarence Thomas to recuse himself from cases reviewing the Jan. 6, 2021, riot on Capitol Hill. It’s also led to calls by lawmakers on Capitol hill to create a formal Supreme Court code of ethics. The House select committee investigating what took place on Jan. 6 is reportedly seeking an interview with Ginni Thomas.

[vid]

a spokeswoman for the Supreme Court did not return requests for comment. Attempts to reach Ginni Thomas through an email listed on her website were not returned. The website appears to have been wiped since the recent reports on her texts with Meadows.

Very little is known about her company, Liberty Consulting, which is listed as an asset on her husband’s Supreme Court disclosures. CNBC was able to find some of her conservative-leaning clients by cross-checking Virginia business records, tax forms, Federal Election Commission filings, personal financial disclosure documents and through interviews with people familiar with her work. Even so, watchdogs say such documents may not entirely reveal who she’s represented and whether those groups have ties to any cases before the court, raising increasing calls for more transparency.

‘Very problematic’

“It’s very problematic,” Richard Painter, chief White House ethics lawyer in the George W. Bush administration, said in a recent phone interview of Ginni Thomas’ work. The Supreme Court rules don’t require spouses to publicly disclose how much they earn or if they are working with anyone that could have a stake in a Supreme Court case — which could create a conflict for her husband and force him to recuse himself from certain cases, Painter said.

Kedric Payne, general counsel of the watchdog Campaign Legal Center, similarly said any financial interest tied to a justice’s spouse that could make it’s way to the court might lead to the recusal by the judge.

“The law is clear that a justice with questionable impartiality shall recuse from a case. Cases tied to the financial or other significant interests of a justice’s spouse always raise red flags that may trigger the recusal requirement,” Payne told CNBC. Clarence Thomas has recused himself 54 times since the 1990s, including 17 times to avoid a potential perception of a conflict of interest created by his son, according to the Huffington Post.

Separate careers

Ginni Thomas, in a recent interview with the Washington Free Beacon, pushed back on any potential conflicts of interest from her work. “We have our own separate careers, and our own ideas and opinions too. Clarence doesn’t discuss his work with me, and I don’t involve him in my work,” she recently told the publication. She noted her work for Liberty Consulting in that interview but didn’t divulge her clients.

Still, Democrats, including Senate Majority Leader Chuck Schumer, have said they want to move forward with creating an ethics code for Supreme Court justices that could include more specific disclosure requirements.

In the case of Ginni Thomas, the court’s financial disclosure forms only show that she gets a salary and benefits from her firm, without disclosing the specifics, and it notes the book value of the business.

Located in a nondescript strip mall in suburban Virginia, Liberty Consulting’s few known clients range from the Center for Security Policy, a nonprofit founded by a conservative activist accused of anti-Muslim rhetoric, to a political action committee titled FedUp PAC, according to a review of public filings by CNBC and researchers at watchdog Documented. The political action committee backed failed Alabama Senate candidate Roy Moore, according to Center for Responsive Politics’ data. Moore was accused of sexual misconduct and has denied wrongdoing.

The Center for Security Policy was founded by Frank Gaffney Jr., a former Reagan administration Defense official who has since been flagged by the Anti-Defamation League for pushing “a number of anti-Muslim conspiracy theories.” Both Gaffney and the Center for Security Policy were among a group of advocates who filed an amicus brief with the Supreme Court backing Trump’s travel ban. The center paid Liberty Consulting more than $200,000 over the course of two years, from 2017 and through 2018, according to 990 tax disclosure reports from those years. The work by the firm for the Center for Security Policy was first reported by The New Yorker.

Liberty Central

Thomas is also said to have done past work for companies tied to conservative judicial advisorLeonard Leo, according to a person familiar with the matter, who asked not to be named to speak freely on the matter. Ginni Thomas counts Leo as a mentor, according to The Washington Post. Leo previously served as a director for a Ginni Thomas-led a conservative nonprofit namedLiberty Central during former President Barack Obama’s administration, according to 990 tax disclosures. Ginni Thomas once boasted that she wanted the organization to be “bigger than the tea party,” and was taking aim at Obama’s agenda, including the Affordable Care Act, the Post reported.

In 2010, Ginni Thomas made more than $120,000 as president and CEO of Liberty Central that year, according to a 990 tax filing. The nonprofit has since been closed. Clarence Thomas was among the group of Supreme Court justices who dissented in 2012 from the majority opinion, which upheld Obama’s signature health insurance law, the Affordable Care Act, as constitutional. He later sided with the majority to uphold the law against a Republican challenge in 2021.

Leo has been involved with helping shape the Supreme Court to what it is today, including Trump on who best to select for the high court.Trump’s court picks of Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett saw support from groups backed by Leo and his allies when they were in the midst of Senate battles over their nominations. The Daily Beast reported that CRC Advisors, Leo’s firm, has been tasked at promoting a documentary on Clarence Thomas.

Supporting Trump

Outside groups run by Leo’s allies advocated in support of Trump’s nominees and have since taken aim at President Joe Biden’s court picks, including Judge Ketanji Brown Jackson. Like their opposing progressive groups, the Leo-tied organizations are known as “dark money” nonprofits who don’t reveal their donors to the public. Leo’s recently [created](https://www.cnbc.com/2021/11/18/trump-ally-leonard-leo-85-fund-received-20-million-in-2020.html?__source=sharebar|twitter&par=sharebar) 85 Fund is part of his extensive network of organizations that seek to influence policy, judicial nominations and the larger conservative movement.

The FedUp PAC, which is chaired by conservative political ad veteran Richard Viguerie, paid Liberty Consulting $5,000 during the 2018 election cycle for what it describes on the PAC’s filing as video production. The name Liberty Consulting and the address listed on the Federal Election Commission disclosure matches that of the firm run by Ginni Thomas. The PAC later backed Trump during the 2020 election cycle, spending more than $100,000 supporting the then commander in chief. Liberty Consulting was not paid for any work by the PAC that cycle, federal campaign disclosure data shows.

Bob Mills, who is listed as director for the super PAC on its website, did not recall what specific work Liberty Consulting conducted for the organization when initially reached by CNBC and didn’t respond to follow up emails requesting further details.

Ginni Thomas’ LinkedIn profile says she’s worked since 2010 as the founder and president of Liberty Consulting with “citizen activists, leaders and nonprofits to succeed and have impact in defending the principles that have made America an exceptional nation. — offer strategic advice, build coalitions, connect people and projects (this is my passion and joy!).” Thomas notes on her page that she’s not a lobbyist, even though a Virginia state record shows that the firm was once called Liberty Lobby.

Beth Rotman, national director of money in politics and ethics at watchdog Common Cause, told CNBC that new ethics laws governing Supreme Court justices should require them to disclose more details of their spouses’ consulting contracts.

“Disclosure must be robust for it to be truly meaningful in this context so financial disclosures should include consulting contracts. As you have seen already, when justices complete their annual reports, they list information that does not give a complete view of their spouse’s financial ties,” Rotman said in an email. “It is key to meaningful disclosure that the rules be updated to include the source and amount of any spouse’s consulting contracts over a reasonable minimum threshold.”

Leo and representatives for most of the group’s mentioned in this story also did not return requests for comment. A spokesman for the Jan. 6 House Select Committee declined to comment.

Business boom

Though it’s unclear how much Ginni Thomas has made from the consulting firm, Liberty Consulting appeared to see a boom in business in the run-up to Trump’s 2016 win.

Clarence Thomas’ financial disclosure reports show that in 2014, the firm’s cash market value was listed as being worth up to $15,000.

===

scotus noms

United States courts of appeals

Court of Appeals for the D.C. Circuit
- Gregory G. Katsas‡ (born 1964)^[45] (appointed by Trump)
- Brett Kavanaugh† (born 1965)^{[46][48][44][49]} (nominated and confirmed)
Court of Appeals for the 3rd Circuit
- Thomas Hardiman* (born 1965)^[19][48][50]
- Peter J. Phipps‡ (born 1973)^[45] (appointed by Trump)
Court of Appeals for the 4th Circuit
- Allison Jones Rushing‡ (born 1982)^[45] (appointed by Trump)
Court of Appeals for the 5th Circuit
- Kyle Duncan‡ (born 1972)^[45] (appointed by Trump)
- James C. Ho‡ (born 1973)^[45] (appointed by Trump)
- Don Willett* (born 1966)^[19] (appointed by Trump)[note ^1]^
Court of Appeals for the 6th Circuit
- Raymond Kethledge* (born 1966)^[19][48][50]
- Joan Larsen* (born 1968)^[19] (appointed by Trump)[note ^2]^
- Amul Thapar** (born 1969)^[20][48] (elevated by Trump)[note ^3]^
Court of Appeals for the 7th Circuit
- Amy Coney Barrett† (born 1972)^[44] (appointed by Trump)[note ^4]^ (nominated and confirmed)
- Diane Sykes* (born 1957)^[19]
Court of Appeals for the 8th Circuit
- Steven Colloton* (born 1963)^[19]
- Raymond Gruender* (born 1963)^[19]
- David Stras* (born 1974)^[19] (appointed by Trump)[note ^5]^
Court of Appeals for the 9th Circuit
- Bridget S. Bade‡ (born 1965)^[45] (appointed by Trump)
- Lawrence VanDyke‡ (born 1972)^[45] (appointed by Trump)
Court of Appeals for the 10th Circuit
- Allison Eid* (born 1965)^[19] (appointed by Trump)[note ^6]^
- Neil Gorsuch** (born 1967)^[20][21] (nominated and confirmed)
- Timothy Tymkovich** (born 1956)^[20]
Court of Appeals for the 11th Circuit
- Britt Grant† (born 1978)^[44] (appointed by Trump)[note ^7]^
- Barbara Lagoa‡ (born 1967)^[45] (appointed by Trump)
- Kevin Newsom† (born 1972)^[44] (appointed by Trump)[note ^8]^
- Bill Pryor* (born 1962)^[19]
Court of Appeals for the Armed Forces
- Margaret A. Ryan** (born 1964)^[20]

United States district courts

Federico A. Moreno** (born 1952) – senior judge, United States District Court for the Southern District of Florida^[20]
Martha M. Pacold‡ (born 1979)^[45] – district judge, United States District Court for the Northern District of Illinois (appointed by Trump)
Sarah Pitlyk‡ (born 1977)^[45] – district judge, United States District Court for the Eastern District of Missouri (appointed by Trump)
Patrick Wyrick† (born 1981)^[44] – district judge, United States District Court for the Western District of Oklahoma (appointed by Trump)[note ^9]^

State supreme courts

Keith R. Blackwell** (born 1975) – Associate Justice, Supreme Court of Georgia^[20]
Charles T. Canady** (born 1954) – Chief Justice, Supreme Court of Florida^[20]
Thomas Rex Lee* (born 1964) – Associate Justice, Utah Supreme Court^[19]
Edward Mansfield** (born 1957) – Associate Justice, Iowa Supreme Court^[20]
Carlos G. Muñiz‡ (born 1969)^[45] – Associate Justice, Supreme Court of Florida
Robert P. Young Jr.** (born 1951) – former chief justice, Michigan Supreme Court^[20]

Executive branch

Paul Clement‡ (born 1966)^[45] – former solicitor general of the United States
Steven Engel‡ (born 1974)^[45] – United States assistant attorney general for the Office of Legal Counsel
Noel Francisco‡ (born 1969)^[45] – former solicitor general of the United States
Christopher Landau‡ (born 1963)^[45] – United States ambassador to Mexico
Kate Comerford Todd‡ (born 1975)^[45] – Deputy Assistant to the President and Deputy Counsel to the President

United States senators

Tom Cotton‡ (born 1977) – Senator from Arkansas^[45]
Ted Cruz‡ (born 1970) – Senator from Texas^[45]
Josh Hawley‡ (born 1979) – Senator from Missouri^[45]
Mike Lee** (born 1971) – Senator from Utah^[20][48]

State executive branches

Daniel Cameron‡ (born 1985)^[45] – Attorney General of Kentucky

The Supreme Court (2020)

When, why, and how did the Supreme Court get the final say in the law of the land? The question of the Court's role, and whether its decisions should reign above all the other branches of government, has been hotly debated for centuries. And that's resulted in a Supreme Court more powerful than anything the Founding Fathers could have imagined possible.

covers switch in time that saved 9; after marbury v ? scotus carved out indiv rights which later got leveraged by Warren Ct? to judicial supremacy; CRM but last gasp was Roe; now right wants to use tool to undo warren progress.

https://www.npr.org/player/embed/1039822099/1046005946

SEPTEMBER 30, 2021

The Shadows of the Constitution (2020)

The Constitution is like America's secular bible, our sacred founding document. In her play, What the Constitution Means to Me, Heidi Schreck goes through a process of discovering what the document is really about – who wrote it, who it was for, who it protected and who it didn't. Through Heidi's personal story, we learn how the Constitution and how it has been interpreted have affected not just her family but generations of Americans.

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.

see roberts who wants 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.

// flu

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

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

https://www.alternet.org/2021/10/supreme-court-epa/

no lnx tet

Supreme Court could destroy the planet': Critics sound alarm over a new EPA case

Jessica Corbett and Common Dreams October 31, 2021

As U.S. President Joe Biden prepares for a consequential United Nations climate summit in Scotland, the Supreme Court on Friday provoked widespread alarm byagreeing to review the Environmental Protection Agency's authority to limit planet-heating pollution.

"The Supreme Court could destroy the planet. Pass it on," tweetedRep. Earl Blumenauer (D-Ore.) in response to the decision.

Republican-led states and coal companies asked the justices to weigh in after the U.S. Court of Appeals for the District of Columbia Circuit in January struck down the Affordable Clean Energy (ACE) Rule issued under former President Donald Trump.

The day before Biden took office, a divided three-judge panel said that theTrump-era rule—intended to replace former President Barack Obama's Clean Power Plan, which never took effect—"hinged on a fundamental misconstruction" of a key section of the Clean Air Act that resulted from a "tortured series of misreadings" of the law.

The justices will now consider whether that section of the Clean Air Act "clearly authorizes EPA to decide such matters of vast economic and political significance as whether and how to restructure the nation's energy system."

Though there was some initial confusion about the forthcoming review due to a typo in Friday's order that was later corrected, climate action advocates and legal experts frantically issued warnings about how a ruling from the high court's right-wing supermajority may impede the Biden administration's efforts to combat the climate emergency.

"This is the equivalent of an earthquake around the country for those who care deeply about the climate issue," Harvard University law professor Richard J. Lazarustold The New York Times. The court's decision threatens "to sharply cut back, if not eliminate altogether, the new administration's ability to use the Clean Air Act to significantly limit greenhouse gas emissions from the nation's power plant[s]."

The development comes a day after Biden announced a $1.75 trillion watered-down version of the Build Back Better Act that stripped out some climate provisions due to opposition from Sen. Joe Manchin (D-W.Va.), one of the corporate-backed, right-wing party members who has held up the package designed to include much of the president's agenda.

Although the Biden administration is still working on ways to cut emissions that don't rely on the section of the Clean Air Act in question, HuffPost's Alexander Kaufman explained how an unfavorable ruling from the Supreme Court could cause problems, given current conditions in Congress:

"It's only this one statute of the Clean Air Act, which is one of many tools the administration has," Michael Gerrard, director of Columbia Law School's Sabin Center on Climate Change Law, told HuffPost. "I don't think it's a problem for most of the measures the administration might want. But there's this one particular tool that might be in trouble."

The court could, however, seek to "take this as an opportunity to rule more broadly about the ability of Congress to delegate decisions to agencies," by going after the non-delegation doctrine, and might "say Congress is going to have to give EPA authority over such an important area and be more clear and explicit."

That would likely constitute a victory for the plaintiffs. With a 50-50 split in the Senate, Democrats need to vote in lockstep to pass a bill, giving unique power to lone senators like Manchin, whose opposition to climate regulations and personal family fortune tied up in a coal business have made him a magnet for fossil fuel industry donations throughout the past year. He'd be unlikely to vote for legislation granting the EPA new powers to regulate greenhouse gases. And Republicans are favored to win back at least one chamber of Congress in next year's midterm election.

This "is the most significant climate case to reach the Supreme Court since 2007, when the justices ruled in Massachusetts v. EPA that greenhouse gases could be regulated as air pollutants under the Clean Air Act," noted E&E News.

As the petitioners, including 19 states led by West Virginia, celebrated the court's announcement, campaigners such as David Doniger, senior strategic director at the Natural Resources Defense Council's Climate & Clean Energy program, vowed that "we will vigorously defend EPA's authority to curb power plants' huge contribution to the climate crisis."

EPA Administrator Michael Regan, meanwhile, signaled in a pair of tweets that the Biden administration will keep up its work to address climate-wrecking pollution.

The federal agency, Regan vowed, "will continue to advance new standards to ensure that all Americans are protected from the power plant pollution that harms public health and our economy."

1021 an

Although the MAGA movement has promoted intense hyper-nationalism and former President Donald Trump once chastised former Florida Gov. Jeb Bush for speaking Spanish on the campaign trail, the pro-Trump Great America PAC was fined by the Federal Election Commission earlier this month for soliciting foreign contributions. And according to Talking Points Memo's Ciara Torres-Spelliscy, the U.S. Supreme Court "appears" to be on the side of those who want to keep foreign money out of U.S. politics.

"Massachusetts is trying to limit foreign corporate political spending in is its elections through new legislation, and the U.S. Supreme Court, it appears, is actually on their side," Torres-Spelliscy, a law professor at Stetson University, reports. "This may come as a surprise: The Roberts Court has repeatedly opened the doors to more money in politics. And Justice (Samuel) Alito famously disagreed with President (Barack) Obama who, during the 2010 state of the union, scolded the justices to their face about their ruling in Citizens United."

Obama, a major critic of the U.S. Supreme Court's 2010 decision in Citizens United v. Federal Election Commission, said, "I don't think American elections should be bankrolled by America's most powerful interests —or worse, by foreign entities."

Torres-Spelliscy explains, "Foreign nationals, the human kind, have long been barred from spending in U.S. elections under 52 U.S.C. § 30121. That is why election law experts had their hair on fire about the question of Russian interference (in) the 2016 election. And even the Roberts Supreme Court, in a case called Bluman v. FEC, upheld the constitutionality of the ban on foreign nationals' spending money in American elections. But the law has been as clear as mud between 2010's Citizens United and 2020's Open Society II about whether that foreign ban naturally applied to foreign corporations as well as humans."

The reporter adds, "In two cases, the State of California and the FEC took the position that the foreign ban did apply to foreign corporations."

Torres-Spelliscy elaborates on why the U.S. Supreme Court's 2020 ruling in *Agency For International Development v. Alliance For Open Society International* is important.

According to Torres-Spelliscy, "These state and local efforts to keep foreign money out have generated criticism that they would violate the First Amendment rights of corporations under Citizens United to spend money in politics. That's why the Open Society II case is so important: it indicates that foreign corporations cannot raise First Amendment objections to U.S. laws or policies. Thus, a law that bans foreign corporations from spending in U.S. elections cannot be challenged by a foreign corporation as a violation of free speech. According to Open Society II, foreign corporations have no such rights to assert. This means reforms like those in St. Petersburg, Washington State and pending in Massachusetts are on firmer constitutional ground."

scotus dismiss relig vax exemption 1 sent? (relly very settled law?]

https://www.alternet.org/2021/10/judge-amy-coney-barrett/

where she stands?

1021 an

https://www.alternet.org/2021/10/supreme-court-2655250387/

Yesterday, I described a situation in which local boards of education are being squeezed between two separate but related forces. On the one hand are shadowy nonprofit organizations funded by the very obscenely rich that are staging "protests" against masks, vaccines, the teaching of anti-racism and other things they don't. I call them the death-threat squads. They harass, intimidate and threaten board members in such numbers as totrigger waves of resignations. Their goal isn't changing minds. It's silencing enemies. The tactic works.

But it only works due to the help of a tandem force in question. On the other hand are local law enforcement officers, even whole police and sheriffs' departments, who do not or will not enforce the law in order prevent such crimes from being committed. Why? Because they are sympathetic to the interests of those who are committing the crimes. For this reason, a national school board group called on the president to help. The US attorney general is now taking steps to investigate.

I'm summarizing yesterday's column, because I want to stress this pattern — the squeeze play — that's between active agents of the very obscenely rich and passive agents of the state. I want you to be aware of how these lawless forces work in tandem, though not necessarily in explicit coordination, to shape not only our views of politics but our understanding of freedom, too. I want you to see more fully that what they are doing now is how they want America to be, a nation in which the in-group can harass, intimidate and threaten the out-group, and the out-group is legally and constitutionally bound to put up with it.

Consider an upcoming case to be heard before the United States Supreme Court. It's the biggest case on Second Amendment rights since Heller in 2008. Heller established the right to self-defense. The state is forbidden to outlaw guns for personal use and safety. In New York State Rifle & Pistol Association v. Bruen, plaintiffs hope to take Heller a step further to establish the right to conceal one's weapon.

It's important to understand the context of Bruen. Heller was decided before America elected its first Black president. After the election, the"gun-rights" movementsprang into action. I said this yesterday, but didn't say why. It's because democracy "unexpectedly" empowered non-white people. For many white people, empowered non-white people, especially Black people, means disempowered white people.

Something had to be done. Since American democracy could no longer be trusted, they turned to their guns. They turned to tactics to fight the feeling of being "enslaved." Thanks to Heller, they could legally carry their guns in public, in places where they'd never need a gun, like the library. They said they were exercising their rights. They were lying. They were doing exactly what the school board death-threat squads are doing now. (Local law enforcement officers said then as now that nothing can be done.) They were harassing, intimidating and threatening people they don't like. They were doing that because harassing, intimidating and threatening people makes them feel free.

The need among some white people to feel "free" in the face of a treacherous democracy that empowered non-white people — thus robbing white people of their freedoms — was so fierce that a day that might otherwise have triggered a national reckoning on gun violence was barely noticed. While most Americans saw the slaughter of 20 innocents at Sandy Hook as an overwhelming reason to increase gun regulation, the "gun-rights" movement was focused on something else: the 2012 reelection of Black president and chief avatar of tyranny.

I used to say the Republican reaction to the Sandy Hook massacre was the rapid expansion of laws deregulating access to firearms and their use. I was wrong. Those laws, including concealed carry laws, were a reaction to Barack Obama's reelection. They were a reaction to American democracy betraying white people for a second time. (The good guy with a gun is not just a good guy who shoots back. He's a white guy who's "free" to shoot whomever he pleases. That's what makes him good.) It is the expansion of these laws, and all they symbolize, that's set to be heard by the Supreme Court. I don't have reason to doubt this court will establish a concealed carry right. Once that happens, the right to military weapons might not be far behind.

Thus the high court will do its part in squeezing freedom out of Americans. On the one hand, the in-group gets to harass, intimidate and threaten the out-group with guns, concealed and/or open. One the other, local law enforcement gets to shrug, pointing helplessly to the Supreme Court and its interpretation of the Constitution. The out-group does indeed have the right to equal protection. What we're seeing, in stages, is a slow-motion conspiracy to pretend otherwise.

Which is the point. Freedom for the out-group is equal to tyranny for the in-group. More accurately, freedom for the in-group is dependent on the out-group living in fear of the in-group. Without that fear, the in-group just doesn't feel free enough. That's why freedom isn't and can't only be doing whatever you want. Freedom must mean harassing, intimidating and threatening the out-group while enacting laws and interpreting the Constitution so the out-group can't fight back.

an 1021 the conv

the const does not follow the flag"

by Eric Bellone, Suffolk University

The 4 million inhabitants of five U.S. territories – Puerto Rico, American Samoa, Northern Marianas Islands, Guam and the U.S. Virgin Islands – do not have the full protection of the Constitution, because of a series of Supreme Court cases dating back to 1901 that are based on archaic, often racist language and reasoning.

No U.S. citizen living in any of those places can vote for president. They don't have a voting representative in Congress, either.

But this inferiority is inconsistent. Puerto Ricans are American citizens and can vote in federal elections if they reside in a U.S. state – but not if they live in Puerto Rico or one of the other territories.

However, American Samoans are not U.S. citizens, so they can't vote for president even if they live in the 50 states. That is being challenged in federal courts.

It's all a result of a political and legal mindset that is more than 100 years old, but is still in force.

Superiority complex

Up until the end of the 19th century, everyone assumed that all U.S. territories would, eventually, become full-fledged states, whose residents would become U.S. citizens with rights fully protected by the Constitution. The Northwest Ordinance of 1787 outlined the process: As new lands opened to Americans, Congress would initially appoint a governor and judges for the territory and establish a rule of law. When the territorial population exceeded 5,000 adult men, voters would elect a legislature and send a nonvoting delegate to Congress. When the territory reached a population of 60,000, the territory would petition for statehood and be admitted to the union.

That process assumed the territories would be in North America, and that most of the territorial population would be people of European descent. Those assumptions changed when the United States claimed Puerto Rico, the Philippines and Guam in 1898, as spoils of war at the end of the Spanish-American War. Puerto Rico and Guam are still U.S. territories.

That expansion gave Americans a clear sense of the nation's purpose and power in the world, summarized effectively by U.S. Sen. Albert Beveridge of Indiana in a congressional speech on Jan. 9, 1900: “[God] has made us the master organizers of the world to establish system where chaos reigns. He has made us adept in government that we may administer government among the savage and servile peoples."

A new type of territory

Starting in 1901, a set of court cases, collectively called the “Insular Cases," created new constitutional law regarding the United States' relation with its territories. They began when import companies challenged tariffs imposed on goods transported from the newly acquired territories into the U.S. The companies claimed there should not be tariffs, because the goods were moving from one part of the U.S. to another.

The Supreme Court ultimately ruled that the companies were correct that transport within the U.S. was not subject to tariffs, but created an exception, in which the new lands were neither foreign countries nor part of the U.S.

Those territories, the Supreme Court would rule in the first of the Insular Cases, Downes v. Bidwell in 1901, were “foreign in a domestic sense," “inhabited by alien races," and therefore governing them “according to Anglo-Saxon principles may for a time be impossible."

The ruling included other prejudice-revealing statements, too, such as, “It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws, and customs of the people, and from differences of soil, climate, and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians."

As a result, the court created a new distinction: “Incorporated" territories of the U.S. were expected to one day become states. “Unincorporated" territories, by contrast, were not – and, therefore, their inhabitants were, and still are, denied some of their constitutional rights.

A 2020 referendum vote in Puerto Rico favored statehood; Guam officials have called for statehood; and Stacey Plaskett, who represents the people of the U.S. Virgin Islands in Congress, says her constituents deserve the full rights of citizenship, including the right to vote....

-=-=

1021 an kos

Supreme Court is teeing up its next round of far-right decisions, after which the far-right justices making those decisions will doubtless trot out for another round of claiming that the court is not partisan. Following its shadow docket decision effectively overturning Roe v. Wade in Texas, the court is setting up the next step by hearing arguments on a Mississippi abortion ban that could be the official, nationwide end of Roe.But that's not all.

Before it gets to the Mississippi abortion ban, the Supreme Court will consider a major gun case, its first in a decade. That case centers on a New York law requiring people to show "proper cause" as to why they need to carry guns outside their homes in order to get a permit to do so. What's particularly disturbing about the court's attention to that law is that this is not a new law coming under review—it's been around for a long time, so this is unmistakably a case where what changed is not the law but the composition of the court.

A week after it hears the Mississippi case, the court will turn its attention to the question of whether Maine can exclude religious schools providing a religious education from public tuition dollars. The creeping-theocracy implications of that should be clear.

As well, the Supreme Court will look at the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev, which was thrown out by an appeals court; a Texas death row inmate's request to have his pastor be allowed to touch him and pray out loud with him in the death chamber (possibly providing an interesting religious freedom comparison with the Maine case); and a government effort to keep Guantánamo detainee Abu Zubaydah, the first victim of horrific CIA torture after 9/11, from getting information from two of his torturers.

All in all, it's a slate of chances for the Trump Supreme Court to tighten the Republican Party's anti-democratic grip on U.S. law.

The Mississippi abortion case will draw—already is drawing—the most attention. And it should be an attention-grabber as an explicit effort to overturn decades of settled precedent. Mississippi Republicans aren't really trying to keep it secret, either. Up until the death of Justice Ruth Bader Ginsburg, they pretended the goal was something other than overturning Roe. Once Donald Trump and then-Senate Majority Leader Mitch McConnell had rammed Amy Coney Barrett onto the court at the highest speed possible, Mississippi Attorney General Lynn Fitch came out with the real goal: "Roe and Caseyare unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law—and, in doing so, harmed this Court," so they should be overturned.

All of this comes against the backdrop of the Supreme Court's intensifying partisanship, which people are starting to notice. A series of polls shows the public's faith in the Supreme Court dropping and an understanding of the court's partisanship rising. The furthest-right, most partisan justices are hearing that criticism, but their response has been a series of gaslighting speeches.

Barrett claimed to be "concerned" about the public's view of the court as partisan. She said this in a speech at the University of Louisville's McConnell Center, founded by McConnell, after being introduced by … McConnell. You know, the guy who held one Supreme Court seat open for nearly a year because there was an election coming and it would be wrong to let a president fill a Supreme Court seat in the last year of his term, then turned around and got Barrett onto the court in the matter of weeks between Ginsburg's death and the election.

Samuel Alito, basically a Republican operative in the guise of a justice, recently whined about "unprecedented efforts to intimidate the court or damage it as an independent institution," aka observations that the court has been packed with far-right justices by Republicans who lost the popular vote for the presidency, and has consistently acted to bolster Republican electoral chances to solidify that control. How dare Democrats notice that Republicans have waged a decades-long campaign to take over the courts, just as Republicans succeeded at taking over the courts!

Clarence Thomas also chimed in, talking about people "destroying our institutions because they don't give us what we want, when we want it." Again, after decades of Republicans undermining the reputation of the court for partisan purposes—Bush v. Gore, anyone?

And now the cycle begins anew: A likely series of devastating far-right decisions by the court will be followed by the partisan Republicans who made those decisions coming out to rail against anyone who dares suggest that the court has a legitimacy problem.

1021 an

no lnx

Justice Alito lashes out at a journalist's criticism as 'ridiculous'

Cody Fenwick September 30, 2021

U.S. Supreme Court Justice Samuel Alito singled out a specific journalist for criticism on Thursday during a defensive speech at the University of Notre Dame. He used the event to respond to growing outrage about the court's use of the "shadow docket," in which it weighs in on ongoing cases without oral arguments or extended opinions

Adam Serwer of the Atlantic has been among those to recently call out the court's increasingly aggressive use of the shadow docket. Writing about its recent decision to allow a Texas law banning abortions after 6 weeks of pregnancy to go into effect, Serwer wrote: "The conservative majority on the Supreme Court was so eager to nullify Roe v. Wade, the 1973 precedent securing the right to abortion, that it didn't even wait for oral arguments."

Without naming Serwer or the Atlantic, Alito latched on to this quotation and attempted to refute it.

"Put aside the false and inflammatory claim that we nullified Roe v. Wade," Alito said. "We did no such thing, and we said that expressly in our order. I quote: 'The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. ... this order is not based on any conclusion about the constitutionality of Texas's law...'"

He continued: "So, the statement is flatly wrong, and the suggestion that we should've held oral argument is ridiculous."

Here is Justice Alito condemning @AdamSerwer’s Atlantic article about the Texas abortion order as “false,” “inflamm… https://t.co/DxItCd85D6

— Mark Joseph Stern (@Mark Joseph Stern) 1633027821.0

Alito's response is wholly unresponsive to Serwer's actual claim.First, most clearly, Serwer did not suggest that the justices should've held oral argument before issuing their order. His point, quite obviously, is that at the very least the court should wait to hold oral arguments and before doing something as upending precedent on abortion law. That's what the court did by allowing the Texas ban to go into effect based on a technicality, even though there were clear immediate harms caused by the obviously unconstitutional law. Alito's cheap shot here shows either a lack of interest in taking criticism seriously or poor critical reading skills, neither of which are qualities one would hope to see in a Supreme Court justice.

More to the point, though, Alito's claim that the court didn't nullify Roe v. Wade because it didn't address the constitutionality of abortion bans doesn't hold up either. If Serwer had claimed that the court had overturned Roe, Alito would arguably be right on a technicality. But nullifying isn't the same as formally overturning precedent. Serwer's point is that the court effectively rendered Roe's protections void in Texas, which is undoubtedly true. The Texas ban, which clearly flies in the face of Roe, is in force and is in fact impeding the ability of women to get abortions. That's what it means for the protection of a legal right to be nullified.

Alito's argument that the majority in the Texas case claimed it wasn't making a decision on the constitutionality of the law doesn't change the fact that rights have been nullified. And the claim that the decision was solely based on the technical aspects of the law, and not the justices' beliefs about the merits of case, doesn't pass the laugh test. There's no serious doubt that the court would've acted differently if, for example, Massachusetts had used a similarly structured law to ban gun ownership.

Serwer, responding to Alito, noted that the justice's comments offered more evidence for an argument he made in a separate article.

More seriously, it’s not often the justices make your point for you. So thanks. https://t.co/ySFCF7q5uu https://t.co/aXYISPFfbQ

— Adam Serwer ?? (@Adam Serwer ??) 1633035101.0

In that piece, Serwer wrote:

The current makeup of the Roberts Court is itself the outcome of a partisan battle that has spanned decades, one in which the conservative legal movement has won a tremendous victory that is certain to shape American life for generations to come.Anticipating their future triumphs, though, the very justices championed by this movement have taken to denying both this victory and its implications, insisting that this casino is resolutely opposed to gambling—in fact, it's not a casino; it's a church, and its critics are engaging in acts of civil blasphemy. With absolute control of the Court, the conservative legal movement's main obstacle is the fact that its extreme views are unpopular. When those views are imposed on the public in the future, the justices want to be able to claim that their decisions are the result of impartial legal reasoning, rather than motivated reasoning by committed right-wing ideologues. But that doesn't make the proposition that the justices are free of partisanship any less ridiculous.

edit bd

https://www.alternet.org/2021/09/supreme-court-popularity/

Last week, Jennifer Rubin wrote about the sinking reputation of the United States Supreme Court. With respect to a new abortion law in Texas, which invalidates Roe v. Wade, the Post columnist said that, "The nub of the problem is not that (or not only that) voters are angry that the court allowed a diabolical and invasive Texas law to go into effect. The problem, rather, is that once the facade of impartiality and nonpartisanship is shattered, it is nearly impossible to get back."

It's an important piece. You should read it. But the assertion that "the facade of impartiality and nonpartisanship" is hard to put back together once it's started coming apart is worth dwelling on. Is it true? Well, I have to repeat myself, to wit: most people most of the time have something better to do than pay attention to politics. 2000's Bush v. Gore should have shattered "the facade" utterly, but didn't. Why? For one thing, 9/11. For another, most people have other things to do.

Three recent polls show the high court's approval rating taking a nosedive."Just 40 percent of Americans approve of the court, according to the latest Gallup poll," the Associated Press reported. "That's among the lowest it's been since Gallup started asking that question more than 20 years ago. Approval was 49 percent in July." (Such was the occasion for Rubin's piece and other pieces you saw last week.) But each poll can be pointed to as evidence of the nosedive being temporary. Unlike the United States Congress, which has an abysmal reputation, the court's numbers never stay low. They go up a little. Then down a little, or a lot, before returning safely to the mean.

Left to their own devices — which is to say, left to find something better to do than pay attention to politics — most people can be trusted to forget whatever bad thing the court does. (Voters are renowned for their short memories.) What's more, most people tend to agree with Justice Stephen Breyer's rose-tinted view: that the court is an institutional source of liberty. Combined, apathy and myth create conditions in which the court can weather pretty much anything.

But what if most Americans were not left to their own devices. What if a major political party had the incentive to never let them forget? What if a major political party grew hostile toward court myths?

Incentive has existed on the margins of the Democratic Party since at least the moment Mitch McConnell robbed Barack Obama of a justice. Those marginal voices have been growing louder, and hence less marginal, since 2015 with every court-related outrage, particularly the GOP's ramming through of a nominee during an election year, which was the reason given for robbing Barack Obama. (Not to mention expediting Brett Kavanaugh's confirmation before the FBI could thoroughly vet him; not to mention the appointment of three justices in all by a president who colluded with a hostile foreign power to win.)

The Democratic Party's centrists, however, have not felt the same pressure, despite all the outrage over more than half a decade. They have continued to see the utility in respecting the court. Unlike liberals and progressives, centrists have not been moved by the court's approval of the former president's Muslim ban, by the court's gutting of the 1965 Voting Rights Act, by the court's kneecapping of trade unions, by the court's eviction, in effect, of essential workers from their homes and other rulings of factional Democratic interest.

But the Supreme Court's lawless decision to use the "shadow docket" to allow an anti-abortion law in Texas to invalidate half a century of court precedent without a single argument or a single written opinion cuts right through the Democratic Party's respectable white people. It has radicalized those voters who had hoped against hope during more than a half-decade's worth of outrage that Roe would not fall. They see it falling now. Fast. It's open season on the court's legitimacy.

This would explain the court's recent polling slump. If I'm correct about these incentives, we might see its numbers shift profoundly — from a familiar pattern of gentle ups and downs to a new pattern of permanent and painful lows. "I do think there's a sustained campaign to delegitimize the court that has gotten some traction on the left," a big-wheel attorney who often argues before the court told the AP. But it's not the left. This is respectable white people we're talking about.

Let's hope I'm right. If most people most of the time continue to think of the court as an institutional source of liberty, and if most people most of time continue to forget the bad things it does, there's no hope of reforming it, whether that means expanding the number of justices, implementing term limits or something called "jurisdiction stripping." (See the Editorial Board's Chris Sprigman for more.) There would be, therefore, no hope in turning Roe into statutory law. The court would strike it down. The Democrats must beat them to it. Before they can save the village, however, they have to burn it down.

at 1st silent then 6-2 soto ~ shadow docket?

Supreme Court's latest salvo exposes the trick John Roberts has played on the country

Amanda Marcotte Salon

September 01, 2021

At the stroke of midnight on Wednesday, the Supreme Court suddenly overturned Roe v. Wade.

The move was quiet and it very well may be temporary (they could still issue a short decision any minute...

https://www.alternet.org/2021/09/supreme-court-2655063879/

It is a central principle of law: Courts are supposed to follow earlier decisions – precedent – to resolve current disputes. But it's inevitable that sometimes, the precedent has to go, and a court has to overrule another court, or even its own decision from an earlier case.

In its upcoming term, the U.S. Supreme Court faces the question of whether to overrule itself on abortion rights. Recent laws in Texas and Mississippi restrict the right of women to terminate pregnancies in ways that appear to challenge the long-standing precedent of the Supreme Court's 1973 decision in Roe v. Wade, which allowed women to have abortions in most circumstances.

Over the centuries, courts have stated many reasons they should adhere to precedent. First is the idea of equity or justice, under which “ like cases should be decided alike," as one senior federal judge put it. If a court in the past reviewed a particular set of facts and decided a case in a specific way, fairness dictates it should decide another similar case the same way. Precedent promotes uniformity and consistency in the law.

In addition, precedent promotes judicial efficiency: Courts do not have to decide from scratch every time. Finally, following precedent promotes predictability in the law and protects people who have come to rely on past decisions as a guide for their behavior.

But not all precedents are equal, and several current Supreme Court justices have signaled that they might be open to overturning even long-standing rulings that interpret the Constitution.

Reversing precedent is unusual

The Supreme Court rarely overturns its past decisions or precedents.

In my forthcoming book, “Constitutional Precedent in Supreme Court Reasoning," I point out that from 1789 to 2020 there were 25,544 Supreme Court opinions and judgments after oral arguments. The court has reversed its own constitutional precedents only 145 times – barely one-half of one percent.

The court's historic periods are often characterized by who led it as chief justice. It was not until the 1930s under Chief Justice Charles Evans Hughes that it started to overturn precedents with any frequency. These were cases such as United States v. Darby, in which the court began to affirm President Franklin Roosevelt's New Deal economic policies after previously rejecting them as unconstitutional.

Before then, of course, many cases asked the court to interpret clauses of the Constitution for the first time, so there were often no precedents to confront or overturn.

Under Chief Justices Earl Warren, Warren Burger, William Rehnquist and now John Roberts, the court overturned constitutional precedent 32, 32, 30 and 15 times, respectively. That is well under 1% of decisions handled during each period in the court's history.

When is precedent overturned?

For most of its history the court changed its mind only when it thought past precedent was unworkable or no longer viable, perhaps eroded by its subsequent opinions or by changing social conditions.

This happened in Erie Railroad v. Tompkins, a 1938 Supreme Court case overturning a 96-year-old precedent in which the court had constructed rules about how federal courts should handle cases involving parties from different states. The court in Erie said that the original decision proved to be unworkable and had been undermined by the court's own later decisions.

The court has also said that its precedents based on constitutional grounds deserve less respect than those in which the court interprets statutes or laws. The reason is that if Congress thinks the court has erred in a matter of interpreting a statute or law, it is relatively easy for them to overturn it by passing a new law. But it's quite hard to pass a constitutional amendment, so the only real way to update the judicial understanding of the Constitution is to overrule a precedent.

Of course the most famous reversal of precedent is the 1954 Brown v. Board of Education under the Warren Court, in which it reversed Plessy v. Ferguson and struck down segregation under the “separate but equal" doctrine.

Roe v. Wade is an important precedent. In 1973 the Supreme Court ruled that women have a right to terminate their pregnancies. That right was reaffirmed in 1991 in Planned Parenthood v. Casey, with Justices Sandra Day O'Connor, Anthony Kennedy and David Souter noting that an entire generation of women came of age relying upon their right to control their bodies and terminate pregnancies in most circumstances. The justices said it would be wrong to upset that expectation.

Roe has also spurred opposition, with many wanting to overturn it. For years, presidents including Ronald Reagan, George H.W. Bush, George W. Bush and Donald Trump sought to appoint justices to the Supreme Court with the goal of overturning Roe and, with it, abortion rights. Now with a 6-3 conservative majority, the court may be poised to do that.

Justices get more comfortable reversing precedent

Beginning with the Rehnquist court, justices have become more willing to reject precedents they think were badly reasoned, simply wrong, or inconsistent with their own senses of the constitutional framers' intentions. Justice Clarence Thomas has taken this position on abortion. Justice Amy Coney Barrett during her Senate confirmation hearing argued that Roe is not a so-called superprecedent, a decision so important or foundational that it cannot be overturned.

Chief Justice Roberts has been willing to overturn settled law when he thinks the original opinion was not well argued. He did so in Citizens United, a 2010 decisionoverturning two major campaign finance decisions, Austin v. Michigan Chamber of Commerce and part of McConnell v. FEC.

In 2020, Justices Neil Gorsuch and Brett Kavanaugh in Ramos v. Louisiana went out of their way to explain and justify their views on when constitutional precedent may be overturned. They echoed Justice Samuel Alito's discussion in 2018 in Janus v. American Federation of State, County, and Municipal Employees Council Number 31. All three justices said constitutional precedent is merely a matter of court policy or discretion, more easily overturned than a precedent about a law. Sometimes, they said, constitutional precedents can be overruled if later judges view them as wrongly decided or reasoned.

Abortion foes have been preparing practically since Roe was decided to overturn it. They have set both the political conditions and legal justification to overturn Roe, and perhaps this year it will be the time when it finally happens.

David Schultz, Professor of Law, University of Minnesota; Professor of Political Science, Hamline University

https://www.alternet.org/2021/08/supreme-court/

trump appt tex judge rules reboot baby jails?! scotus 1 unsigned paragraPH NO RAtionale public arguments?! 2x?

https://www.alternet.org/2021/08/trump-supreme-court/

big lie institutionalized (msnbc?) used to justify voter suppression

https://www.alternet.org/2021/07/justice-alito/

mythical judeo xian shift

https://www.alternet.org/2021/07/supreme-court-religion/

===

omg

https://www.alternet.org/2021/07/pipeline-plans/

an 721

'Triumph for environmental justice': Oil companies scrap pipeline plans amid grassroots pressure

Julia Conley and Common Dreams July 04, 2021

Community activists in Memphis, Tennessee and northwest Mississippi celebrated a grassroots victory on Saturday after two oil companies canceled plans to build a pipeline that would have run through wetlands and several low-income, majority-Black neighborhoods.

Valero and Plains All American Pipeline had long planned to construct the Byhalia Connection pipeline, which would have been 49 miles long and linked two pipelines that transport crude oil to refineries on the Gulf of Mexico.

The two companies announced they were canceling the project "due to lower U.S. oil production resulting from the Covid-19 pandemic," but opponents of the pipeline noted that the announcement followed grassroots organizing by climate action advocates, homeowners, and elected officials at the local and federal levels.

"This is a win for the entire community of Memphis, Tennessee, but especially those in the Black community who fought it courageously," Rev. Dr. William J. Barber II, co-chair of the Poor People's Campaign, tweeted.

Community members in Memphis neighborhoods including White Chapel, Westwood, and Boxtown objected to the pipeline project, which would have run over the Memphis Sand Aquifer—leading to fears that an oil spill would pollute the drinking water of about one million people.

Local organizations Protect Our Aquifer and Memphis Community Against the Pipeline (MCAP) led rallies and garnered the support of former Vice President Al Gore and Rep. Steve Cohen (D-Tenn.), while the Memphis City Council weighed an ordinance to make it harder for the companies to begin construction.

MCAP leader Justin J. Pearson organized canvassers and lobbied the city council, and called Friday's announcement "an extraordinary testament to what Memphis and Shelby County can do when citizens build power toward justice."

A representative of the two oil companies sparked local outrage when they said South Memphis, where the Boxtown community was established in the 1860s by people who had been enslaved, had been identified as "the point of least resistance."

"We've shown them that we aren't the path of least resistance," said Pearson. "We are the path of resilience."

Lawyers for the two companies began legal proceedings against local landowners who refused to make deals with project officials; they planned to invoke eminent domain against the property owners.Last week, the Supreme Court ruled in a separate case in New Jersey that a company could use eminent domain to build a natural gas pipeline on state land.

"Their playbooks are the same everywhere," Pearson said on Twitter on Friday. "Find the poor. Appease the rich and politically powerful. Misinform the community. Make local leaders afraid to stop them. Exploit the poor. Reap billions in profits from the deaths of the poor and marginalized."

The Southern Environmental Law Center (SELC), which helped landowners fight the two companies in the legal battle, called Friday's announcement "a triumph for environmental justice."

"We are so inspired by the people of Boxtown, Westwood, and White Chapel, and the work of our amazing partners MCAP and Protect Our Aquifer, for showing what is possible when a community stands together," said Amanda Garcia, director of the SELC's Tennessee office.

FROM YOUR SITE ARTICLES

The grim truth about Biden's plan for the border - Alternet.org ›

Teachers union makes move that will make Republican heads ... ›

'Keystone XL is dead!': Climate movement secures major victory ... ›

deadly game’: Legal experts blast Supreme Court’s dead-of-night decision enshrining ‘religious rights’ over all others

David Badash The New Civil Rights Movement

November 26, 2020

At 11:57 PM Wednesday, three minutes before the country tries to celebrate Thanksgiving during a pandemic, the U.S. Supreme Court ruled 5-4 for a group of Catholics and Jews...

a good sign or just ~ rudy dreck?

supreme Court declines to take action on Trump’s Pennsylvania appeal prior to certification of Biden win

David Edwards Raw Story

November 23, 2020

The Supreme Court of the United States on Monday took no action to overturn a lower court decision that allowed the counti

alito tips conserv hand?

https://www.alternet.org/2020/11/justice-alito/

an 1120

...The core of the Republican Party strength is concentrated in the 27 Right to Work states.As discussed in a previous article, Right to Work laws are designed to weaken unions by cutting their revenue and membership. Unions represent just 7.5% of the workforce in right to work states but almost 16% in "fair share" states. The 27 "right to work" states account for 83% of the currently seated Republican Senators and 70% of their Representatives. In 2016, Trump carried 25 of the 27 these states.

JUDICIAL BRANCH – Anti-Union/Pro Business Judges Dominate the Supreme Court and Appellate Courts

The Republican Party has worked for a long time to ensure that the federal court system is dominated by conservative, pro-business/anti-union judges over the long term. Indeed, Republicans basically packed the court system when Senate Majority Leader McConnell refused to allow the Senate to vote on 105 judicial vacancies during the Obama administration which were later filled by Trump appointees.

Supreme Court. The Supreme Court now has 6 Republican appointed justices and 3 Democratic Justices. Each of the three Trump appointees had a proven anti-union/pro-corporate bias before being nominated.

Amy Coney Barrett. During her term on the 7th Circuit Court of Appeals, Barrett ruled in favor of corporate interest more than 75% of the time. She ruled that corporations are entitled to set job requirements that exclude older workers and that they may segregate workers at different locations by race. She has also expressed support for striking the entire Affordable Care Act which would deprive health insurance for 20 million people and end protections for 100 million people with pre-existing conditions.

Neil Gorsuch. During his term on the 10th Circuit Court of Appeals, Gorsuch repeatedly ruled against workers and in favor of corporations. For example, Gorsuch dissented from a majority ruling upholding a National Labor Relations Board decision that an employer must give full back pay to workers it illegally fired for union activity. Gorsuch dissented in cases in which the circuit court majority supported pro-worker NLRB decisions stating that the NLRB exceeded the scope of its authority. However, Gorsuch made no such dissent when the court ruled in favor of NLRB decisions that supported management.

Brett Kavanaugh. Kavanaugh served on the extremely important US District Court of Appeals for the District of Columbia Circuit. This court is second only to the Supreme Court in terms of prestige and power because it has jurisdiction over Congress and most federal regulations and agencies. The People for the American Way compiled a list of rulings showing that Kavanaugh consistently ruled against workers and for corporations during his 12½ years on the DC Circuit Court. Examples include Kavanaugh's opinions that would "entirely eviscerate collective bargaining;" his support for corporations seeking criminal citations for lawful union protests; and support for corporations that failed to protect workers health and safety.

Other Federal Courts. In almost 4 years Trump and the Republican Senate have appointed 24% of all active federal judges (194 of 792). There are 35 more nominations currently pending. Trump has appointed 30% of all active federal appeals court judges (54 of 179). This is more than any other president over the last 40 years. Overall, Republican appointees now account for 54% of all federal circuit court judges. The circuit courts are especially powerful because they function as final arbiter for the vast majority of cases since the Supreme Court accepts fewer than 2% of the 7-8,000 cases filed with it annually. These courts ultimately determine what the federal government can and cannot regulate – this is especially important to unions in relation to the right to organize and collectively bargain for wages, benefits and working conditions as well as the relative power of unions and corporations....

ACB

https://www.alternet.org/2020/10/majority-of-supreme-court-now-confirmed-by-senates-where-republicans-represented-fewer-americans-than-dems/

https://www.alternet.org/2020/10/how-conservative-groups-will-advance-their-agendas-before-a-supreme-court-with-amy-coney-barrett/

Amy Coney Barrett's nomination to the Supreme Court has highlighted the ways interest groups use the legal system to pursue their goals. Barrett is closely tied to the conservative Federalist Society, whose members have played a major role in President Donald Trump's judicial appointments. Organizations who support and oppose her confirmation are intensely lobbying senators and the public.

Like other justices, if confirmed, Barrett will continually face pressure campaigns from groups trying to shape the direction of American law.

I have extensively studied how special interests use the court as a public policy battleground, including in my book, “Friends of the Supreme Court: Interest Groups and Judicial Decision Making." Here's what to expect from interest groups before a Supreme Court with a Justice Barrett.

Friends of the court

The main way special interests participate in the courts is by filing amicus curiae (“friend of the court") briefs in cases that intersect with their interests. In these legal documents, groups take positions to persuade the justices to endorse their economic, political and social interests.

Although amicus briefs are filed in almost all appellate courts in the United States, they are especially prevalent in the U.S. Supreme Court. Almost every case before the court has at least one amicus brief, and there is an average of about 12 briefs per case. High-profile disputes, such as those involving abortion, affirmative action, health care and same-sex marriage, have neared or topped 100 amicus briefs.

Amicus briefs are not cheap – they can cost up to US$100,000 because of the fees related to attorneys' time and expenses to research and prepare them. And the court's rules can be manipulated to obscure who pays for these briefs. This has led to allegations that groups are purposely hiding the wealthy donors who fund these briefs to further the donors' political agendas in the court.

For example, the Lynde and Harry Bradley Foundation, a charity that promotes conservative causes, funded many of the interest groups who filed amicus briefs in Janus v. AFSCME.This 2018 decision weakened the power of labor unions by severely limiting their ability to collect fees from nonunion members used for collective bargaining.

Amicus briefs work. Justices are more likely to decide to review cases accompanied by amicus briefs. Justices tend to decide in favor of the litigant with the most amicus briefs on its side when deciding cases. In their opinions, justices frequently cite and borrow language from amicus briefs.

Importantly, some organizations who file amicus briefs are more privileged than others. The justices are deferential to high-profile, elite interest groups, such as the American Civil Liberties Union and the Chamber of Commerce, particularly if those groups share their ideological preferences. The justices tend to vote in favor of the positions advocated by these organizations and adopt their legal arguments more often than lesser-known groups.

The conservative wishlist

If confirmed, the addition of Amy Coney Barrett will give conservative justices a 6-3 majority on the court. Although both liberal and conservative groups file amicus briefs in roughly equal numbers, this will motivate conservative interest groups to push their agendas before a sympathetic court. Liberal groups will be left trying to defend their past victories.

What does this conservative agenda look like? First up will be dismantling the Affordable Care Act and the Voting Rights Act, which are already on the court's docket.

More long-term goalswill include restricting access to abortion, limiting the rights of the criminally accused, halting the expansion of LGBTQ+ rights, increasing the power of business and expanding the scope of the Second Amendment, which protects an individual's right to bear arms.

High-profile groups leading this conservative charge will include Americans for Effective Law Enforcement, the Cato Institute, the Chamber of Commerce, the Criminal Justice Legal Foundation and the Washington Legal Foundation.

What are the tactics?

The first step toward achieving these goals will be to influence the Supreme Court's agenda.

Each year, the court receives petitions to review about 8,000 cases, but hears fewer than 80 cases. To shape the docket, interest and advocacy groups will orchestrate test cases by carefully selecting individuals to challenge policies they oppose. Once those cases are appealed to the Supreme Court, some groups file amicus briefs at the agenda-setting stage urging the justices to review a case.

Then these groups typically file a second brief at the decision-making stage. At this point, other organizations also file amicus briefs to lobby the justices to support the conservative outcome in the case, often working with the attorneys representing the conservative litigant. This provides the attorneys with the opportunity to coordinate their legal arguments to appeal to the conservative justices on the court.

For example, in District of Columbia v. Heller, which established the individual right to keep and bear arms in 2008, Heller's lawyers coordinated with conservative interest groups on the content of their amicus briefs. These briefs contained arguments from historical, legal, linguistic and statistical perspectives, among others.

Liberals follow this playbook, too. One example: Before she was on the court, Ruth Bader Ginsburg filed an amicus brief on behalf of the liberal American Civil Liberties Union in Craig v. Boren and advised Craig's attorneys. This led to the landmark 1976 precedent that established how the court evaluates claims of gender discrimination.

In their briefs, conservative groups will advance theories of judging known as textualism and originalism. These closely linked approaches hold that the best way to interpret the Constitution is according to how it was understood at the time of its ratification.

For example, a judge might ask herself: How would the informed public in 1791 understand what “Congress shall make no law respecting an establishment of religion" means? With a majority of justices on the court sympathetic to these theories of constitutional interpretation, textualist and originalist amicus briefs are likely to be particularly effective.

If successful, this process will repeat itself over the years and in many different cases. This is necessary for interest groups because it takes a long time to achieve legal change, since the justices are generally reluctant to overturn their previous decisions. Instead, the justices tend to chip away at them over time.

For example, the American Civil Liberties Union was successful convincing the court to apply the exclusionary rule to the states in Mapp v. Ohio in 1961. This rule holds that evidence police gather illegally is inadmissible in a trial. Subsequently, conservative Supreme Court justices have followed conservative groups' arguments by carving out numerous exceptions to the exclusionary rule. Although Mapp is still the law of the land, it is a shell of its former self.

With a 6-3 majority of conservative justices on the court – five of whom are 70 years old or younger – this strategy can be expected to continue for decades to come. This will give conservative groups and the justices who agree with them plenty of time to mold American law in their image.

Paul M. Collins, Jr., Professor of Legal Studies and Political Science, University of Massachusetts Amherst

This article is republished from The Conversation under a Creative Commons license. Read the original article.

https://www.alternet.org/2020/10/amy-coney-barrett/

no lnx

Ralph Nader breaks down 'travesty' of Barrett's confirmation as Senate ensures 'corporate supremacy' reigns

Ralph Nader and Common Dreams October 18, 2020

In a 1995 book review published in the University of Chicago Law Review, Elena Kagan (now Justice Kagan) wrote about judicial nominees avoiding disclosing their views on legal issues. She said, "[T]he safest and surest route to the prize lay in alternating platitudinous statement and judicious silence. Who would have done anything different, in the absence of pressure from members of Congress?"

This week, nominee to the High Court, Judge Amy Coney Barrett followed the "say-nothing" playbook, through injudicious and repetitious filibustering, essentially claiming that it was improper for a judge "to opine" on matters outside the judicial process.

Really? Judge Barrett "opined" in lectures, interviews, and articles as a judge as have many sitting Supreme Court Justices. Her mentor, Justice Antonin Scalia regularly made controversial declarations at law school addresses and all kinds of other public appearances.

Judge Barrett's hours before the Senate Judiciary Committee were consistently defiant. She refused to answer questions about the legality of intimidating voters, or whether all losing presidents should commit to a peaceful transition of power. Judge Barrett even refused to say whether she accepts the science on the climate crisis because she lacks the expertise on this issue and because it is a controversial topic.

Senator Pat Leahy said, "President Trump claims he has an absolute right to pardon himself. Would you agree, first, that nobody is above the law — not the president, not you, not me — is that correct?" Judge Barrett said she agreed no one is above the law but could not answer the question about a president's pardon powers because "it had never been litigated."

She would not even say that a President cannot unilaterally change the date of the election. Perhaps Judge Barrett should review Article II of the Constitution which empowers Congress to choose the timing of the general election and a law enacted by Congress that requires the election to be held on the first Tuesday after the first Monday in November.

The hearings were truly a travesty. Too few hearing days, exclusion of prominent civic and scholarly critics of her record and statements, and remarkably, the defeatist position by the Democrats. Their repetitive political campaign-related focus on Roe v. Wade and access to abortions, Obamacare, and the Second Amendment was directed to the voters back home. The Republicans did their things for the elections too, led by Chair Lindsey Graham. (This is an important reason why nomination hearings should not be conducted close to elections).

It gets worse. Chair Lindsey Graham pronounced victory for the judge in his opening statement and by their behavior the Democrats largely agreed, using the occasion to share their political views without exposing how a Judge's corporatist ideology can let corporations prevail over workers, consumers, the environment, and the electoral process.Republican Justices on the Supreme Court, most notoriously, in the Citizens United case opened the floodgates to corporate cash further corrupting our elections.

As constitutional law expert, Bruce Fein noted, Judge Barrett maintained no distance between her and her nominator, President Trump, who stunningly has said, "I have an Article II, where I have the right to do whatever I want as president." As a presidential tyrant, Trump knew how to choose a judicial nominee who is not likely to reject tyranny.

Except for Senator Sheldon Whitehouse (D-RI), the Democrats, as they have in previous Supreme Court nomination hearings, declined to question Judge Barrett about rampant corporate crime, and corporate personhood harming all Americans. Corporate power and control are scraping the rule of law with worsening brazenness, privileges, and immunities.

A 6 to 3 corporatist Court will install an era of corporate supremacy over real people that has no foundation in our Constitution.There is no mention, whatsoever, of the words "corporation" or "company" in the Constitution, the juridical foundation of our Republic. Treating corporations as artificial entities – as "persons" is based on a headnote in the 1886 Supreme Court case, Santa Clara County v. Southern Pacific Rail Road. The headnote that was not even part of the Court's opinion. This judicial unfortunate and legally suspect twist has been relied on and expanded by generations of corporatist Supreme Court Justices.

Senator Whitehouse went to the root of the choice of Judge Barrett. It's about power by the few over the many. The long-driven goal of the Koch Brothers and the Bradley Foundation.

The Democratic Party should have avoided all these losing nomination battles over Trump's, Neil Gorsuch, Brett Kavanaugh, and now Amy Barrett. How? By handily winning half a dozen Senate seats in 2016 and 2018 that they botched big time. They even lost seats of sitting Senators Heidi Heitkamp (D-ND), Claire McCaskill (D-MO), and Bill Nelson (D-FL) the latter to then-Governor Rick Scott. Rick Scott, prior to being governor, was the CEO of Columbia/HCA which under Scott engaged in one of the largest Medicare frauds in history. The federal government fined Columbia/HCA $1.7 billion for this outrageous behavior.

In their own ways, these Senators tried to be Republican-lite by avoiding front-burner issues such as higher minimum wages, law and order for corporate outlaws, full Medicare for All, and the creation of good community-based jobs to rebuild our crumbling infrastructure. These and other much-needed programs could be paid for by restoring corporate taxes to the level they were in the more prosperous nineteen sixties.

Because of the two-party duopoly, our country has been cornered with the "choice of the lesser of two evils" as both parties were dialing for the samecorporate/commercial campaign dollars. In 2016, Bernie Sanders showed that big amounts of money can come from many small donors. The Democrats are outspending the Republicans in many races, but more than money is needed to win elections. What's their excuse for letting the worst Republican in Party history win, again and again, control the Congress with one or both Houses, and entrench their clenched-teeth judges for decades?

Look in the mirror Democrats. Start self-examining why collectively you've let the American people down? It's time for the rising movement of elected and grassroots progressive to take over.

FROM YOUR SITE ARTICLES

Amy Coney Barrett can't name the 5 freedoms in the First ... ›

Watchdog group accuses Amy Coney Barrett of 'unconscionable ... ›

Ralph Nader: Here are 8 glaring issues Democrats are avoiding in ... ›

supreme Court hands victory to school voucher lobby – will religious minorities, nonbelievers and state autonomy lose out?

720 the conv

---

Supreme Court Blocks Trump from Ending :{DACA:(style="box-sizing:border-box"):}: in Victory for Immigrants dn

narrow ruling, not that he can't he was just sloppy (not 1st x)

Court Rules Trump Cannot End :{DACA:(style="box-sizing:border-box"):}:

===

https://www.alternet.org/2020/06/the-supreme-court-just-set-back-the-religious-rights-assault-on-america/

https://www.alternet.org/2020/06/cry-me-a-river-head-of-right-wing-group-that-spent-millions-on-gorsuch-mocked-for-fury-over-lgbtq-rights-opinion/

head of a far right wing activist group is furious conservative Justice Neil Gorsuch wrote Monday’s majority Supreme Court opinion that finds discriminating against LGBTQ workers is illegal.

Judicial Crisis Network, a “powerful dark money group pushing [the] court to right,” ran a $10 million campaign in 2017 to force Gorsuch onto the bench. He is President Donald Trump’s first Supreme Court nominee. The group also spent $1 million to block President Barack Obama from putting Merrick Garland on the bench.

In a series of tweets Carrie Severino blasted Justice Gorsuch and the five others who sided with his opinion. She even claims they are merely trying to appeal to college students by finding that Title VII of the Civil Rights Act of 1964 protects LGBTQ workers from discrimination.

Gorsuch, a textualist who replaced Justice Antonin Scalia on the bench, decided that as written, the actual words of the Civil Rights Act make clear that discriminating on the basis of sex is illegal.

severino, who also happens to be married to the Roger Severino, a far right wing religious activist who heads the Dept. of Health and Human Services Office of Civil Rights under Trump, is furious....

===

https://www.alternet.org/2020/06/conservatives-including-justice-alito-melt-down-over-supreme-court-decision-protecting-lgbtq-americans-against-workplace-discrimination/

===

aha: omg vote by mail quashed in swing states! see vote by mail

https://www.alternet.org/2020/05/why-experts-are-worried-about-absentee-voting-across-the-country/

More than 30 statewide elections will be held in the 91 days from May 19 to August 18, previewing how unfamiliar or difficult absentee voting may be across America this fall.

The next big test is June 2, when eight states and the District of Columbia hold their presidential primaries. Despite President Trump’s claims that absentee voting cannot be trusted, red-run states (Indiana, Iowa, South Dakota) holding primaries that day have more experience with voting by mail and voters dropping off ballots at polling places than blue states and territories (Maryland, New Mexico, Pennsylvania, Rhode Island and D.C.). Only one state in this group, purple Montana, has held an election where most people voted absentee.

===

yikes

https://www.alternet.org/2020/05/mitch-mcconnell-accelerating-plan-to-place-at-least-one-more-justice-on-supreme-court-before-the-election-report/

barasso

===

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…

===

https://www.alternet.org/2020/04/marco-rubios-final-humiliation-gops-seven-year-campaign-against-key-obama-policy-was-just-terminated-by-the-supreme-court/

“Q: Did Marco Kill Obamacare?” asked a 2015 tweet from the presidential campaign of Sen. Marco Rubio, R-Fla., before presumptively answering the question: “A: You bet he did.”

OK, so who wants to tell him?

Rubio, like his fellow failed presidential aspirant Sen. Ted Cruz of Texas, staked his campaign on bringing down Barack Obama’s signature health care law, the Affordable Care Act (ACA). Rubio began his specific effort to sabotage the law in 2013, a few short years after entering the Senate and before setting out to win the White House. Seven years later, the Supreme Court made clear what was otherwise evident then: Rubio and his fellow Republicans didn’t kill Obamacare, they only made it a bigger mess.

While Cruz’s infamous stunt to undermine the ACA by shutting down the government — complete with his 2013 reading of Dr. Seuss’s “Green Eggs and Ham” on the Senate floor — proved he was willing to “troll the libs” at any cost, Rubio’s less flashy legal assault was meant to cement his status as the Obama-slayer.

At the time, Rubio was still making an attempt to burnish his Tea Party bonafides. As congressional Republicans unsuccessfully voted to defund the ACA more than 50 times he went on the warpath against an obscure portion of the law meant to safeguard participating insurance companies against crippling financial loss as a result of the new requirement to cover clients with pre-existing conditions. Under what was known as “risk corridors,” the law helped some companies defer the cost of lower premiums in the early days of the ACA marketplaces. If an insurance company priced its plans less than 3% below a set target, the government would cover the losses. Conversely, an insurer that benefited from millions of new customers under the law’s individual mandate had to pay its excess profits to the government. Ultimately, the goal was to entice more insurers on the markets, leading to lower prices for consumers. Like the ACA itself, risk corridors have a Republican pedigree and were even included inGeorge W. Bush’s Medicare Part D program .

Still Rubio picked the program to push forward his presidential ambition by promoting what he thought would prove a poison pill to the larger health care law.

Decrying it as a “taxpayer bailout,” he testified against risk corridors as the star witness at a House Oversight Committee hearing and penned op-eds against the program. In a classic case of a solution in search of a problem, Rubio claimed that the ACA was suffering a “death spiral,” an actuarial term used to describe a marketplace spinning out of control, to push for the demise of the law’s infrastructure. Although Rubio didn’t actually sponsor _{the provision in Congress’ 2014 appropriations bill}_ that prevented the federal government from using certain funds to make the required payments to insurers, he took credit for it. The Rubio-inspired provision also required the program to become budget-neutral.

The Republican rider effectively pulled the rug out from under insurers. After companies had already locked in their 2015 rates on the assurance of a government stopgap, Congress changed the rules such that the federal government could only afford to pay 13 cents of every dollar owed to the insurance companies. Insurers compiled an overall loss of $5.5 billion the year after the Republicans blocked one avenue of funding. The risk corridors were a temporary program, which expired after 2016, but insurers ultimately lost $12 million due to Rubio’s shenanigans.

“So far, we’ve succeeded in stopping the Obama administration from bailing out healthcare companies under ObamaCare, and it’s critical that Congress once again stand with taxpayers to stop any taxpayer bailout of health insurers from happening,” Rubio _{wrote}_ to Republican leadership at the time.

As lawyers for the insurance companies argued before the Supreme Court, Rubio and congressional Republicans orchestrated “a massive government bait-and-switch.” Republicans weren’t able to muster the votes to repeal the ACA outright, so they just tried to bail out on the law’s statutory obligations. The end result was weakened Obamacare markets with fewer insurers and higher premiums. Premiums that, as the Supreme Court just ruled, must still be subsidized by the federal government.

On Monday, the Supreme Court voted in an 8-1 decision against Rubio’s gimmick to take down Obamacare. Justice Samuel Alito was the sole dissenter, arguing that the decision provides “a massive bailout for insurance companies that took a calculated risk and lost.” Writing for the majority, Justice Sonia Sotomayor relied on what she called “a principle as old as the nation itself: The government should honor its obligations.” Republicans in Congress could not simply decline to fund the program, the Supreme Court ruled. The government still has to pay insurers $12 billion all of these years later.

So the man Donald Trump derided as “Little Marco” didn’t win the White House, and didn’t kill off Obamacare either. He simply _{drove small insurers out of rural America}_, leaving many coverage areas with no competition in the marketplace. In effect, he created a monopoly by driving out small insurers, quite likely so he could attract Koch brothers funding for his ill-fated presidential campaign.

Of course this was all eminently predictable, according to a plain reading of the relevant laws and long-standing jurisprudence. But Rubio’s instance on a vanity campaign that cost millions of dollars and denied millions of people access to affordable health care feels like more than a pathetic afterthought now, as our embattled health care system struggles to meet the challenge of a global pandemic.

===

https://www.ecowatch.com/clean-water-act--2645821708.html

the U.S. Supreme Court ruled against the Trump administration Thursday in a case Earthjustice called "the clean water case of the century."

The case concerned a Maui, Hawaii wastewater treatment plant that pumped around four million gallons of sewage a day into groundwater, where some of it reached the Pacific Ocean, The New York Times reported. Maui County and the Trump administration argued that the plant did not need a Clean Water Act permit if the waste was passing through groundwater before entering protected waters, but the court rejected that narrow interpretation of the landmark environmental law six to three.

"We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act," Justice Stephen Breyer wrote in the majority opinion, as Earthjustice reported

[twt?]

Earthjustice brought the case on behalf of Maui environmental groups Hawaiʻi Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation and West Maui Preservation Association. Both the Hawaiʻi District Court and the Ninth Circuit Court of Appeals had ruled against the county, but the Supreme Court case was high stakes.

"If the Supreme Court endorses the county's position, it would open a massive loophole for every polluter in the country to avoid regulation of their discharges by the law that protects the nation's waterways," arguing Earthjustice attorney David Henkin said in November 2019.

By backing up the county's case, the Trump Environmental Protection Agency was also reversing the agency's historic position, The Associated Press reported. This is in keeping with other Trump administration attempts to weaken water protections, such as its rollback of the Clean Water Rule rule granting protection to small streams and wetlands.

"This decision is a huge victory for clean water," Henkin said. "The Supreme Court has rejected the Trump administration's effort to blow a big hole in the Clean Water Act's protections for rivers, lakes and oceans."

Henkin said it was likely the lower court would now order the Maui plant to get a permit for its activities and ensure they do not damage the ocean. They have already been found to have harmed a coral reef.

Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh joined Breyer in the majority opinion, while Justices Clarence Thomas, Neil Gorsuch and Samuel Alito dissented, though Alito wrote his own dissent, The New York Times reported.

"Based on the statutory text and structure, I would hold that a permit is required only when a point source discharges pollutants directly into navigable waters," Thomas wrote, according to The Associated Press.

In the majority ruling, the court did not go as far as the environmental advocates, who argued a permit was needed for any pollutants that "actually and foreseeably reach navigable surface waters," The New York Times reported.

The Ninth Circuit Court of Appeals had ruled entirely in favor of the environmental groups, but Breyer said that standard was too all-encompassing and would include things like "pollutants carried to navigable waters on a bird's feathers."

Instead, he argued that discharges into groundwater had to be regulated if they were the "functional equivalent" of a direct discharge.

But Earthjustice still touted the decision as a win, and CNN Supreme Court analyst and University of Texas School of Law professor Steve Vladeck said it would boost water-protection efforts.

"Compared to the argument that it does not require permits for any groundwater pollution, which the county and the three dissenting justices all argued, this result will both empower the federal government to more aggressively regulate such pollution and allow private parties to sue when that regulation fails," Vladeck told CNN.

===

authoritarian to use levers of pwr in election

https://www.alternet.org/2020/04/voting-rights-roundup-delay-in-2020-census-data-release-could-heavily-disrupt-redistricting-process/

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.

===

https://www.alternet.org/2020/04/why-the-supreme-courts-contentious-wisconsin-election-ruling-looks-even-worse-now/

no lnx

Why the Supreme Court’s contentious Wisconsin election ruling looks even worse now

Written by Cody Fenwick April 15, 2020

When the Supreme Court inserted itself last week into the rulemaking of a Wisconsin election mere hours before voting was to begin, it ratcheted up the national and partisan stakes of the contest. Many, including Justice Ruth Bader Ginsburg, accused the conservative majority on the court of risking “massive disenfranchisement” by requiring all mail-in ballots to be sent by Election Day rather than allow a six-day extension, despite the chaos incited by the pandemic and fears that many voters wouldn’t receive the ballots they properly requested in time.

Now, we have the results of that election — and in a crucial respect, the conservative majority’s judgment looks even worse than it did when it was ordered.

For those Democrats and progressives who opposed the ruling, which was widely seen as facilitating the GOP-controlled state legislature’s attempt to suppress the vote in its own partisan favor, the worst fears didn’t come true. While the results of the election will likely face legal challenges, the initial outcome is a major win for Democrats in the state. In the most prominent race, the election of a state supreme court justice, the conservative incumbent Daniel Kelly suffered a resounding defeat. Jill Karosky, his liberal opponent, appears to have won by a large margin and will take his seat. Since the state supreme court can shape the electorate of Wisconsin, a key swing state in the presidential election, this event could have national consequences.

But even though the outcome of the election is one Democrats and progressives would favor, there’s still plenty of reason for them to be outraged about the process. There seems to be little doubt that the GOP’s insistence on holding the vote in the middle of a pandemic was a cynical voter suppression ploy, and even if it failed, it could have serious public health consequences if the virus spread at polling places. It likely many voters who would have liked to have cast ballots were too scared to leave their homes, and this disenfranchisement is regrettable, no matter which party benefited.

And the U.S. Supreme Court made likely made this worse. If voters didn’t receive their mail-in ballots in time due to the pandemic-related delays, they may have decided — because the Supreme Court’s truncated the deadline — to either risk exposure to COVID-19 by going to the polls or to forego voting altogether. And one of the reasons the court gave for enforcing this decision on voters now looks even less reasonable.

In its ruling, the conservative majority warned that the deadline extension for mail-in ballots, put in place by a lower district court, was “unusual.”

“The unusual nature of the District Court’s order allowing the ballots to be mailed and postmarked after election day is perhaps best demonstrated by the fact that the District Court had to issue a subsequent order enjoining the public release of any elections results for six days after election day,” the unsigned opinion said. “It is highly questionable, moreover, that this attempt to suppress disclosure of the election results for six days after election day would work. And if any information were released during that time, that would gravely affect the integrity of the election process.”

As I noted in my critique of the ruling last week, this was a somewhat understandable concern because it’s generally accepted that election results should not be released while voting is still ongoing. However, I noted at the time that the court seemed to be exaggerating the importance of this consideration while ignoring the other concerns about the integrity of an election conducted during a raging pandemic.

But now, the election day has passed, and the six-day waiting period has passed. And we’ve seen that the order to keep the results of the vote secret for nearly a week did, in fact, work. We didn’t find out the results until Monday, April 13, as had been ordered — meaning the only legitimate concern the Supreme Court majority had expressed in favor of its ruling looks less reasonable now. Had the election results been released prematurely, the court’s majority surely would have felt some vindication. Now, though, it seems it may have underrated the chance that the results could be kept secret — the proposition was not so “highly questionable” after all. The major flaws in the election’s integrity were the chaos of voting in a pandemic and the mess created in the absentee ballot process. The court’s stated concerns — which many argued were a thin veil for a decision based in partisan interest — didn’t come to fruition.

These mail-in ballot flaws, too, have been exacerbated by the Supreme Court majority’s wording. It insisted that the ballots had to be “postmarked by election day, April 7, 2020, and received by April 13, 2020 at 4:00 p.m.” The problem is, many ballots appear to have been sent in by the deadline, but the postal service didn’t postmark them at all. So even if the voter did everything right, a strict reading of the court’s ruling would suggest that their vote shouldn’t be counted. Disputes about this consideration are ongoing.

https://www.alternet.org/2020/04/investigative-reporter-breaks-down-the-real-reason-republicans-threw-a-fit-in-wisconsin-trumps-gop-is-canceling-the-american-peoples-right-to-vote/

no lnx

Investigative reporter breaks down the real reason Republicans ‘threw a fit in Wisconsin’: Trump’s GOP is ‘canceling the American people’s right to vote’

President Donald J. Trump and Vice President Mike Pence walk with Senate Majority Leader Mitch McConnell, R-Ky., and Senator Roy Blunt, R-Mo., Tuesday, March 10, 2020, upon their arrival to the U.S. Capitol for a Senate Republican policy lunch. (Official White House Photo by D. Myles Cullen)

Written by Chauncey DeVega / Salon April 12, 2020

Encouraged by the pain, suffering, misery and distraction caused by the coronavirus pandemic, Donald Trump is continuing his assault on American democracy and the rule of law.

His most recent move: removing at least seven inspectors general who provide independent oversight within various departments of the United States government.

Trump is a malignant narcissist with authoritarian tendencies and may well be a sociopath. Like a Mafia boss, he views personal loyalty as more important than loyalty to the Constitution and the rule of law. Aided by Attorney General William Barr, Trump appears poised to loot the coronavirus relief funds passed by Congress, harass and silence his political enemies, speed up the country’s downward slide into failed democracy, and unleash more cruelty against those Americans he deems to be insufficiently loyal or otherwise “undesirable.”

On Twitter, Walter Shaub, former director of the Office of Government Ethics, summarized recent developments:

A last line of defense in this war on ethics and law is the Inspector General community. They’re the eyes of the American people, objective investigators traditionally freed to pursue accountability by the safeguard of bipartisan congressional protection.

What began with the fall of the ethics program is entering the end game with the potential fall of the Inspector General community. The government is failing us, safeguards that took two centuries to build have crumbled, and fascism is eyeing this republic like lunch.

Shaub is perhaps being optimistic: Donald Trump and his allies, both foreign and domestic, are already gorging on democracy. Trump makes no effort to hide his contempt for American democracy. He is obvious and unapologetic.

Last week, Trump admitted that “You’d never have a Republican elected in this country again” if Americans were universally permitted to vote by mail.

Trump is just channeling a belief that has long been expressed both in private and in public by Republicans and other members of the right-wing movement. On this, Trump and the Republicans are correct: According to public opinion polls and other research, the American people overwhelmingly reject their policies and goals.

Because democracy is antithetical to today’s Republican Party, Donald Trump has repeatedly condemned voting by mail because he believes it will be disadvantageous to his chances of winning another presidential term in 2020. In the final analysis, Republicans want to make voting more difficult even if it means more Americans will fall ill and die from COVID-19.

Last Monday, the U.S. Supreme Court endorsed Trump and the Republicans’ ongoing assault on American democracy. In a 5-4 decision, the court’s “conservative” majority ordered that Wisconsin’s primary election could not be delayed because of the coronavirus pandemic, and no extension would be allowed for mail-in ballots. This decision forced the people of Wisconsin — most notably nonwhite people, students, young people, and other Democratic Party’s base in cities like Milwaukee and Madison — to choose between their lives and their constitutionally guaranteed right to vote.

The Democratic Party’s leaders have apparently decided that expanded mail-in voting is a necessary measure, and the best way to defeat Donald Trump in the context of the coronavirus pandemic.

In reality, matters are not so simple.

Greg Palast is an investigative journalist whose work has been featured by the BBC, the Guardian, the Nation, Rolling Stone, as well as on Salon.

He is the author of the bestselling books “Billionaires & Ballot Bandits” and “The Best Democracy Money Can Buy.” Palast is one of the country’s foremost experts on voter fraud and how elections are rigged to suppress and otherwise interfere with the will of the people in a democracy.

He warns that mail-in voting as it currently exists is likely to guarantee Donald Trump’s victory in the 2020 election. Palast also explains how the Supreme Court decision on the Wisconsin primary election was really about purging nonwhite voters in order to maximize Trump’s chances of winning that key battleground state.

Palast says, however, that the Democratic Party’s new mail-in voting proposals can be improved so that the will of the American people can be fully realized at the ballot box — which will likely ensure Trump’s defeat in November.

You can also listen to my conversation with Greg Palast on my podcast “The Truth Report” or through the player embedded below.

This conversation has been edited for clarity and length.

What is democracy? What does it mean to you?

To me, it’s very simple: Every citizen gets to vote, and every vote gets counted. If you don’t have those two things, you don’t have a democracy.

Donald Trump has repeatedly said that he opposes mail-in ballots and if mail-in ballots are allowed that no Republican will ever get elected in the United States again. What were your thoughts when you heard the president of the United States making such bold and obvious threats against the country’s democracy?

Of course, it shows Donald Trump’s totalitarian mindset. My second thought is that the Democrats are making a mistake by thinking, “Well, if Trump says mail-in ballots are a bad idea, then let’s make sure all Americans mail in their ballots.”

Just the logic of it. Donald Trump says, “I hate mail-in ballots,” and the Democrats are saying we must have expanded mail-in ballots because of the coronavirus. But how do we work through the puzzle that the Republican Party actually does much better with mail-in voting? Shouldn’t Trump be encouraging that way of voting, because Republicans have great experience in suppressing votes and other ways of rigging elections?

Republicans know that they can just throw out the mail-in ballots.

Remember, when a person fills out a mail-in ballot it is not the simple task of just picking a candidate, sealing the envelope and then mailing it. You must have the right envelope. You have to answer questions on the outside of the envelope. You have to have the correct postage. You have to have all this information. In many states there has to be a witness or a notary, which is not easy to do. The mail-in ballots in many states are not postage-paid. This is a big problem because, for example, Ohio has a little square where it says, “Put your stamp here.” Well, that envelope requires two stamps. But if you were to look at the envelope, most people would assume it is just one stamp.

There is no question that Republicans do much better with mail-in voting than the Democrats. Republicans are better with mail-in voting because more of them do it. So there is a practical advantage with experience. Ultimately, there should not have been in-person voting and elections held in Wisconsin on Tuesday. To do such a thing is insane. There have to be other and better ways to vote, especially given the coronavirus. These solutions include early in-person voting and improved mail-in voting.

For example, in Hollywood there is drive-up voting where a person does not have to leave their car. There should also be drop-off boxes and other ways to get a ballot other than waiting for a card that a person may never even see or get. The Republicans are using this trope where mail-in voting is a bad thing — if it benefits Democrats. Do not forget that Republicans actually use mail-in voting more and they are defeating the Democrats using it.

The U.S. Supreme Court ruled that the coronavirus pandemic does not constitute an emergency sufficient enough to delay voting in Wisconsin and that people should not be given more time to mail in their ballots. To a reasonable observer the court’s decision makes no sense and is obviously endangering the lives of voters. What was the real motivation here?

The basic logic is there are five Republicans on the U.S. Supreme Court who can tell the other justices “Screw you! Case closed!”

Here is their real argument: “We’re Republicans. This is what we want. Period.”

Consider what happened several weeks ago. Mike DeWine, the Republican governor of Ohio, did not want the vote to take place. The Democrats sued to force him to hold the primary. Being the governor, he said, “Screw you. I’m not holding the election.” He shut it down.

When the Republicans decide to delay or not have an election it is fine with the U.S. Supreme Court. The Democrats could not even get a hearing with the court about what DeWine did in Ohio. But when the Republicans wants to stop a delay in Wisconsin, the Supreme Court intervened.

The big picture: Why is this all happening? What is this fight really about? The Republicans do not care about Bernie Sanders versus Joe Biden. That is a settled issue, it’s over. The Republicans threw a fit in Wisconsin because the real issue is the Wisconsin State Supreme Court.

The Republican legislature voted that the state must remove 232,000 voters, who they claim have moved. That is not true, of course. Those voters have not moved. Most of the people on that list have never moved anywhere. They have not moved out of their county. The governor and lieutenant governor are Democrats and they are not going to purge those voters. The Republicans then went to court to force the Democrats to make those voters ineligible. Tuesday was also the general election for the Wisconsin Supreme Court. That was the real issue.

The Wisconsin Supreme Court is controlled by the Republicans, and the Democrats were trying to take it away from them. With the decision about the coronavirus and mail-in ballots, the Republican Party’s control of the Wisconsin Supreme Court is not locked in. The Republicans will be able to remove a quarter million people from the voting rolls — voters who are more likely to support the Democrats.

Donald Trump supposedly won Wisconsin by 22,000 votes in 2016. Now 10 times that number will be purged by Republicans. That will give Donald Trump the state of Wisconsin in 2020. That is what the controversy and the U.S. Supreme Court decision is really about.

This is all part of a much larger strategy where Republicans rig elections. In urban and predominantly black and brown areas of Wisconsin there were almost no voting machines. People were waiting in long lines and risking their lives because of the coronavirus pandemic.

In rural areas of Wisconsin, where the virus has not yet hit in a real way, there is in-person voting. Republicans are more likely to mail in their ballots than Democrats and so they’ve already voted. Rural areas are also not as crowded at the polls. That makes it safer. Poll workers are older and they’re high-risk. They are also not reckless. There was a problem getting a sufficient number of polling officials and workers for Milwaukee. As such, the number of polling stations was reduced from 180 to three.

Because many people do not have cars, even getting to the polls in more populated urban areas during the coronavirus is dangerous. And there is the risk of going on mass transit as well. Tuesday’s election was a total fix by the Republicans. It was a joke of an election. The Republicans loved it. They do not want to expand mail-in voting.

On mail-in voting, make note of how Trump complained about the Democrats’ proposals. He was not complaining about mail-in voting in general. He was specifically condemning the Democrats’ proposals for mail-in voting. Trump knows that if instituted, the Democrats’ mail-in voting plan will wipe out the Republicans.

The Democrats want to make mail-in voting really work, and they want to extend early voting to a three-week period. That would also include evening voting. If the public is allowed to vote at different times, it will make it easier to keep a safe distance during the coronavirus epidemic. Voting will be much safer. What the Democrats want to implement about mail-in voting and other such changes is excellent.

But if there is mail-in voting as it is currently implemented in most states, Donald Trump cannot lose. The mail-in voting system as it exists will almost guarantee Trump and the Republican Party’s victory. Mail-in voting is a disaster for Democrats and it has always been a total disaster.

But Trump does have one thing right: If every eligible American votes then the Republicans are screwed.

If the Democrats know that they are heading for a mail-in election in 2020 because of the coronavirus, however, then they can improve the process and also have time to educate the public about this new and better system.

There is this hopelessly naïve and in many ways pathetic narrative being circulated by too many journalists and other political observers that any talk about Donald Trump canceling the 2020 presidential election is somehow ridiculous, that such a thing cannot happen in the United States. But many such people have zero credibility given that they also said that Donald Trump could not possibly be elected president. How do you evaluate these concerns?

What we are heading for in America is not Donald Trump canceling the 2020 presidential election but just canceling the American people’s right to vote.

Donald Trump can just hold a pretend election. America has a great deal of experience with doing such a thing. There is a massive system in place to purge voters. Many Americans will never receive their mail-in ballots. Ballots will never get counted. They also get disqualified for ridiculous reasons.

Every time there is an impediment to voting and registration in America it targets young people, black people and brown people. Low-income people are targeted. This is another version of Jim Crow racially segregated voter suppression and vote theft. Trump and the Republicans have many ways of holding an election and pretending that he was legitimately elected when, of course, he was not.

What are some specific tactics and strategies the Republican Party and Donald Trump’s agents can use to amplify their interference in the American people’s right to vote — and have their vote properly counted — in the 2020 election?

A study from MIT puts the loss of mail-in ballots at 22 percent. That is 25 million ballots if the United States goes to an 80 percent mail-in voting system.

The Republicans would not need to bring in new people or ramp up their voter suppression oppression. With the Electoral College, it is easy to steal an election. Stealing an election is much easier because in that system all one has to do is target the “battleground states” such as Ohio, Michigan and Wisconsin.

Places that we don’t think of as “swing states” — North Carolina and Georgia, for example — are gradually becoming “minority majority.” The Republicans know they are in trouble in Georgia. How do they keep control of the South? They manipulate the vote by purges, gerrymandering, tricks with mail-in voting and other techniques. The Republicans have many ways of keeping people from having their vote counted. Again, if the Democrats fix the system, they can lessen the impact of Republican Party interference and thus make sure that votes in support of the Democratic Party are fully counted.

What is the role of the coronavirus pandemic in the 2020 presidential election?

The coronavirus is voting for Donald Trump. If in-person, in-precinct voting is required and the coronavirus is present in that community, then people are going to be afraid.

There may be lingering fear of the coronavirus even if it is “officially” gone because no one trusts Donald Trump and his administration. That fear of the coronavirus is going to massively hurt the urban vote for the Democrats. If that happens, Trump wins again in 2020. If the United States continues with the mail-in system it currently has, then Donald Trump wins again in 2020. The coronavirus votes for Donald Trump. It is really that simple. The vote won’t even be close.

===

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/

no lnx

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.

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.

===

see scotus, roberts, covid

https://www.alternet.org/2020/04/why-the-supreme-court-and-the-coronavirus-could-be-a-lethal-combination-for-the-right-to-vote/

===

https://www.alternet.org/2020/04/how-the-war-against-voting-rights-became-a-pillar-of-the-conservative-agenda/

4/20 WI election pushed tho pandemic cf prev voter suppress; state scotus 5-2 one of worst guys (appt?) by walker vs smart dem woman

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.

Bill Moyers: So you wrote not long ago, “There are people living in America who no longer have a president who claims to represent or even care for them.” I think we could amend that to say there are people living in America who no longer have a Supreme Court who claims to represent or even care for them. Would you agree with that?

Dahlia Lithwick: I mean, I fear that for the most part I do. And there’s probably no better metric for that than voting. I mean, we haven’t talked about voting, but I think that we have seen a Supreme Court in a very compressed amount of time not only eviscerate the Voting Rights Act and do away with the idea that there is still racial discrimination in voting, but then turn around and said last year, “We’re also out of the gerrymandering business. Good luck, America, fixing gerrymandering.” But it’s nonjusticiable. The court can’t touch it. And I think —

Bill Moyers: Let me interrupt you there and ask you why do you think the conservatives on the court refuse to kill partisan gerrymandering?

Dahlia Lithwick: Well, I think that for a very, very long time — I mean, quite literally for decades — there was only one person who was going to be the arbiter of whether we were gonna find a constitutional problem with partisan gerrymandering, that was Anthony Kennedy.

And for many years there were four votes on the court that said, “This is not an issue, not a problem.” Four votes on the court that said, “This is an urgent matter. We need to do away with partisan— this is political partisan gerrymandering.”

But I think that we waited and waited for Anthony Kennedy, who kept saying, “One day, my prince will come. A case will come along, and I will find a justiciable standard for what I think is unconstitutional partisan gerrymander.” And he left the court. He left the court and was replaced with Brett Kavanaugh.

So unfortunately the answer to so many of your questions are going to be because there are five now. It’s not the court this term is hearing an abortion case that is the carbon copy of a case they heard in 2016. There is no constitutional answer to that except there are five now.

And this is the same court that doesn’t have a problem with voter purges— unbelievably problematic purges of the voter rolls. And the court’s out of that business, too.

So the cynic in me thinks that the answer to your question is this is a court that is a minority-majority court. Four of the justices were appointed by presidents who did not get the majority of the popular vote. It is confirmed by a minority-majority Senate, that because of malapportionment does not reflect the composition of the electorate.

And so I think we have a minority-majority court bolstered by a minority-majority Senate doing away with free and fair voting. I think it’s as simple as that. And whether that self-interest is to continue to sort of retrench and to amass power to a minority of the country — it seems a cynical answer, but I don’t know that there’s a better one.

Bill Moyers: I saw your recent Slate piece written with Mark Stern about the criticism of the court by a district judge named Lynn Adelman. His piece is being published this week in the Harvard Law and Policy Review. And man, is he tough on the five conservative justices, led by John Roberts. He says bluntly that they are “participating in undermining American democracy.” And you seem to agree with that.

Dahlia Lithwick: This goes back to your very first question, Bill, when you asked about the rule of law and lawyers. And if you had told me five years ago that I would be writing approvingly of a judge who more or less took a brickbat to — to the Roberts Court — I couldn’t have supported it because I am such a long-time institutionalist and I worry so profoundly about attacks on the judiciary.

I really do believe that the judiciary is one of the last remaining protections that we have in a world — the nihilist world that you described earlier. And so, the fact that Judge Adelman wrote that piece essentially saying, “I can’t sit quietly anymore. I’m a sitting judge, and I can’t stand by and pretend that the Roberts Court is a legitimate court.”

A few days after we published that piece, I published a piece with another former judge, James Dannenberg in Hawaii, a state judge who retired from the Supreme Court bar last week with a similarly just absolutely scorching letter to John Roberts about what the Court has become.

And, I published it in part because, like Judge Adelman, Judge Dannenberg is essentially saying, “This is a court that has a thumb on the scale for the wealthy. It has a thumb on the scale for white privileged men. And it is breaking America.”

And for me as a 20-year court watcher and somebody who has really been acutely aware my whole career of how tenuous the court’s power is, this is from the Federalist Papers: It has neither the purse nor the sword. It has no authority.

The American people can walk away and say, “We just don’t accept the legitimacy of the court,” and that’s it for the court. And I’m so solicitous of that. And so attacks on the Court pain me. And yet at the same time, for all the reasons you’ve just described and I have just described, the Roberts Court is not functioning as a Court that looks out for equal justice for all, the words that are emblazoned on the building, [that] looks out for the rights of the most vulnerable Americans.

The Court seems to be rubber stamping not just a sort of big business agenda, not just an anti-LGBT, anti-women, anti-worker agenda. But more and more, we’re seeing the court rubber stamping the Trump agenda.

And no less a person than Sonia Sotomayor wrote an absolutely blistering dissent, saying just that, that the court is just rubber stamping whatever Donald Trump wants. And so it’s a problem because one desperately wants to hold up this institution.

We cannot have rule of law if we don’t have courts. But when the courts have become corrupted, I think it’s incumbent on people like Judge Adelman and Judge Dannenberg, and even reporters like me to say, “This Court is not recognizable to me. It’s not doing anything that looks like justice.”

Bill Moyers: Let me pause for a moment to remind people if they need reminding that during his confirmation hearings John Roberts told the Senate that the role of a Supreme Court justice is a passive role, like a neutral baseball umpire who merely calls the balls and strikes.

Justice John Roberts: Judges are not politicians who can promised to do certain things in exchange for votes. I have no agenda but I do have a commitment, if I am confirmed I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench and I will decide every case based on the record according to the rule of law without fear or favor to the best of my ability and I will remember it’s my job to call balls and strikes and not to pitch or bat.

Bill Moyers: Would you say that’s what he’s done?

Dahlia Lithwick: It was such a brilliant metaphor. It persuaded everybody watching that as an aspirational matter that’s what we want our judges to do. We just want them to call balls and strikes. And it almost doesn’t matter that you and I know that umpires do more than call balls and strikes. They set the strike zone.

They are the most powerful person in the game. There’s no such thing as neutral balls and strikes. There is always judgment affixed to that. And so I think he won the metaphor, and I think he won a lot of confidence and public respect and regard for this idea of a humble minimalist judge who does nothing but sits back and calls ’em like he sees ’em.

And at the same time, I think he has been absolutely part and parcel of a conservative revanchist return to pre-New Deal ideas about the courts, and the wealthy, and the Constitution, and the power of the president. And so he’s certainly free to call it humble minimalism when he does it, but you are seeing a Supreme Court at this moment that is willy-nilly reversing precedent.

We’ve seen several important precedents reversed in the last few years. We’re seeing a Supreme Court that is happy to reach far beyond the constructs of what neutral originalism — all the principles that conservatives are supposed to apply when it comes to doing away with something like the Voting Rights Act.

So this is not calling balls and strikes. This is, I hate to say it, but activism. It’s the word that the sort of legal right used to tar the legal left with. It is activism if you do it on the right or the left, if you’re reaching out way beyond the scope of what you should be doing as a judge.

And we’ve seen that time and time again this term. And, as I said, Bill Barr’s Justice Department has really played a part in this by helping to pushing cases, leapfrogging them to the Supreme Court before they’re heard in intermediate courts, insisting that things are exigent and urgent and need to be decided immediately. So I think that both the kind of five conservative justices (including John Roberts) and Bill Barr’s DOJ have had a huge role in creating a very activist Supreme Court that time and time again, has done anything but balls and strikes.

Bill Moyers: Which brings me back to the letter from the retired district judge in Hawaii who recently wrote Chief Justice Roberts. He actually said to the chief justice that, “You’re allowing the court to become an ‘errand boy’ for an administration that has little respect for the rule of law.”

That seems to me frankly as a journalistic observer to apply both to John Roberts and to William Barr. The judge even accused the conservative majority of cynically undermining the basic freedoms by hypocritically weaponizing free speech and religious liberty.

And he ended up saying, to a point you made, “There is nothing conservative about this trend. This is radical legal activism at its worst.” Pretty brutal language between the judges is taking place now. Clarence Thomas accused a lower court judge of being a conspiracy theorist and a partisan hack.

And then you have letters like this, in which the Hawaiian judge says, “I believe that the court majority under your leadership has become little more than a result-oriented extension of the right wing of the Republican Party.” And my response to that, Dahlia, is just wow. Wow.

Dahlia Lithwick: There was a time when people drove around with bumper stickers that said, “Impeach Earl Warren.” And that wasn’t so long ago. I mean, I’m sure some of your listeners don’t remember. But it wasn’t that long ago.

And each of the justices, whether it’s Justice Breyer, Justice Kagan, Sotomayor, Justice Kennedy, Justice Scalia talked so passionately about how terrifying that is, how terrifying it is when the public loses confidence in the court. And, not to make much of a fuss about it, but this is the longest-standing constitutional democracy for a reason.

And part of that reason is that Americans look upon their court as something kind of oracular and something almost holy. And the court relies on that trust. I mean, this is a two-way street. If the court loses public confidence and public trust there’s a famous story about the Trail of Tears case where the president famously said, “The chief justice has issued his decision. Now, let him enforce it.”

There was a time when the court had no public confidence, no public authority. And the court would make decisions, and presidents would ignore them. And that, again, wasn’t that long ago. And so this is a hard-fought, centuries-long battle to have an institution that cannot protect itself.

If Congress wanted to shut the lights and take out the toilets in the Supreme Court, they could. And the court is so, so aware of that. And so when judges like Judge Dannenberg, like Sonia Sotomayor start going after other judges, and when Clarence Thomas goes after Jesse Furman in the Census case and accuses him of being a conspiracy theorist.

It is absolutely watching this creature eat itself alive. It is a creature that relies on public trust, that is devouring that trust. I hope you’re hearing the sadness and reluctance in my voice when I say without courts, we don’t do well in this country.

If we don’t have robust judicial protection of the guardrails of rule of law, it’s just words. And so watching the court kind of corrupting itself to the point that other judges are taking out a hatchet and publicly flaying the court, it hurts everyone. It really hurts all of us who believe that the rule of law needs to be enforced by an independent judiciary. And that’s sort of the heartbreak here, is that this doesn’t redound to anyone’s benefit.

Bill Moyers: Is there a double standard at work here? I mean, I tremble when I hear liberal judges say harsh things about their peers. But the record would show that conservative judges have gotten away with some brutal language about liberals and the right-wing media have cheered them on.

But when liberal justices do the same thing about conservatives, they’re put down and condemned by the same right-wing media. So delegitimizing the opposition, for example, when judges rule against Trump to say they’re biased and when conservative judges do it that they’re standing proud for their principles. Is there a double standard at work here?

Dahlia Lithwick: Yeah, I think you probably just hit on the existential problem of our time because it transcends judges, right? It goes to the Justice Department. It goes to what do we do about the military? What do we do about these amazing State Department heroes like Alexander Vindman, who come forward?

If a Fiona Hill comes forward or an Alexander Vindman, they are clobbered as being part of the deep state and they’re not patriots. And there isn’t the commensurate sort of outrage on the other side.

And I think you’re very right when you point out that Donald Trump over the last few years has happily said that one judge on the 9th Circuit was a quote/unquote “Obama judge.” You’ll remember he started his presidency by going after Judge Curiel as a “Mexican judge” who was too biased to sit fairly on the Trump University lawsuit.

In the last few weeks he’s gone after Justices Sotomayor and Justice Ginsburg. I mean, he does this regularly. And we have silence. Silence across the boards.

And then, you’re quite right. If a judge like Adelman or Dannenberg comes forward and says “This is wrong. This is not a justice system I recognize,” they are absolutely pilloried from all sides for delegitimizing the institution. And so I think that it’s the same asymmetry that has in so many contexts gotten us into this situation and in so many contexts.

It’s hard to say candidly that the answer is, “We should beat up on that side more. We should go after Clarence Thomas more.” That can’t be the right answer. But descriptively, I completely concede that one side sticks its neck out and sort of—recedes without any support.

The other side, it’s just a daily onslaught — attacking liberal judges and liberal decisions. And I guess it’s cold comfort, but I will say at least in a judicial context this asymmetry has been going on for decades. I mean, there has always been a very, very concerted machinery to take out any progressive judge or legal thinker who is at all controversial. And there’s just no commensurate organization or force or ideology, going the other way.

Bill Moyers: Dahlia, conservatives have long understood that elections every two and four years are as much about the courts as about the legislature and the executive branch. And they’ve made the appointment of judges, well, quite frankly perhaps the chief issue in their campaigns. That’s been a pretty smart strategy, hasn’t it?

Dahlia Lithwick: I’m glad you asked about this, because since the Meese revolution, there has been a concerted effort—

Bill Moyers: Ed Meese was the attorney general, for Ronald Reagan.

Dahlia Lithwick: This is a decades-long, very organized, very focused, very well-funded effort to win the courts and with an understanding that if you control the courts, almost nothing else mattered.

And what we’ve seen, if I can go back to the 2016 election, we went into that election with one vacancy. Antonin Scalia had died the February before the election. Mitch McConnell had held up the Merrick Garland confirmation, and so there was a vacancy on the court.

There was an 83-year-old, an 80-year-old, and a 79-year-old on the court that year. And with no disrespect intended to octogenarians, it might have been a good time for progressives to look at the court and say, “Holy cow. This is the most important issue going into this election.”

Donald Trump campaigned on the fact that he was going to change the court, only appoint people who would overturn Roe. There were people like Ted Cruz and John McCain who went into that election in November of 2016 pledging in their Senate races that if Hillary Clinton won in 2016 they would hold the Scalia seat open for four more years or eight more years. No one was going to be seated on their watch.

And on the other side, we had Democrats running for the Senate who had had a seat stolen under their noses and said nothing in their Senate races. And by a two-to-one margin, voters who prioritized the Supreme Court broke for Donald Trump. So that was entirely — sort of choice that voters made in 2016 that whatever their issues were, the court was not amongst them.

And as a consequence, we saw not just the two Supreme Court seats that Donald Trump has been able to fill with Gorsuch and with Kavanaugh. But we’ve now seen 191 federal judges seated in three years. That outpaces Obama’s record for seating judges in eight years. It is unprecedented for anybody to pack the courts the way Donald Trump has done it. And it is for exactly the reason you started with. It is because, for whatever reason, conservatives laser focus on the courts and progressives rank it number eight, nine, 10, or 11 in their priorities.

Bill Moyers: Dahlia, I’m only halfway through my questions. A couple of years ago, I had the good fortune to hear you make a remarkable speech on religion and the courts at Chautauqua, the summer institute in Upstate New York. And I wonder if you’d come back in a few days and let’s have a second episode of this discussion to talk about faith, politics, and the court, William Barr, and freedom of religion. Would you do that in a few days?...

https://www.alternet.org/2020/03/federal-judge-calls-out-right-wing-bias-and-accuses-chief-justice-roberts-of-undermining-american-democracy

no lnx

Federal judge calls out right-wing bias — and accuses Chief Justice Roberts of ‘undermining American democracy’

Written by Alex Henderson March 11, 2020

In the right-wing media, the term “activist judges” is often used to criticize judges who make decisions that the far right doesn’t like — although far-right pundits never use that term to criticize judges who make decisions that are favorable to large corporations or anti-abortion groups. Even some progressive judges are afraid of being accused of liberal bias, butU.S. District Court Judge Lynn Adelman obviously isn’t one of them. In an article for the Harvard Law Review, Adelman calls out right-wing biases in the judiciary — and one of Adelman’s targets is U.S. Supreme Court Justice John Roberts.

“The Court’s hard-right majority is actively participating in undermining American democracy,” Adelman asserts in the Harvard Law Review. “Indeed, the Roberts Court has contributed to insuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.”

In the article, Adelman slams the High Court’s right wing for striking down part of the Voting Rights Act and for being hostile to unions and favorable to large corporations. And the judge notes how the Supreme Court, in 2020, is so much more right-leaning than it was in the days of the late Chief Justice Earl Warren.

Nominated by President Dwight D. Eisenhower, Warren was a Republican. But many of his rulings did a lot to advance the cause of liberalism in the United States, and the Christian Right has been vehemently critical of him.

Adelman notes that in recent years, the Supreme Court’s right-wing justices have done a lot to undermine the progressive rulings that the Warren Court made in the 1950s and 1960s.

“Democracy is inherently fragile, and it is even more so when government eschews policies that benefit all classes of Americans,” Adelman asserts. “We desperately need public officials who will work to revitalize our democratic republic. Unfortunately, the conservative justices on the Roberts Court are not among them.”

Adelman’s article has received a rave review from journalists Dahlia Lithwick and Mark Joseph Stern. In a March 10 article for Slate, they applaud Adelman for a “willingness to really go for broke in criticizing conservative bias in the judiciary.” And the Slate journalists note the double standards that exist among far-right pundits.

“When Justice Clarence Thomas just last year used a dissent to attack the integrity of a sitting federal judge in the census case,” Lithwick and Stern write, “it was mere clever wordsmithing. But when Justice Sonia Sotomayor suggests, as she did recently, that the conservative wing of the High Court seems to be privileging the Trump Administration’s emergency petitions, she is labeled — by the president himself — unfit to judge. It’s such a long-standing trick, and it’s so well supported by the conservative outrage machine.”

But Adelman, the Slate journalists stress, refuses to be manipulated by that “conservative outrage machine.” And they love the fact that Adelman outlines how far the High Court has moved since its Earl Warren era.

“The article ultimately portrays the slow movement of the Supreme Court to the right — and then the far right — through a long line of cases that reversed the Warren Court’s protections for minority groups and poor and working-class Americans,” Lithwick and Stern explain. “It shows how the Court has undermined unions and boosted corporate interests.”

trump goes after soto and rbg? roberts sez nothing, then schumer ~ bret and gorsuch

https://www.exposedbycmd.org/2020/02/10/fox-henhouse-koch-backed-opponent-consumer-financial-protection-bureau

Conservative Foundations Finance Push to Kill the CFPB

by Alex Kotch | February 13th, 2020

Right-wing funders have given nearly $69 million to 11 groups that submitted Supreme Court amicus briefs in support of eliminating the Consumer Financial ProtectionBoard, a key reform enacted in the wake of the Great Recession.

https://www.exposedbycmd.org/2020/02/13/conservative-foundations-finance-push-kill-cfpb/

fox in the Henhouse: Koch-Backed Opponent of Consumer Financial Protection Bureau Chairs Taskforce to Evaluate Its Regulations

by David Armiak | February 10th, 2020

The Koch anti-regulatory political network has given $63.6 million to groups that taskforce chair Todd Zywicki has held senior level positions in since 2008.

Sotomayor writes a devastating rebuke of her conservative colleagues’ callousness and fealty to Trump

Justice Sonia Sotomayor wrote a devastating conclusion to a dissenting…

an 220

Nancy LeTourneau / Washington Monthly February 25, 2020

You might be wondering why Trump decided to go on the attack against Supreme Court Justice Sonia Sotomayor this week.

To understand why Sotomayor has suddenly become a target, it is helpful to talk about the way that this administration is changing how presidential policies are being handled in the courts.

One of the reasons Senate Majority Leader Mitch McConnell is so committed to stacking the courts with extremist conservative judges is that, as I pointed out last week, the Trump administration’s incompetence has led to an abysmal record in the courts. Whereas previous administrations prevailed in the courts 80 percent of the time, this president has failed in over 90 percent of the cases his administration has argued.

What this often means is that lower courts issue injunctions against the implementation of the administration’s policies while the case works its way through the courts. Attorney General William Barr complained about that practice in his speech to the Federalist Society.

First used in 1963, and sparely since then until recently, these court orders enjoin enforcement of a policy not just against the parties to a case, but against everyone. Since President Trump took office, district courts have issued over 40 nationwide injunctions against the government. By comparison, during President Obama’s first two years, district courts issued a total of two nationwide injunctions against the government…

It is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts. No other President has been subjected to such sustained efforts to debilitate his policy agenda.

Of course, Barr didn’t mention that those major policies have been frozen by the lower courts because the Trump administration failed to make a coherent case in support of them, so the courts have temporarily halted their implementation. As an example, this is what Coral Davenport wrote about their efforts to roll back Obama’s fuel efficiency standards.

In January, administration staff members appointed by President Trump sent a draft of the scaled-back fuel economy standards to the White House, but six people familiar with the documents described them as “Swiss cheese,” sprinkled with glaring numerical and spelling errors (such as “Massachusettes”), with 111 sections marked “text forthcoming.”

The cost-benefit analysis showed that consumers would lose more money than they would gain. And, because the new auto pollution rule lacks the detailed technical analyses required by law, the regulations would be unlikely to withstand court challenges…

More basic issues holding up the regulations point to another problem: the skeleton crew of inexperienced political appointees who are heading the drafting process may not be up to a job that would usually be handled by career federal workers with decades of expertise.

The Trump administration’s response to these failures has been to go directly to the Supreme Court and ask them to expedite emergency relief from the injunctions of the lower courts.

Professor Steve Vladeck, a CNN contributor who has studied the issue of emergency requests, noted in a recent piece for the Harvard Law Review that Solicitor General Noel Francisco has been more aggressive in seeking to “short-circuit” the ordinary course of appellate litigation than his immediate predecessors.

In an interview, Vladeck noted that Francisco has not always prevailed, “but he has done so far more often than his predecessors.”

“This is now the 24th time that the Trump administration has asked the Supreme Court to put a lower court decision on hold in less than three years compared to a total of eight such requests during the 16 years of the George W. Bush and Obama administration’s combined,” Vladeck said.

That is precisely what sparked Justice Sotomayor’s critique against the conservative justices on the Supreme Court, who have consistently been willing to grant that relief to the Trump administration.

The justice wrote that granting emergency applications often upends “the normal appellate process” while “putting a thumb on the scale in favor of the party that won.” Targeting her conservative colleagues, she said “most troublingly, the Court’s recent behavior” has benefited “one litigant over all others.”…

“Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases,” Sotomayor said. “It is hard to say what is more troubling,” she said, pointing to the case at hand, “that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.” She noted that in the case at hand, the lower court order that the Supreme Court lifted was narrow and only impacted one state.

That is what has placed Sotomayor’s name in the news. I seriously doubt, however, that Trump understands or cares about these legal maneuverings, which is why he couldn’t articulate his objections to Sotomayor during a news conference in India today.

The reason Trump is on the attack against liberal Supreme Court justices probably has more to do with a case that is being made against Justice Clarence Thomas. As we’ve seen, the president is in the midst of a purge of federal employees who don’t demonstrate enough loyalty to him. Jonathan Swan reported that Ginni Thomas—the wife of Clarence Thomas—has been deeply involved in lobbying on behalf of a purge, providing the administration with lists of who needs to go as well as potential replacements.

In response, there have been calls for Thomas to recuse himself on matters related to Trump and his administration. Trump’s call for Sotomayor and Ginsberg to recuse themselves is not only a way to further politicize the Supreme Court; it also provides his media enablers with a distraction from the issues surrounding Thomas and the ability to pretend that both sides do it.

As I’ve been suggesting for a while now, the Supreme Court is scheduled to issue rulings in several explosive cases prior to the November election. One of them has to do with whether or not Trump will be required to release his tax returns. From everything we’ve seen, that is the hill that this president is prepared to defend at all costs. And according to CNN, the latest dissent issued by Sotomayor could indicate that tensions are rising as the justices consider these major cases.

The justices are behind schedule in releasing opinions, and court watchers have questioned if the delay is caused in part by Chief Justice John Roberts’ required participation in the impeachment proceedings, or if the justices themselves are fractured over a number of cases. Although Sotomayor wrote alone, her opinion suggests unease behind the scenes.

All of this is probably just the opening salvo in what promises to be a very contentious season for the Supreme Court.

Supreme Court allows public charge clause that kept Nazi-era refugees from the US

The Conversation

During the Nazi era, roughly 300,000 additional Jewish refugees could have gained entry to the U.S. without exceeding the nation’s existing quotas. The primary mechanism that kept them out: the…

an 120

https://www.alternet.org/2020/01/supreme-court-allows-trumps-shameful-public-charge-rule-to-take-effect/

===

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.

===

someone said case pushed down to prevent scotus in 2020 election

https://www.alternet.org/2019/12/the-warped-and-twisted-logic-republicans-are-trying-to-use-to-rip-health-care-away-from-millions/

no lnx

The warped and twisted logic Republicans are trying to use to rip health care away from millions

Written by Cody Fenwick December 19, 2019

To understand the stakes and debates around the current fight to tear down the Affordable Care Act — otherwise known as Obamacare — you must be able to wrap your head around the twisted the logic that Republicans are using in court.

At the center of the legal battle is the infamous “individual mandate,” the piece of Obamacare that required Americans to purchase health insurance. Advocates for the law backed this provision because of a collective action problem. They feared that without the mandate, too many people would opt to go without health insurance and make the system worse for everyone.

Some claimed this provision was unconstitutional. But in the Supreme Court case National Federation of Independent Business v. Sebelius, Chief Justice John Roberts concluded in an opinion for the majority that the mandate was a permissible application of Congress’ taxing power. If you didn’t get insurance under Obamacare, you had to pay several hundred dollars extra in your taxes — that’s how the mandate was enforced. Roberts decided this was legitimate.

If the question has been settled by the Supreme Court, why is it back at the center of a new lawsuit? That’s where things get really warped.

In 2017, the Republican-led Congress was unable to get the votes to repeal either all of Obamacare or the mandate itself. However, because of technical rules in the Senate, they were able to set the penalty for not complying with the mandate to zero. On Roberts’ understanding of the mandate, it has been effectively repealed. If the federal government passed a lot setting all income taxes to zero, no one would argue that there was a still an income tax.

Legal scholar Eric Segall, a professor at Georgia State University, told me simply that the 2017 change “makes the Constitutionality of the mandate/tax irrelevant. Since that Congress didn’t repeal the rest of [Obamacare], neither should the Court.”

But Republicans argue the opposite. They say that since the law still requires Americans to buy insurance without a penalty, it can no longer be considered a tax. Therefore, to their minds, since it can no longer be upheld as constitutional under Congress’s taxing power, and it should be struck down.

It gets even worse and more bizarre.

The Republican state attorneys general who brought the case, as well as the Justice Department, have argued that the mandate should be struck down — and the rest of the Obamacare should fall with it. Judge Reed O’Connor, a federal judge in Texas, agreed and did just that, sending the case to the Fifth Circuit. His ruling stunned even many conservative legal commentators.

Obamacare is a vast and complex law, and knocking it down would be monumentally disruptive. Tens of millions of people get their health care through its provisions — largely through its expansion of Medicaid and through the private health insurance marketplaces the law set up. Knock down the law, and many people could find themselves without coverage. Even for those who retain coverage, the consequences to the change in the law would be unpredictable, because there’s no telling how insurers would react to the shift.

On Wednesday, the Fifth Circuit upheld O’Connor’s finding that the mandate is unconstitutional — but it sent the case back to him to re-examine the question about whether the mandate could be “severed” from the rest of Obamacare. If he determined that the mandate could be severed, he would be able to strike the mandate from the books, but it would have few if any practical implications.

Nicholas Bagley, a law professor at the University of Michigan, warned that observers shouldn’t be reassured by the court’s new ruling.

“Yes, the court remanded without deciding how much of the ACA had to go. Yes, the court said it’s possible that the mandate could be fully severed,” he said in a tweet. “But don’t buy it. The writing is on the wall.”

He continued: “The court could easily have said that the mandate is fully severable, if it thought it was. But it didn’t. The court could have announced that only community rating and guaranteed issue have to go. But it didn’t.”

His conclusion? The circuit court is “perfectly OK if Judge O’Connor strikes down the most significant parts of the ACA.”

Of course, if that happens, the Supreme Court will almost certainly take up the case eventually. There’s one benefit for Republicans, though, of the case being sent back down to the O’Connor. It stretches out the timetable for coming to a resolution. That may mean the final decision isn’t made — and the disruption of the health care markets doesn’t emerge — until after the 2020 election. If, for example, the Supreme Court were to knock down all of the ACA in the summer of 2020, it would likely be a devastating blow to President Donald Trump’s re-election campaign. The disruption in health are would almost certainly be blamed on Republicans. If the decision can be put off, Trump stands a better chance of retaining power.

It’s not certain, though, that even if the circuit court and O’Connor decide to strike down much of the law that the Supreme Court will concur. While four of the conservatives on the high court might be inclined to gut Obamacare, Roberts has repeatedly been willing to save it before. It would be surprising, then, if he took this opportunity to throw the law out, especially when such a ruling would be in obvious tension with his previous conclusions about the validity of the mandate. And the justification needed to strike down the rest of Obamacare requires some additional and extreme mental gymnastics.

But this is, in many ways, the conservative vision. The reason they care so much about stacking the courts with conservative judges and justices is so they can knock down laws that Republicans hate, even if they’re popular with voters. And it’s even better if, as may be happening now, they can time the most significant rulings to avoid an extreme electoral backlash for the GOP.

===

Supreme Court Lets Stand Ruling Protecting Homeless People

1219 dn

Supreme Court has upheld protections for people who sleep or camp outdoors, after refusing to hear a case over whether cities could criminalize homelessness. The Supreme Court’s refusal to hear the case leaves in place an appeals court ruling that says the Constitution does not allow cities to prosecute people for sleeping or camping outside unless the city provides shelter for every single unhoused person in their jurisdiction. The legal decision comes as soaring rents and deepening economic inequality have led homelessness rates to soar in some U.S. cities. Click here to see our full report on the homelessness crisis in San Francisco, California.

===

RBG not well; garland nyt headline pulled

DACA

forced sonogram, must view

Supreme Court’s newest move on abortion approves torture for pregnant people Common Dreams

Supreme Court to Hear First Major Gun Case in Nearly a Decade

https://www.alternet.org/2019/11/radio-host-thom-hartmann-explains-how-we-could-slide-into-straight-fascism-in-the-next-year

...one one thing that causes me to think that we might not — and which is the subject of my new book “The Hidden History of the Supreme Court and the Betrayal of America” — is how the United States Supreme Court has basically betrayed our country. The definition of a democracy is where the people vote for what they want and then they get that through the government. That has not been the case since 1981.

Whether it’s the social safety net, protecting the environment, decreasing our military activity abroad, making policing more humane, recognizing civil rights, encouraging voter rights, strengthening the middle class and protecting Social Security and Medicare, none of those things have happened. In fact, the opposite has happened.

How is Trumpism a symptom and not the cause of much bigger social, political, economic and other cultural problems in America? Renewing the country’s democracy to prevent another fascist president is going to require deep systemic change, not just voting Donald Trump out of office.

The thing that concerns me the most is that in the United States we now have corporations and billionaires who have taken over our political system completely. Social scientists have shown that what the bottom 90% of income earners want in America is literally random noise for America’s policymakers. By comparison, what the top 10% want is consistently enacted through legislation. This means no more democracy. And then on top of that power dynamic the courts have swung to the far right and are hard corporatist.....

https://www.alternet.org/2019/11/trump-asks-the-supreme-court-to-save-him-from-a-criminal-investigation/

no lnx

Trump asks the Supreme Court to save him from a criminal investigation

Official White House Photo by Shealah Craighead

Written by Cody Fenwick November 14, 2019

President Donald Trump asked the Supreme Court on Thursday to block Manhattan prosecutor Cy Vance from obtaining his tax records via a grand jury subpoena as part of a criminal investigation.

This appeal is the president’s last chance to avoid handing over the materials after the United States Court of Appeals for the Second Circuit upheld the legitimacy of the subpoena. If the Supreme Court declines to take the case, Trump will be obligated to hand over his financial records and tax returns, which have been the subject of much speculation and controversy since he failed to release them during the 2016 campaign, despite his promise to do so.

But Trump’s lawyers argued that, as president, he should be immune from this requirement as part of a criminal investigation.

“For the first time in our nation’s history, a state or local prosecutor has launched a criminal investigation of the President of the United States and subjected him to coercive criminal process,” the filing said. “The subpoena issued by the New York County District Attorney seeks reams of President Trump’s private financial records for the express purpose of deciding whether to indict him for state crimes.”

The lawyers argue that the Constitution protects the president in this case. But as the filing note, this question has never arisen before and thus has never been definitively adjudicated.

Citing the famous case of Clinton v. Jones, the filing argued that the court has previously recognized the importance of questions related to presidential immunity. And yet, that very case ended in the ruling that President Bill Clinton was not immune from civil litigation brought by Paula Jones for sexual harassment.

This case deals with a separate, but clearly related, question of immunity from state-level criminal investigations. The lawyers claimed that they’re not looking for immunity specifically for Trump but for “the Presidency itself.” They warned that, if a criminal investigation is allowed against presidents, it “would empower thousands of state and local prosecutors to embroil the President in criminal proceedings.” The Constitution, they claim, must not allow this.

While there are genuinely open constitutional questions at play here, it’s hard to take arguments from the president’s side seriously at all. Because while Trump’s side is claiming he can’t be criminally investigated, his lawyers have also resisted proper requests from the House of Representatives to review his taxes — a power Congress has under clearly written law. And Special Counsel Robert Mueller argued that he couldn’t conclude the president committed a crime because of current Justice Department policy, saying only Congress could address these questions through impeachment. But as impeachment proceedings have begun in Congress, Trump and his lawyers called the process “illegitimate” and worked to obstruct the lawmakers’ work.

So no matter the question put before him, the Trump team always seems to have the same answer: No one is permitted to hold him to account.

1119

Supreme Court Clears Way for Sandy Hook Families to Sue Gun Manufacturer

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

...

10/19

https://lawandcrime.com/high-profile/supreme-court-vacates-ruling-finding-michigan-unconstitutionally-gerrymandered-congressional-districts

LaRose Ohio SoS purge voter rolls, SCOTUS ok’d june?

https://www.alternet.org/2019/08/heres-the-staggering-reality-of-mcconnells-massively-successful-effort-to-stack-federal-courts-with-conservative-judges/

no lnx

If there is any Republican who, next to President Donald Trump, Democrats would most like to see voted out office in 2020, it is Senate Majority Leader Mitch McConnell. But unfortunately for Democrats, McConnell is up for reelection in a very Republican state: Kentucky. And one of the main reasons Democrats would love to see McConnell unseated is his effect on the federal judiciary. McConnell has been stacking the federal courts with hard-right judges, and as Laura Litvan reports in Bloomberg News, he’s very good at it.

Litvan notes that when President Barack Obama was still in office, McConnell held up Obama’s court nominees and left “86 district court vacancies and 17 circuit court vacancies for Trump to fill when he took office in January 2017.” And McConnell’s most infamous move of all came in 2016, when Supreme Court Justice Antonin Scalia died and Obama nominated Judge Merrick Garland for the seat; McConnell wouldn’t even bring the nomination up for a vote in the Senate, but he did everything he could to ram through the nomination of Justice Neil Gorsuch in 2017 after Trump was sworn in as president.

One of the reasons why McConnell has been so effective in getting right-wing judges confirmed by the Senate, Litvan observes, is “a rule change under former Democratic Majority Leader Harry Reid, who unilaterally reduced the number of votes needed to advance appellate and district court nominees to 51 votes instead of 60.” And in 2017, Litvan adds, Republicans “lowered the threshold for Supreme Court nominees to 51— and in April, they cut debate time for district court judges from 30 hours to just two.”

During Obama’s eight years in office, Litvan points out, a total of 55 appellate court judges were confirmed; 43 have been confirmed under Trump thanks, in part, to McConnell. “Trump-appointed judges,” according to Litvan, “now make up almost a quarter of the 179 full-time federal appeals court slots.”

According to Russell Wheeler, a Brookings Institution scholar, McConnell has also helped to make the federal judiciary whiter. Litvan, citing data from Wheeler, notes that “fewer than half of the judges confirmed under Obama were white males” — whereas “about 70% of” Trump’s circuit court nominees have been white males.

gop hypoc AN

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 theKavanaugh 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.

Note these 2 cases undermine 2020 election, demo political partisan hacks; recall roberts goes back to brooks bros bush v gore, and scotus has been eroding camp finance since after watergate thru CU and after

also scotus on census / gerrymander

https://www.alternet.org/2019/06/supreme-court-sends-census-citizenship-case-back-to-lower-court-after-bombshell-evidence-reveals-gops-true-motives/

‘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 boundaries

dn 619

:{SCOTUS:(style="box-sizing:border-box"):}: Rules Public Access Station Not Bound by 1st Amendment

citizen q census

ca ny tex lose big time, fed funds, seats in congress

U.S. Supreme Court heard arguments Tuesday in a case challenging the Trump administration’s plans to include a citizenship question on the 2020 census. Voting rights activists fear that adding the question will deter immigrants from participating in the census and lead to a vast undercount in states with large immigrant communities. Census officials have estimated 6.5 million people will not respond to the census if the citizenship question is added. This undercount could affect everything from the redrawing of congressional maps to the allocation of federal funding.

The case centers on whether Commerce Secretary Wilbur Ross had the authority to add the question to the census. The American Civil Liberties Union and 17 states have sued, saying Ross’s move was aimed at deterring immigrants from participating in the census. During the oral arguments, the court’s conservative majority appeared to side with the Trump administration, while the liberal minority questioned the administration’s motives and methods. Liberal Justice Sonia Sotomayor said, “There’s no doubt that people will respond less. If you’re talking about prediction, this is about 100 percent that people will answer less.” We speak with Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund. MALDEF is representing plaintiffs in one of the lawsuits challenging the census citizenship question. We also speak with Ari Berman, senior writer at Mother Jones. His new piece is titled “In Census Case, Supreme Court Suddenly Cares a Lot About Voting Rights Act.”

Transcript

This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: The U.S. Supreme Court heard arguments Tuesday in a case challenging the Trump administration’s plans to include a question on citizenship to the 2020 census. Voting rights activists fear that adding the question will deter immigrants from participating in the census and lead to a vast undercount in states with large immigrant communities. Census officials have estimated 6.5 million people will not respond to the census if the citizenship question is added. This undercount could affect everything from the redrawing of congressional maps to the allocation of federal funding.

AMY GOODMAN: Chief Justice John Roberts appeared to support the addition of the citizenship question, saying it was, quote, “quite common” to add a demographics questions to the census. He asked the plaintiffs in the suit, “Do you think it wouldn’t help voting rights enforcement?” Conservative Justice Brett Kavanaugh said the United Nations recommends countries ask a citizenship question on the census, listing a number of countries that ask about citizenship, including Spain, Germany, Canada, Australia, Ireland and Mexico. After the Supreme Court heard oral arguments, New York state Attorney General Letitia James, who helped bring the lawsuit, spoke outside the court.

ATTORNEY GENERAL LETITIA JAMES: Adding that particular citizenship question could lead to the undercounting in communities across America, particularly in immigrant communities and Hispanic communities. It would mean that communities entitled to resources wouldn’t get those resources. It would deny certain communities of equal representation. And so, in the interest of fairness, in the interest of upholding this quintessential American promise, we are obligated to ensure the most accurate count in the 2020 census. And as such, we must use every tool at our disposal, in our arsenal, to fight to protect its integrity. And that’s what we did today.

AMY GOODMAN: [We go now] to Los Angeles, where we’re joined by Thomas Saenz, president and general counsel of MALDEF, the Mexican American Legal Defense and Educational Fund. MALDEF is representing plaintiffs in one of the lawsuits challenging the census citizenship question. And here in New York, we’re joined by Ari Berman, senior writer at Mother Jones, reporting fellow at The Nation Institute, author of Give Us the Ballot: The Modern Struggle for Voting Rights in America.

So, Ari, you attended the Supreme Court oral arguments yesterday. Set the scene for us. And were you surprised by the tenor of the questions?

ARI BERMAN: I did. And this really is one of the most important cases for democracy in decades, Amy, because the census determines so many things in our society: how $880 billion in federal funding is allocated, how voting districts are drawn, how many House seats, how many Electoral College votes states have. There really is nothing we do that’s more important in a democracy than the census. And this one question about U.S. citizenship has the possibility to derail the entire census. One of the most important and longest constitutional responsibilities that our government has could now be derailed and turned into a political weapon by the Trump administration to target immigrants and places where lots of immigrants live.

And so, I was hoping I would hear these big-picture debates in the Supreme Court about the importance of the census and how this question threatens the census. Instead, the conservative justices on the court seemed very sympathetic to this question. They really didn’t question the motives of Wilbur Ross, the commerce secretary, who added this question, even though three different federal courts have struck it down. Six years ago, I was in the Supreme Court when they railed against the Voting Rights Act, called it an act of regional discrimination against the South. And then, suddenly, six years later, the same conservative justices that gutted the Voting Rights Act suddenly believe that this citizenship question is now necessary to enforce the Voting Rights Act, which every voting rights lawyer will tell you it’s not. And so, once again, we have a situation where the Supreme Court seems like they are about to side with folks that want to gut voting rights, roll back civil rights, target immigrant communities, as opposed to protecting one of the most important constitutional responsibilities that we have.

...

===

==https://www.alternet.org/2019/04/as-supreme-courts-right-wing-justices-indicate-theyll-side-with-trump-opponents-denounce-bald-faced-attempt-to-racially-rig-us-census/

Civil rights advocates decried the Trump administration’s attack on immigrant rights and marginalized communities Tuesday as the Supreme Court heard arguments regarding the potential addition of a citizenship question to the 2020 census.

The nation’s highest court began deliberating Commerce vs. New York, hearing from a number of rights groups who oppose Commerce Secretary Wilbur Ross’s effort to add the question, “Is this person a citizen of the United States?” to the 10-year survey of all U.S. residents.

The court’s more liberal judges and a number of critics argued that the question would result in an inaccurate count of U.S. residents, with many in immigrant communities declining to respond for fear of the Trump administration’s aggressive anti-immigration agenda.

“This case isn’t just about a line on a form,” said Dale Ho, director of the ACLU’s Voting Rights Project, after addressing the court. “It’s about whether or not everyone in America counts. The administration’s own estimate is that if you put this question on the census, 6.5 million people won’t get counted.”

That’s a wrap! We just argued before the Supreme Court for a 2020 census that counts all communities. pic.twitter.com/KQFehKAUYd

— ACLU (@ACLU) April 23, 2019

“There’s no doubt that people will respond less,” Justice Sonia Sotomayor said during the hearing. “If you’re talking about prediction, this is about 100 percent that people will answer less.”

Three federal judges have blocked the addition of the question, which has not appeared on a U.S. census since 1950.

Ross broke federal law when he moved to add the question, Judge Jesse Furman argued in his January ruling in the Southern District of New York. The commerce secretary claimed the question had been requested by the Justice Department in order to ensure proper enforcement of the Voting Rights Act. Ross had in fact asked the DOJ to make the request, Furman said.

“There needs to be a reason to add the question, and I don’t see any reason,” Justice Elena Kagan said Tuesday. “It did seem the secretary was shopping for a need.”

The Trump administration argues that the citizenship question is needed to ensure proper enforcement of the Voting Rights Act—an argument Justices John Roberts and Brett Kavanaugh reportedly appeared prepared to accept on Tuesday.

Author and voting rights advocate Ari Berman denounced the claim as a “complete farce.”

“Trump DOJ hasn’t filed [a] single lawsuit to enforce [the Voting Rights Act] and has strongly supported GOP efforts to make it harder to vote,” Berman tweeted.

It’s complete farce Trump admin argues citizenship question on 2020 census needed to enforce Voting Rights Act. Trump DOJ hasn’t filed single lawsuit to enforce VRA & has strongly supported GOP efforts to make it harder to vote https://t.co/BgMmbghZu6

— Ari Berman (@AriBerman) April 23, 2019

In addition to concerns about why and how Ross attempted to add the question, civil rights groups say the citizenship question would have grave implications for marginalized communities beyond 2020. The 10-year survey of all residents in the U.S. is used to determine how many representatives states have in the U.S. House, as well as appropriations of federal funding for local governments.

“The decisions about where to build hospitals, schools, roads, and add new businesses are linked to the decennial count of the population,” said the New York Immigration Coalition in a statement. “The distribution of more than $700 billion in federal resources is also tied to the census.”

“The facts are clear: the census is simply an enumeration of residents, as constitutionally mandated,” said Steven Choi, executive director of the New York Immigration Coalition. “Adding the citizenship question will have an especially chilling effect on communities of color, depriving immigrant-rich states of federal dollars and political representation, while virtually erasing our communities.”

Common Cause, Planned Parenthood, and Make the Road New York were among the groups who assembled outside the Supreme Court to call on the justices to reject the addition of the question.... ==

dissent? Alito maj

https://www.latimes.com/politics/la-na-pol-supreme-court-crimes-immigrants-legal-trump-20190319-story.html

divided Supreme Court on Tuesday bolstered the Trump administration’s power to arrest and indefinitely jail legal immigrants who committed past crimes that could trigger deportation, including those who completed their sentences years ago or were convicted of minor drug offenses.

The court’s five conservatives pointed to a “mandatory detention” rule in a 1996 immigration law that said federal agents “shall take into custody” immigrants who have been convicted of certain crimes that would lead to deportation.

Tuesday’s high court decision is the third in the last two years that strengthens Trump’s authority under the immigration laws. While the ruling interprets a 1996 law, it takes on added significance because the administration has been more aggressive in arresting and jailing immigrants.

The justices in the majority said Congress feared it would be “too risky” to let terrorists or dangerous criminals go free while deportation was pending. But their opinion conceded the law is so broad it also sweeps in nonviolent “drug offenders and tax cheats.”

The 9th Circuit Court of Appeals, acting on an American Civil Liberties Union class-action suit in California, ruled in 2016 that these immigrants were not subject to mandatory detention if they were not “promptly” taken into custody after their release from a local jail or state prison. This spared those who had lived and worked legally in California, some for over a decade.

But Justice Samuel A. Alito Jr., speaking for the 5-4 majority, called this argument “hard to swallow” since local officials in so-called sanctuary cities do not alert federal agents when an immigrant is released.

In the case, Nielsen vs. Preap, he said the law calls for mandatory detention of the immigrants without exception and regardless of when they are taken into custody.

Last June, a 5-4 majority upheld the travel banand said the president could deny entry to immigrants and visitors from several Muslim-majority nations. A few months earlier, the court ruled the government could hold immigrants for months or years without offering them a bail hearing. That decision, in Jennings vs. Rodriquez,was an offshoot of the case decided Tuesday.

Justice Stephen G. Breyer, speaking for the court’s four liberals, read his dissent in the courtroom. “The greater importance of the case lies in the power that the majority’s interpretation grants to the government. It is a power to detain persons who committed a minor crime many years before,” he said. “And it is a power to hold those persons, perhaps for many months, without any opportunity to obtain bail.”

He said the Constitution gave all people the right to a hearing if they were held by the government. “I would have thought that Congress intended to adhere to these values and did not intend to allow the government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing,” Breyer said. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan agreed.

Joining Alito in the majority were Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch and Brett M. Kavanaugh. In a separate opinion, Thomas and Gorsuch said they would have thrown out the suit on the grounds the courts have no authority to review class-action suits challenging immigration enforcement.

ACLU Deputy Legal Director Cecillia Wang, who argued the case, criticized the ruling. “For two terms in a row now, the Supreme Court has endorsed the most extreme interpretation of immigration detention statutes,” she said, “allowing mass incarceration of people without any hearing, simply because they are defending themselves against a deportation charge. We will continue to fight the gross overuse of detention in the immigration system.”

Eduardo Padilla, one of the named plaintiffs, came to the United States in 1966 as an infant and became a lawful permanent resident in the Sacramento area. He has five children and six grandchildren, all of whom are U.S. citizens. Padilla had two convictions for drug possession, in 1997 and 1999, and served 90 days in jail in 2002 for having an unloaded pistol in a shed.

In 2013, federal agents rearrested him over those crimes and held him for deportation. But he went free after the 9th Circuit ruled the “mandatory detention” provision did not apply to immigrants such as Padilla. He was released on a $1,500 bond because a judge decided he did not present a danger and was not likely to flee.

2nd 5-4 ruling

a major blow for immigrant rights, the Supreme Court ruled the government can detain immigrants with past criminal records indefinitely and without due process—even decades after their convictions. The 5-4 ruling Tuesday in favor of the government centers around a 1996 law that allows immigration officials to take immigrants into custody after they are released from jail—but without specifying a time frame. The ACLU, which brought the case on behalf of immigrants affected by the law, said, “[T]he Supreme Court has endorsed the most extreme interpretation of immigration detention statutes, allowing mass incarceration of people without any hearing, simply because they are defending themselves against a deportation charge. We will continue to fight the gross overuse of detention in the immigration system.”

:{SCOTUS:(style="box-sizing:border-box"):}: Rules Gov’t Can Detain Immigrants with Criminal Records Indefinitely

https://www.alternet.org/2019/03/justice-clarence-thomas-bucks-neutrality-and-expresses-total-disdain-for-legal-precedents-report/

Now 70, Justice Clarence Thomas has become the elder statesman of the far-right “strict constructionist” or “originalist” wing of the U.S. Supreme Court.Thomas, who was nominated by the late President George H.W. Bush in 1991,has made it abundantly clearly that he believes many of the liberal and progressive Warren Court decisions of the 1950s and 1960s were wrongly decided—and journalist Adam Liptak examines the “originalist” nature of Thomas’ views in a March 4 article for the New York Times.

Liptak never actually mentions the late Chief Justice Earl Warren in his piece, but some of the rulings he examines—rulings Thomas is critical of—came from the Warren Court. For example, Liptak notes that Thomas is critical of the High Court’s 1964 ruling in New York Times v. Sullivan (which protects journalists against frivolous libel suits from politicians) as well as 1963’s Gideon v. Wainwright (which said that the 6^th Amendment to the U.S. Constitution requires the government to provide defense attorneys for people accused of serious crimes). And not surprisingly, Thomas is highly critical of the post-Warren Court 1973 ruling in Roe v. Wade, which Thomas has described as “notoriously incorrect.”

In the article, Liptak quotes some legal scholars who address Thomas’ “originalist” views, including Josh Blackman, a professor at South Texas College of Law Houston. According to Blackman, “Justice Thomas, more than any other justice, is willing to revisit and reverse old precedents that are inconsistent with the Constitution’s original meaning.”

Liptak also quotes Stephen L. Wasby, an emeritus professor of political science at the University at Albany in Upstate New York. According to Wasby, Thomas “has written more than 250 concurring or dissenting opinions seriously questioning precedents, calling for their reconsideration or suggesting that they be overruled.”

Thomas’ views on Gideon v. Wainwright are a perfect example of his “originalist” thinking. When the Warren Court handed down that decision 56 years ago, it was taking an expansive, broad-minded view of the 6^{th Amendment}. Liberal and progressive legal scholars, citing Gideon, will argue that government is obligated to provide defendants in a criminal case with first-rate public defenders—and that defendants should be represented by sharp legal minds regardless of their financial status. But Thomas, Liptak notes, “wrote that the Sixth Amendment, as understood by those who drafted and ratified it, guaranteed only the right to hire a lawyer.”

Liptak’s article examines Thomas’ views on the doctrine of “stare decisis,” which, in essence, means respect for legal precedent. Thomas, Liptak writes, doesn’t believe in the doctrine at all.

Sen. Susan Collins addressed stare decisis when she voted to confirm Justice Brett Kavanaugh to the Supreme Court. Kavanaugh, Collins has insisted, would not vote to overturn Roe v. Wadebecause he considers it “settled law” and precedent—and Collins’ critics have argued that she is delusional if she truly believes that.

To Thomas, the fact that Roe v. Wade was handed down 46 years ago is irrelevant because stare decisis is a bogus concept. Liptak quotes the late Justice Antonin Scalia as saying that Thomas “does not believe in stare decisis, period.”

Donald Trump’s presidency has been a game changer on the U.S. Supreme Court. The death of Scalia in 2016 wasn’t really a game changer, as Trump replaced a far-right social conservative with another far-right social conservative: Justice Neil Gorsuch. But by replacing libertarian Justice Anthony Kennedy with Justice Kavanaugh in 2018, Trump made the “originalist” or “strict constructionist” mindset more prominent on the Supreme Court. And as Liptak’s New York Times piece illustrates, the “originalist” view of jurisprudence—and its disdain for 1960s and 1970s precedents—is alive and well in Justice Clarence Thomas.

human const rights:

https://insideclimatenews.org/news/09012019/pennsylvania-greenhouse-gas-reduction-target-natural-gas-fracking-climate-change

In Pennsylvania, a coal-mining state where the fracking boom has also pushed natural gas production to the second highest levels in the nation, Gov. Tom Wolf is launching into his second term with a conspicuous move on climate change.

Wolf issued an executive order on Tuesday to set the state's first economy-wide targets for reducing greenhouse gas emissions.

His goal to cut greenhouse gas emissions 26 percent by 2025 compared to 2005 levels mirrors the commitment the U.S. made as part of the Paris climate agreement. And his longer-term target—an 80 percent reduction by 2050—is in line with the decarbonization that scientists have said will be needed to keep global temperatures from rising 2 degrees Celsius above pre-industrial levels.

But meeting that target is easier said than done with Republicans in control of both chambers of the legislature, as the Democratic governor pointed out.

The governor can set energy efficiency targets for state agencies, take steps to increase the number of electric cars in state fleets, and increase purchases of renewable energy, but those moves would be insufficient on their own to curb Pennsylvania's emissions.

Pennsylvania now ranks fourth in the country, behind Texas, California and Florida, in carbon emissions. Methane, a short-lived climate pollutant, is also an issue. The state is second behind Texas in natural gas production and the third-largest coal producer after Wyoming and West Virginia.

'Not Too Much, But Not Too Little'

Wolf cautioned that it was unlikely that legislative action would be forthcoming to accomplish his greenhouse gas reduction goals. He also said he did not have any regulatory actions in mind and did not want to be punitive to industry.

"What I try to make sure is that what I do is not too much, but not too little," he said. Wolf used the signing event at the Heinz History Center in Pittsburgh to hail a local utility, Peoples Natural Gas, for a commitment to cut its methane emissions in half, calling it a model for industry and government cooperation.

By setting the targets, Pennsylvania joins 16 other states that as part of the U.S. Climate Alliance have pledged to meet the U.S. climate commitment despite President Donald Trump's vow to exit the Paris accord.

States Stepping Up on Climate Policies

The announcement comes at a time when states are stepping up on a wide variety of fronts to counter Trump's moves to promote fossil fuels and end climate action.

On Tuesday, legislators in nine coastal statesannounced they would introduce legislation to try to block Trump's plan for a major expansion in offshore drilling.

Pennsylvania joined eight eastern states and Washington, D.C., late last year in committing to cut transportation emissions in the region by designing a new cap-and-trade system.

Pennsylvania Hasn't Joined RGGI

But Pennsylvania has been out of step with neighboring states when it comes to power plant emissions.

When New Jersey rejoins the Regional Greenhouse Gas Initiative (RGGI) later this year, Pennsylvania will be the only northeastern state led by a Democratic governor not to be a part of the market-based program to reduce utility emissions.

More than 60 Pennsylvania businesses, communities and faith groups in November petitioned Pennsylvania's Environmental Quality Board to initiate an economy-wide "cap-and-trade" program. Although the board rejected a similar petition before, the new effort relies on a 2017 state Supreme Court ruling that upheld a broad interpretation of the Environmental Rights Amendment in the state's constitution.

PUBLISHED UNDER:

NATURAL GAS AND FRACKING

GLOBAL CLIMATE TREATY

PARIS CLIMATE AGREEMENT

SHORT-LIVED CLIMATE POLLUTANTS

no lnx cnbc

UPDATE 2-U.S. top court rejects Exxon in climate change document dispute

Nate Raymond

Jan 7 (Reuters) - The U.S. Supreme Court on Monday cleared the way for the attorney general of Massachusetts to obtain records from Exxon Mobil Corp to probe whether the oil company for decades concealed its knowledge of the role fossil fuels play in climate change.

The justices declined to hear Exxon's appeal of a ruling by the top court in Massachusetts holding that state Attorney General Maura Healey, a Democrat, had jurisdiction to seek records to probe whether the company misled consumers and investors.

The high court's action marked the latest setback for Exxon in its efforts to halt the Massachusetts investigation and a similar one by New York's attorney general, who in October filed a lawsuit against the company.

New York's lawsuit accused Exxon of engaging in a systematic scheme to deceive investors about the impact that future climate change regulations could have on its business. Exxon has called the claims "meritless."

The Massachusetts and New York investigations were launched following 2015 news reports that Exxon's own scientists had determined that fossil fuel combustion must be reduced to mitigate the impact of climate change.

Those news reports, by InsideClimate News and the Los Angeles Times, were based on documents from the 1970s and 1980s. Exxon said the documents were not inconsistent with its public positions.

Healey in 2016 issued a civil investigative demand to Exxon seeking documents to investigate whether it had violated the state's consumer-protection law through its marketing and sale of fossil fuel products.

Exxon said that because it is incorporated in Texas and New Jersey, Healey had no basis to seek documents to conduct a Massachusetts-based investigation.

The Massachusetts Supreme Judicial Court in April held that jurisdiction existed because of Exxon's control over advertising conducted for about 300 franchise gas stations operating under the Exxon and Mobil brands in Massachusetts.

Exxon has called the Massachusetts and New York investigations politically motivated.

(Reporting by Nate Raymond and Lawrence Hurley; Editing by Will Dunham)

AN the conversation

Far from being unusual, the hurried and partisan Supreme Court confirmation process for Brett Kavanaugh mirrors several notable examples of similarly politicized confirmations in U.S. history.

Those conflicts, which ultimately placed justices on the court, yielded some of the most damaging civil rights decisions in our nation’s history.

Unlike any other branch of government, Supreme Court justices do not have to face voters at the polls. They have no term limits. Yet the high court is the final arbiter of constitutional rights and protections.

Controversial appointees who were rammed through hearings, or political careerists nominated for strategic reasons and confirmed despite scant vetting, handed down decisions that expanded slavery and rolled back civil rights.

Bad processes do not by themselves yield bad decisions. There have also been thinly vetted justices who have protected and extended civil rights, but such cases are in a minority.

Of course, all Supreme Court nominations are political because they embody the strategic priorities of the president. And the required Senate confirmation of a nominee may well be a “vapid and hollow charade,” in Justice Elena Kagan’s words, since partisan support matters over merit.

But as history shows, judicious confirmation hearings are vital to vetting a lifetime appointment that can affect citizens’ right to vote, access to courts, or the limits of presidential power.

Portrait of Supreme Court Justice Roger B. Taney by George P.A. Healy. The Collection of the Supreme Court of the United States

Bad process, bad decisions

Roger B. Taney was a partisan warrior who helped President Andrew Jackson kill the Bank of the United States by illegally draining its funds. Congress refused to confirm Taney as treasury secretary and censured Jackson.

So Jackson named Taney to the Supreme Court. The Senate refused to confirm him. The next year, after Jackson got a Democratic Senate, he renominated him, this time as chief justice. Taney was pushed hurriedly through confirmation.

The Taney Court was staunchly pro-slavery, rejecting states’ rights when Northerners asserted them to oppose slavery.

Taney’s most sweeping pro-slavery decision in Dred Scott v. Sandford in 1857 held that African-Americans “had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.” The decision ruled that Congress had no power to prohibit slavery in any U.S. territory. Dred Scott is widely considered to be one of the worst decisions ever made by the court.

A critical time

During the Civil War, Abraham Lincoln was able to replace the Taney Court with corporation-friendly Republicans like Samuel F. Miller of Iowa, whom he nominated in 1862. Lincoln’s court strategy was to appoint Republicans who would endorse presidential powers in a war to save the Union.

Like Taney, Miller had owned slaves but freed them. And he was a party loyalist. As Miller’s biographer claims, he “sought results first and then found the arguments to justify them.”

Miller’s appointment came just as Lincoln was contemplating the Emancipation Proclamation. Lincoln could have asked Miller his views on the scope of black freedom, but he never did. He never even met Miller. And with no opposition in Congress, the Senate confirmed Miller in just hours.

Miller’s appointment may have been shrewd politics but it hollowed out the Civil War’s crowning achievement, the abolition of slavery and constitutional protections for African-American citizenship, including equal protection of the laws and the right to vote.

It was Miller’s majority ruling in the 5-4 Slaughterhouse Cases in 1873 that had the effect of limiting civil rights protections for African-Americans under the 14th Amendment, which extended citizenship to African-Americans and forbade states to deny them equal protection of the laws. The ruling in effect gave states sole power over areas of citizenship not explicitly covered in the federal Constitution. That, in turn, ultimately led to the growth of racist Jim Crow laws in states.

Justice Joseph P. Bradley, appointed by Ulysses S. Grant. Supreme Court

President Ulysses Grant’s two nominees were also pushed through hastily and had an oversized impact on civil rights.

Those appointments – conservative pro-business Republican Joseph P. Bradley and political hack Morrison Waite – unwittingly undermined Grant’s own Justice Department’s civil rights enforcement.

In 1870 Grant appointed Bradley specifically to help business interests concerned about recent decisions that they believed harmed them. Bradley faced scant opposition from a majority-Republican Senate in bed with railroad and other corporate interests.

Four years later, Grant picked Waite, a crony of Grant’s Ohio friends, who had zero judicial experience. Called a “national nonentity” by a court historian, Waite’s appointment surprised everyone, including Waite. The Senate confirmed him without debate.

The unintended consequences of these two overtly political nominations became clear in U.S. v. Cruikshank, an 1876 court decision.

In April 1873, up to 150 African-Americans were murdered by whites in a conflict over two competing Louisiana governments. Among those whites was William Cruikshank.

Cruikshank and others who participated in the massacre were charged and convicted in federal court of civil rights violations under the Enforcement Act of 1870. That act made it a federal crime to violate civil rights and was passed with the intention of putting teeth in the 14th Amendment, which guaranteed equal protection of the laws and due process. The case considered by the court was an appeal of those initial convictions.

Justice Waite ruled that the 14th Amendment’s civil rights provisions, including the equal protections of the laws and right to due process, did not apply to the victims of the Colfax Massacre.

Justice Bradley concurred in the ruling, clearing Cruikshank. Indeed, Bradley declared that none of the Colfax Massacre defendants were alleged to have “committed the acts complained of with a design to deprive the injured persons of their rights on account of their race, color, or previous condition of servitude.”

Bradley and Waite’s responses constituted willful blindness to a naked act of racial terrorism. And these decisions gutted the 14th Amendment’s civil rights provisions, leading to the swift and violent rise of Jim Crow.

More damage

Bradley went on to rule in 1883 that the Civil Rights Act of 1875, which outlawed racial discrimination in public facilities, was unconstitutional. He did this at a time when blacks were being denied the right to vote, barred from businesses and murdered with impunity. Bradley tutted that with his ruling a black citizen “ceases to be the special favorite of the laws.” And the law ended protection for African-Americans from segregation in schools, theaters and even cemeteries.

It would be 74 years before Congress passed another civil rights act.

Not all justices involved in partisan nominations, or who were poorly vetted, handed down dreadful rulings.

Louis D. Brandeis’ nomination in 1916 led to a bitter partisan brawl infused with anti-Semitism. One witness at his confirmation accused him of “infidelity,” and another characterized Brandeis as “duplicitous”.

Louis Brandeis won a bitter nomination fight to the Supreme Court.Boston Journal, June 2, 1916

Yet Brandeis became one of the nation’s most renowned Supreme Court justices, standing up for free speech in Whitney v. California in 1927 and dissenting in Olmstead v. United States the next year against warrantless wiretapping.

Harold H. Burton was a surprise nomination when Democrat Harry Truman nominated the Republican senator from Ohio in 1945. The Senate dispensed with hearings and confirmed Burton without debate. But Burton defied expectations, shaping the Supreme Court’s landmark Brown v. Board of Education of Topeka (1954) ruling that desegregated schools and overturned the Jim Crow doctrine of “separate but equal.”

Back to the 19th century

More recently, contested nominations have revived the 19th-century practice of ramming through partisans whose decisions undermine civil rights.

The 1991 Clarence Thomas nomination evokes that legacy. With a thin resume, partisan credentials, and his nomination hastily pushed through by George H. W. Bush’s administration, Thomas won a lifetime appointment by a two-vote margin after an acrimonious hearing involving his alleged sexual harrassment.

Justice Thomas is arguably among the most conservative justices. He joined Chief Justice John Roberts in the landmark 5-4 Shelby County v. Holderdecision gutting the Voting Rights Act of 1965.

Brett Kavanaugh’s nomination, like that of Morrison Waite, Joseph P. Bradley and Roger B. Taney, has been rushed. A partisan warrior, he has been hastily advanced, with the majority of his papers withheld and sexual assault allegations overtaking his hearings.

As American history has shown, this process comes with profound risks.

Calvin Schermerhorn, Professor of History, Arizona State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

yay but why do the right thing?

https://www.alternet.org/stunning-supreme-court-decision-dark-money-were-about-know-lot-more-about-who-funding-our-elections

In a win for increased transparency and those demanding an end to the so-called "dark money" eating away at U.S. democracy, the Supreme Court on Tuesday lifted a previous stay on a lower court ruling by rejecting the argument by right-wing advocacy groups who said they should not have to reveal the identity of big-dollar donors who fund their issue-based campaign ads.

Crucially, the ruling means that groups that in the past have been able to hide the source of their funding before, during, and after campaigns will have now have to make that information available before voters go to the polls—in this case, that means before the upcoming mid-term elections. Effective immediately, any group or individual making more than $250 in express advocacy ads — ads that tell viewers who to vote for or against — must now disclose the identities of all contributors who gave more than $200 in a year.

As the Huffington Post reports:

The decision came about after Citizens for Responsibility and Ethics in Washington, a liberal watchdog group, fought for the past six years to get the Federal Election Commission to enforce campaign finance laws against Crossroads GPS, a conservative nonprofit group founded by Karl Rove, a senior adviser to George W. Bush when he was president. CREW finally won its battle on Tuesday.

As of Sept. 18, any group that runs an independent expenditure ― election ads that expressly call for the election or defeat of a candidate― in excess of $250 will have to disclose all political donors above $200.

Norm Eisen, the chairperson of CREW, celebrated the decision on Twitter: "We are about to drive a lot of dark money donors into the light—it's gonna look like the climax of a Harry Potter movie where the creatures shrivel in the sun."

Writing for the Center for Public Integrity, Dave Levinthal and Sarah Kleiner report that "secret money in politics will soon be a lot less secret."

And while Levinthal and Kleiner quoted Federal Election Commission Vice Chairwoman Ellen Weintraub, who said it won't be surprising to see some groups "come up with clever ways of getting around the rules," champions of disclosure said the ruling is a major crack in the armor of the forces of those using shadowing groups and their vast fortunes to undermine democracy.

"This is a great day for transparency and democracy," said Noah Bookbinder, CREW's executive director. "Three courts, including the Supreme Court, have now rejected Crossroads' arguments for a stay, meaning we're about to know a lot more about who is funding our elections."

no lnx guard uk

arch conservative Justice Thomas is now the most senior justice on the bench – and that has many troubling implications

Mon 2 Jul 2018 07.55 EDT Last modified on Tue 24 Jul 2018 13.08 EDT

‘Unthinkably horrible as it is, we may very well be entering a new era, the era of the Thomas court.’ Photograph: Jonathan Ernst/Reuters

:{He is the most silent supreme court Justice. He has written almost no landmark decisions. Perhaps because of this, his extreme, rightwing jurisprudence has not been seen as very influential, unlike that of his ideological clone, the late Antonin Scalia or the court’s newcomer, Neil Gorsuch. But with the retirement of Anthony Kennedy, Clarence Thomas is now the most senior conservative and quite possibly, the most important.

By most measures he is, since Scalia’s death, the furthest right on the court’s ideological spectrum. Already, this most recent court term has been a debacle for the liberal justices who, according to Adam Liptak of the New York Times, largely failed to peel off Kennedy to form a majority in the major cases.  }:

So, unthinkably horrible as it is, we may very well be entering a new era, the era of the Thomas court.

Already there is much speculation that Donald Trump’s nominee to replace Kennedy will be, if confirmed, the decisive vote to overturn Roe v Wade, the decision legalizing a woman’s right to have an abortion. Trump is on record saying he intends to nominate justices who oppose Roe. Thomas is the lone surviving justice who voted in the 5-4 minority in Casey v Planned Parenthood, the landmark 1992 decision that upheld Roe. In a joint dissent, the conservative minority, including Thomas, said in Casey: “We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.” So, it would be perfectly plausible that, if and when a new, even more conservative majority on the court decides to overturn Roe, Thomas would be chosen to write the notorious decision.

This would be the ultimate irony, given that one of the epic lies Thomas told during his 1991 confirmation hearing was that he had never discussed Roe v Wade. In subsequent books and articles, various people have said they heard him express his opposition to abortion before he joined the court.

Already, there are signs of Thomas’s growing influence. The Judicial Crisis Network, a rightwing organization, is already spending $1m to support whoever emerges as Trump’s new nominee. That organization is headed by Carrie Severino, a former Thomas law clerk. Her group spent millions to confirm Justices Neil Gorsuch, Samuel Alito and John Roberts. The group is closely allied with the Federalist Society, which has screened virtually all of the Trump judicial appointments.  

JCN operates as a dark money pit and does not disclose its donors. According to tax filings, another rightwing dark money group, the Wellspring Committee, has given JCN nearly $10m through 2014. Wellspring, in turn, is run by a couple known to be close to Justice Thomas and his wife, Ginni, who has been active in various rightwing groups and causes. It is likely that Ginni Thomas will be a player, visible or not, in any upcoming supreme court confirmation battle.

Where once he spoke only before rather obscure and reliably friendly conservative audiences, Thomas has been more public of late. According to Slate, he appeared in April with Kyle Kashuv, a Parkland survivor who opposes gun control at an event in Washington DC, where according to Kashuv, the justice told him the second amendment “won’t be touched”. The previous November, Thomas gave an interview to Fox’s Laura Ingraham,the rightwing host who is another one of his former law clerks. In February, according to Slate:

“the justice issued his Trumpiest opinion yet, condemning his colleagues for refusing to review a lower court’s decision affirming the constitutionality of California’s “cooling-off” period for gun purchases. (These waiting periods have been shown to save lives.) He assailed the court for having “more favored rights” than the Second Amendment, overturning laws restricting abortion, free speech, and personal privacy while ignoring gun restrictions. He also rebuked the lower court for protecting the free expression of nude dancers and the marriage rights of same-sex couples. His dissent was an embarrassing, discursive tirade that might as well have been ghostwritten by Dana Loesch; no other justice joined it.”

It’s been too easy to dismiss Thomas as a rightwing crank who doesn’t matter much. That’s about to change. By inheriting the mantle from Kennedy as the longest serving conservative on the court, his stature inherently grows. On a Thomas court, John Roberts could become the swing, more moderate vote in certain cases. This is a measure of how far to the right the court has tilted.

In the era of #MeToo, it’s also beyond galling to see the man who sexually harassed Anita Hill and lied his way to confirmation in 1991 become so influential.

But this is exactly what Donald Trump has undoubtedly dreamed of.

And a Thomas court is exactly what people who truly value the constitution and human rights must fight to make sure we never see.

• Jill Abramson is a Guardian US columnist

https://www.ecowatch.com/supreme-court-youth-climate-case-2591440617.html

Supreme Court Rules Trump Administration Can’t Stop Youth Climate Case

:{:{

In a glimmer of hope for litigation, the Supreme Court ruled against the administration's attempt to block a ground-breaking lawsuit brought by 21 young people against the U.S. government for crafting policies that support climate-changing ,climate change Trump fossil fuels The Huffington Post reported.

The high court ruled that the administration's motion to dismiss the case was "premature."

"This decision should give young people courage and hope that their third branch of government, all the way up to the Supreme Court, has given them the greenlight to go to trial in this critical case on their inalienable rights," Our Children's Trust Executive Director and Chief Legal Counsel Julia Olsen said in a statement reported by The Huffington Post.

Our Children's Trust is the non-profit that helped the young people behind the case file the suit.

The ruling comes as historic cases around the country are determining what role the courts can play in responding to the climate crisis.

In the past two months, federal judges in New York and San Francisco have dismissed cases brought by cities suing oil companies for the cost of adapting to climate change.

In dismissing the cities' cases, the judges argued that the executive and legislative branches should determine climate policy, not the courts.

The children's lawsuit, *Juliana v. United States*, is different from the cities' suits in that it targets the government, not oil companies, for creating policies that encouraged climate change.

...

janus disaster

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.

PUBLISHED UNDER:

CLIMATE DENIAL

CLIMATE CHANGE

DONALD TRUMP

https://www.alternet.org/anthony-kennedy-retire-supreme-court-giving-trump-chance-appoint-yet-another-conservative-justice

https://www.nytimes.com/2018/06/27/us/politics/trump-list-supreme-court-nominees.html

[anti-pryor ads AN 6/29?!]

MTAfodder

6/29/2018

https://www.propublica.org/article/how-mitch-mcconnell-made-donald-trump

How Mitch McConnell Made Donald Trump

The president owes both his election and his long-term impact to the Senate majority leader, who not only engineered the strategy that will let Trump make two Supreme Court appointments, but also created the circumstances that facilitated his rise.

May replace Kennedy on the Supreme Court bench after his retirement goes into effect on July 31, according to the White House in November:

Amy Coney Barrett of Indiana, U.S. Court of Appeals for the 7th Circuit

Keith Blackwell of Georgia, Supreme Court of Georgia

Charles Canady of Florida, Supreme Court of Florida

Steven Colloton of Iowa, U.S. Court of Appeals for the 8th Circuit

Allison Eid of Colorado, U.S. Court of Appeals for the 10th Circuit

Britt Grant of Georgia, Supreme Court of Georgia

Raymond Gruender of Missouri, U.S. Court of Appeals for the 8th Circuit

Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the 3rd Circuit

Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit

Raymond Kethledge of Michigan, U.S. Court of Appeals for the 6th Circuit

Joan Larsen of Michigan, U.S. Court of Appeals for the 6th Circuit

Mike Lee of Utah, senator

Thomas Lee of Utah, Supreme Court of Utah

Edward Mansfield of Iowa, Supreme Court of Iowa

Federico Moreno of Florida, U.S. District Court for the Southern District of Florida

Kevin Newsom of Alabama, U.S. Court of Appeals for the 11th Circuit

William Pryor of Alabama, U.S. Court of Appeals for the 11th Circuit

Margaret Ryan of Virginia, U.S. Court of Appeals for the Armed Forces

David Stras of Minnesota, U.S. Court of Appeals for the 8th Circuit

Diane Sykes of Wisconsin, U.S. Court of Appeals for the 7th Circuit

Amul Thapar of Kentucky, U.S. Court of Appeals for the 6th Circuit

Timothy Tymkovich of Colorado, U.S. Court of Appeals for the 10th Circuit

Robert Young of Michigan, Supreme Court of Michigan (retired)

Don Willett of Texas, U.S. Court of Appeals for the 5th Circuit

Patrick Wyrick of Oklahoma, Supreme Court of Oklahoma

3 rulings on gerry, pol vs racial, mixed results?

slate:

Clarence Thomas Joins Liberals, Shocks World

A strange Supreme Court alliance just struck a blow against racial gerrymandering in the United States.

By Mark Joseph Stern

Supreme Court Justice Clarence Thomas

Supreme Court Justice Clarence Thomas speaks at the memorial service for his former colleague Antonin Scalia on March 1, 2016, in Washington, D.C.

On Monday, the Supreme Court issued a landmark decision holding that two congressional districts in North Carolina were racially gerrymandered in violation of the Constitution. The broad ruling will likely have ripple effects on litigation across the country, helping plaintiffs establish that state legislatures unlawfully injected race into redistricting. And, in a welcome change, the decision did not split along familiar ideological lines: Justice Clarence Thomas joined the four liberal justices to create a majority, following his race-blind principles of equal protection to an unusually progressive result

MARK JOSEPH STERN

Mark Joseph Stern covers courts and the law for Slate.

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/05/in_cooper_v_harris_the_supreme_court_strikes_a_blow_against_racial_redistricting.html

Cooper v. Harris,Monday’s case, involves North Carolina’s two most infamous congressional districts, District 1 and District 12. In the 1990s, the Democratic-controlled state legislature gerrymandered both districts into bizarre shapes that appeared to be drawn along racial lines. A group of Republican voters sued, arguing that the state had used race to shape the districts in violation of the 14th Amendment’s Equal Protection Clause. North Carolina acknowledged that it had used race in redistricting, but argued that it did so for a constitutionally permissible reason: It wanted to comply with the Voting Rights Act, which bars states from diluting minority votes and, at the time, required the creation of majority-minority districts in historically racist states. To ensure compliance with the VRA, North Carolina asserted, it had drawn both districts to be majority black.

Clarence Thomas’ consistency handed Democrats—and the principle of equality—a remarkable victory.

In 1996’s Shaw v. Hunt, the Supreme Court ruled by a 5–4 vote that these districts violated equal protection. In this case, the conservatives formed the majority, while the liberal justices would have affirmed the constitutionality of the racially gerrymandered districts. At the time, progressives viewed Shaw and its predecessors as an assault on the VRA—a Republican effort to prevent states from helping black voters choose their own representatives. The liberal justices, on the other hand, saw many racial gerrymanders as a kind of affirmative-action program. They insisted that North Carolina’s districts were merely “designed to accommodate the political concerns of a historically disadvantaged minority.”

There was some truth to this idea, but also a great deal of naïveté. The majority-black districts that progressives defended were frequently drawn with the help of Republicans, who appreciated the clustering of Democratic voters around a few safe seats. By packing black Democrats into a handful of districts, Republicans made their own seats safer. Had the Supreme Court’s conservatives held fast on Shaw, these majority-black districts might have been invalidated. But in 2001’s Easley v. Cromartie, Justice Sandra Day O’Connor unexpectedly flipped, siding with the liberals to ease restrictions on racial gerrymandering. Easley cemented the notion that states may gerrymander along partisan lines, even where race and political affiliation are intertwined. Since then, plaintiffs have struggled to prove that gerrymanders used race as a “predominant factor” (illegal) rather than party registration (legal).

sotomayor rips them another one; koromatsu repealled

https://www.alternet.org/news-amp-politics/supreme-court-sides-trump-anti-muslim-travel-ban-5-4-ruling

Supreme Court has just handed down a 5-4 ruling siding with President Donald Trump, saying his anti-Muslim travel ban is constitutional.

MSNBC's Pete Williams says the Supreme Court rejected the argument that Trump's anti-Muslim animus was obvious in his campaign statements and tweets, even as president.

The Court claims Trump has the power to impose the ban as a matter of national security.

Wisc

https://www.exposedbycmd.org/2018/06/18/us-supreme-court-decision-roadmap-ruling-partisan-gerrymandering-case

A unanimous U.S. Supreme Court handed down a decision in Gil vs. Whitford, a case challenging the extreme partisan gerrymandering of Wisconsin voting districts by the GOP legislature. The Court remanded the technical issue of “standing” back to the same three-judge panel that had ruled Wisconsin legislative districts unconstitutional. The Court did not rule on the merits, leaving the door open for a ruling that may still rein in computer-aided, hyper-partisan gerrymandering. Read the ruling here.

The ruling was described as a “punt” by some observers, but the lawyer representing disenfranchised Wisconsin voters is hopeful that the issue can be remedied and sent back to the court for a ruling on the merits. Advocates are hoping that Justice Anthony Kennedy, who has expressed concern about this type of gerrymandering may pave the way for a positive outcome.

Citing Kennedy, Justice Elena Kagan wrote in her concurrence that “partisan gerrymandering, as this Court has recognized, is ‘incompatible with democratic principles’… the practice enables politicians to entrench themselves in power against the people’s will.”

Paul Smith of the Campaign Legal Center argued the case before the Court on October 3, 2017. He explained today’s ruling at a press conference.

“The Court issued a unanimous decision saying that the plaintiffs did not yet prove they had standing to persue the gerrymandering claim… saying essentially that our theory of statewide vote dilution does not work under a standing law that does not produce a sufficiently ‘concrete and particularized’ injury for each of the plaintiffs,” said Smith. The Court said “you have to look at the issue on a district by district basis.”

The constitutional requirement of “standing” limits participation in lawsuits to those directly impacted. To have standing, a party must show an “injury in fact” to their own legal interests. The court effectively ruled that the lead plaintiff, William Whitford, lacked standing because he was not sufficiently harmed. Whitford, who lives in a Democratic district in Madison, was asserting a statewide harm, but the court said “[t]o the extent that the plaintiffs’ alleged harm is the dilution of their votes, that injury is district specific.”

According to Smith, “the basic bottom line is there will be plaintiffs with clear standing, there will probably be more added, and when we get back to the district court we should be in the position to win very substantial relief.”

WHITFORD: “WE HAVE A ROADMAP”

Whitford, a Professor of Law Emeritus at the University of Wisconsin who envisioned the case along with redistricting expert Wisconsin Rep. Fred Kessler, said he was both encouraged and discouraged by today’s decision.

“I am encouraged because here is no reason to think we can’t present the evidence about plaintiffs that the court seems to want… [A] number of the plaintiffs already can meet that burden,” he said.

But Whitford was discouraged by the long delay. “This case was filed in 2015. We have had two elections under what I think is a clearly unconstitutional apportionment already, that give the Democrats no chance of getting the majority, and have many negative consequences in terms of policy. I don’t know how long it is going to go on, but we need to keep in mind that it is important to have a new legislative districting before the 2020 elections. Those are very important elections because that legislature will participate in the redistricting after the new decennial census.”

...

https://www.alternet.org/election-03918/supreme-court-decides-let-political-extremists-run-wild-key-election-case

U.S. Supreme Court on Monday all-but dismissed one of the most-watched election law cases in recent years, saying those in Wisconsin filing a lawsuit that sought to show how extreme partisan gerrymandering was anti-democratic had no basis to sue.

It also took no action on a second partisan gerrymandering case from Maryland.

“The Court has not found that this presents an individual and personal injury of the kind required for Article III standing,” the majority said in the Wisconsin case, sending it back to a lower court. “A citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative. The harm asserted by the plaintiffs in this case is best understood as arising from a burden on their own votes.”

The Wisconsin case sought to show how the state’s GOP-led legislature in 2011 segregated each party’s reliable voters by party to draw legislative districts after the 2010 Census to create a red super-majority. In the Maryland case, those suing said a Democratic-led legislature had overreached to erase a GOP-held House seat.

The Wisconsin suit was the most carefully watched of the two gerrymandering cases, because it involved statewide jockeying of political districts, as opposed to a single congressional seat. It was also the platform for advanced analysis that showed how the use of technology was able to tilt the electoral playing field to game political advantage based on voter turnout patterns.

The decision will reverberate on many political and cultural levels. Seen from a partisan standpoint, the Court is saying that the plaintiffs’ efforts to demonstrate that Wisconsin’s Republican mapmakers were able create a structural head start in the likely popular vote was fair game—even if it led to one-party rule for most of this decade. Beyond the technicalities of how the GOP nullified their opposition’s ability to win in typical election cycles (2018 is not a typical year), the Court’s majority is saying that rebalancing elections to create greater equality among voters is not a constitutional priority.

Going deeper, the Court’s action is likely to signal that ruling parties in supermajority state legislatures are free to tinker with the rules of voting and elections as they see fit—to preserve their power. (Wisconsin was one of more than a dozen red states that drew extreme gerrymandered maps after the 2010 census, leading to super majorities in their state legislatures and House delegations. Those ultra-red majorities then passed many of this decade’s voter suppression, anti-union, anti-abortion, anti-LGBT and anti-safety net laws.

On a cultural level, the Court is signaling that American democracy will remain a deeply uneven system, where governing classes can advantage themselves and take steps to undermine the participation and power of their opponents or under-represented constituencies.While there is a tendency among the judiciary to keep a certain distance from the political process—as a co-equal branch of government and separation of powers—the fact remains that the Court is not seeking to rebalance the most glaring anti-democratic features in the fundamentals that shape the electoral process.

Inequality in elections is going to remain a formidable obstacle. Only last week, in purple North Carolina, did the Republican-led legislature propose anew series of election rules that would disadvantage a key Democratic voting block—African Americans who voted on the weekend before the Tuesday general election. The state’s GOP proposed, among several measures, to eliminate the early voting option used by 200,000 citizens in 2016.

That move came despite a federal appeals court in 2016 rejecting an earlier slate of anti-participatory election reforms, saying those measures targeted the state’s black voters “with almost surgical precision.” But now, with the Supreme Court not acting on the partisan gerrymandering cases, the political process will be freer to revert to more aggressive tactics to advantage one side—where partisan power apparently carries more constitutional weight than equality among the electorate.

https://www.alternet.org/news-amp-politics/supreme-court-gives-republicans-another-tool-rig-elections-voter-purge-decision

Supreme Court dealtyet another blow to voting rights on Monday, this time giving states the go-ahead to purge their voter rolls, a practice that disproportionately targets Democratic-leaning populations and in particular people of color:

The case hinged on interpretation of the National Voter Registration Act (NVRA), a 1993 civil rights law intended to increase voter registration and participation. But in recent years, some conservative activists began using certain provisions of the law to force states to more aggressively purge their rolls. Those provisions govern what’s known as “list maintenance,” and their stated purpose is to remove people who have moved or passed away. But election officials instead sometimes use list maintenance to remove eligible voters—particularly poor ones and people of color—because they haven’t voted frequently enough. [...]

The court’s 5-4 decision is likely to resurrect an era that the NVRA was meant to end. The practice of purging voters dates back more than 100 years. Just as today, it was justified as a necessary tool to thwart fraud and maintain the integrity of elections. But in practice, it was often used to suppress the votes of those who might not support the party in power. The result of the aggressive purges was that Americans participated in elections at a far lower rate than citizens of other Western democracies. and low election participation rates is just what Republicans want—so Republican-controlled states will doubtless take this anti-democratic Supreme Court decision and run with it, giving Republicans yet another advantage in an increasingly rigged system.

game over tipping pt?! rbg v gorsuch

https://www.democracynow.org/2018/5/23/supreme_court_deals_blow_to_workers

a major blow to workers’ rights, the Supreme Court ruled 5 to 4 Monday that employers can use arbitration clauses to prohibit workers from banding together to challenge violations of federal labor laws in class-action lawsuits. Arbitration is often confidential. Many workers may agree to mandatory arbitration clauses without even being aware of it when they sign a contract with their employer. In a rare show of public displeasure, Justice Ruth Bader Ginsburg read her dissent from the bench, calling the majority opinion “egregiously wrong” and saying, “The court today holds enforceable these arm-twisted, take-it-or-leave-it contracts—including the provisions requiring employees to litigate wage and hours claims only one-by-one. Federal labor law does not countenance such isolation of employees.” For more, we speak with Terri Gerstein, former labor bureau chief for the New York State Attorney General’s Office

5/18

https://www.ecowatch.com/new-york-constitution-pipeline-2564902494.html

The U.S. Supreme Court on Monday rejected a petition filed by Constitution Pipeline to challenge New York state's denial of a water quality certification for the natural gas project.

Natural Gas Intelligence reported: "The petition was distributed for conference, or discussion, on Friday, but the justices simply denied it."

The ruling leaves in place the August 2017 judgment of the New York-based 2nd U.S. Circuit Court of Appeals, which sided with the state. This is a big win for the attorney general's office and the state's authority to protect its waters and natural resources.

...

https://www.alternet.org/news-amp-politics/supreme-court-just-blocked-order-north-carolina-redraw-gerrymandered-congressional

North Carolinians may vote in the 2018 midterm elections under a congressional map that has been gerrymandered by Republicans. The U.S. Supreme Court has blocked a lower court ruling ordering the U.S. House of Representatives district lines be redrawn by January 24.

Justices Ruth Bader Ginsburg and Sonia Sotomayor both objected to the order.

Reuters explains the initial ruling that ordered the district lines be redrawn:

"The three-judge panel ruled that the Republican-drawn districts violated the U.S. Constitution’s guarantee of equal protection under the law by intentionally hobbling the electoral strength of non-Republican voters. Two of the three judges also said the plan ran afoul of the Constitution’s First Amendment by discriminating based on political belief and association."

The Supreme Court is reviewing cases of alleged gerrymandering in Wisconsin and Maryland. The implications of these cases on other states, including North Carolina, remain to be seen.

...

https://www.scientificamerican.com/article/u-s-supreme-court-blocks-obama-s-clean-power-plan/

ASHINGTON, Feb 9 - The U.S. Supreme Court on Tuesday delivered a major blow to President Barack Obama by putting on hold federal regulations to curb carbon dioxide emissions mainly from coal-fired power plants, the centerpiece of his administration's strategy to combat climate change.

The court voted 5-4 along ideological lines to grant a request by 27 states and various companies and business groups to block the administration's Clean Power Plan, which also mandates a shift to renewable energy from coal-fired electricity.

The highly unusual move by the justices means the regulations will not be in effect while a court battle continues over their legality.

The plan was designed to lower carbon emissions from U.S. power plants by 2030 to 32 percent below 2005 levels. It is the main tool for the United States to meet the emissions reduction target it pledged at U.N. climate talks in Paris in December.

The Supreme Court's action casts doubt on the long-term future of the U.S. Environmental Protection Agency's rule because it increases the chances that the conservative-leaning Supreme Court would take the case after a lower court issues a decision on the legality of the regulations and ultimately would strike it down.

As recently as June, the high court ruled 5-4 against the Obama administration over its efforts to regulatemercury and other toxic air pollutants.

The states, led by coal producer West Virginia and oil producer Texas, and several major business groups in October launched the legal effort seeking to block the Obama administration's plan. The states said the emissions curbs would have a devastating impact on their economies.

West Virginia Attorney General Patrick Morrisey described the Supreme Court action on Tuesday as a "historic and unprecedented victory" over the EPA.

"We are thrilled that the Supreme Court realized the rule's immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues," Morrisey added.

For Obama, executing his climate change strategy would be a key legacy accomplishment as he nears the end of his time in office in January 2017.

House of Representatives Democratic Leader Nancy Pelosi said, "The Supreme Court's deeply misguided decision to stay the implementation of the Clean Power Plan will enable those states that deny climate science to slow progress in reducing the carbon pollution that threatens the health of all Americans."

House Republican Leader Kevin McCarthy welcomed the Supreme Court's move, saying it "has now stopped this illegitimate abuse of power after 27 states revolted against the president's anti-energy agenda."

The court action also means that, with Obama leaving office in January 2017, the next president will have a say on whether to continue defending the regulation.

Before that, the U.S. Court of Appeals for the District of Columbia Circuit, which denied a similar stay request last month, will hear oral arguments in the case on June 2 and decide whether the regulations are lawful.

"This is certainly a surprise and it suggests the court has serious concerns" about the regulation, said Jonathan Adler, a professor at Case Western Reserve School of Law.

DIVIDED COURT

The brief order from the justices said that the regulations would be on hold until the legal challenge is completed. The court's five conservatives all voted to block the rule. The order noted that the four liberals would have denied the application.

Under the EPA rule, each state must submit a plan to comply with its emission-reduction target by September 2016 but can also request a two-year extension.

The challengers contended that the Obama administration exceeded its authority under the Clean Air Act, the key law that addresses air pollution. More than a dozen other states and the National League of Cities, which represents more than 19,000 U.S. cities, filed court papers backing the rule.

Jeff Holmstead, a lawyer for coal-powered utilities that challenged the rule, said the court has never before blocked an EPA rule. "To say it's unusual is a bit of an understatement," Holmstead added.

Sean Donahue, a lawyer for environmental groups that support the law, said the court action was "surprising and disappointing." He added that "we remain very confident in the legal and factual foundations for EPA's rule."

The White House and EPA did not immediately respond to requests for comment.

}:}:

LEO 2 bak

Related

The Fight for Reproductive Justice in a Post-Ginsburg World

‘Very problematic’

Separate careers

Liberty Central

Supporting Trump

Business boom

United States courts of appeals

United States district courts

State supreme courts

Executive branch

United States senators

State executive branches

See also

SEPTEMBER 23, 2021

The Supreme Court (2020)

SEPTEMBER 30, 2021

The Shadows of the Constitution (2020)

Superiority complex

A new type of territory

Supreme Court's latest salvo exposes the trick John Roberts has played on the country

Reversing precedent is unusual

When is precedent overturned?

Justices get more comfortable reversing precedent

deadly game’: Legal experts blast Supreme Court’s dead-of-night decision enshrining ‘religious rights’ over all others

Friends of the court

The conservative wishlist

What are the tactics?

supreme Court hands victory to school voucher lobby – will religious minorities, nonbelievers and state autonomy lose out?

justice Roberts took ‘clear swipe’ at Kavanaugh in opinion siding with liberals in religion case: report

Supreme Court allows public charge clause that kept Nazi-era refugees from the US

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’

Transcript

'Not Too Much, But Not Too Little'

States Stepping Up on Climate Policies

Pennsylvania Hasn't Joined RGGI

Bad process, bad decisions

A critical time

More damage

Back to the 19th century

'Pure Conjecture'?

What This Could Mean for Future Rules

Judge Brett Kavanaugh and Climate Change

WHITFORD: “WE HAVE A ROADMAP”

Supreme Court’s newest move on abortion approves torture for pregnant people Common Dreams