Lawyers Are Grieving

A letter to the editor (Josh Marshall) of Talking Points Memo struck a nerve with me. A major nerve.

As Marshall noted in an introductory paragraph, this term’s string of decisions from the Supreme Court prompted a number of letters from lawyers; he began by quoting one correspondent:

I don’t believe laypeople really understand what a a heavy, heavy emotional lift it is for the vast majority of attorneys generally, and law professors in particular. The belief that we are serving the rule of law and that that while decisions will always be shaped by human weakness, judges can and will render rulings contrary to their ideological predilections if the law requires it is central to our identity. it is what makes us more than the lawyer jokes say we are. It is the essence of the constitutional principle of due process, equal protection, Magna Carta law of the land. All that stuff. It’s hard to accept that it’s dead and courts are just political actors, even as right wing billionaires have plowed fortunes into making state and federal courts exactly that.

I have had this conversation with many attorneys who are not political maniacs like I am. I find few who are not struggling with acceptance because, make no mistake, acceptance is to accept existential crisis, accept the need, at best, to completely redefine who we are and how we do it. In a real sense, most of us are grieving for due process and rule of law like people grieving a death where no body has been found. We know it emotionally, but don’t accept it intellectually or accept it intellectually, but not emotionally.

This particular writer has eloquently conveyed what I–and the multiple lawyers in my immediate and extended family–have been feeling. The ground has shifted beneath our feet, and we are disoriented. I no longer know what country I inhabit. As another letter-writer put it, we’ve been forced to recognize that defending America’s democratic institutions and defending the legitimacy of the Supreme Court are no longer compatible. “You can’t be on the side of the virus and the cure at the same time.”

No kidding.

For most of my professional life, I’ve been very patriotic (perhaps overly so, I’ve reluctantly concluded)–and that patriotism has been rooted in my reverence for what I understood to be the original underlying premises of the Constitution and Bill of Rights. I have always understood America’s government to be constructed on the libertarian premise that we humans have the right to autonomy, to  self-determination, until and unless our actions are harming the person or property of another, and so long as we are willing to accord an equal liberty to others.

True, that genuinely original principle wasn’t shared broadly enough, wasn’t extended to those wrongly viewed as lesser, but at the time, its mere articulation represented a huge advance in conceptions of legitimate governance.

I spent twenty-one years sharing that conviction with university students. I’ve made hundreds of speeches, written literally thousands of columns, academic papers and blog posts based firmly on the understanding that in my country, religious folks didn’t get to legislate obedience to their doctrines, government didn’t get to dictate my private beliefs and/or behaviors–and that those and other limits on government infringements of my personal liberties are at the very heart of what does make America great.

Our job as citizens, I taught, is to ensure that the respect for human rights at the heart of our original founding philosophy is extended to people who have previously been marginalized or oppressed.

That founding philosophy–that genuine originalism– is being purposely upended by an illegitimate and profoundly dishonest Court majority. As Marshall noted, in response to several of the letters he shared,

A whole ideology of judicial independence and the very idea that the law is an independent force with a logic of its own, a constraint on the vicissitudes of power and politics, does seem under threat from the realities of the moment…

We’ve learned a common pattern in which a constitutional challenge once viewed as unprecedented bordering on absurd emerges as new constitutional law two or three years later. This is all the definition of an out of control Court operating beyond its authority. The process by which it arrived at this point is one of a deep and profound corruption.

That corruption can only be addressed by the political process. As Marshall says, both of the other branches must act in concert, limiting jurisdiction and adding judges;  these are  “legitimate remedies, responses to the perversions of the rule of law and judicial independence rather than attacks on it.”

Of course, if there isn’t a blue wave in November, this won’t happen. Like most lawyers, I’m in mourning.

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Sometimes, There Really Are Conspiracies

Or at least, co-ordinated efforts that look pretty conspiratorial.

At first glance, the co-ordinated effort to hobble government efforts to provide for the “general welfare”–to work on behalf of the common good–would seem to have little or nothing to do with a widely reported incident at a Wisconsin Walgreens. A married couple on vacation realized that the wife had left her birth control at home, so she went into the drugstore, picked a box of condoms from the shelf, and took them to the register. A  pompous little prick at the register refused to ring them up, citing his “faith.”

As a contributor to Daily Kos noted,

There’s no law in America against being an ass, so this Walgreens clerk was entirely within his rights to behave like one. But, because of five Republicans on the Supreme Court, it now is problematic — and soon could be against the law nationwide, if Clarence Thomas gets his way — for Walgreens to fire him for “exercising his faith” when working in a drugstore.

The vast majority of Americans, opinion research shows, think a situation like this is absurd. As Jennifer Brooks notes in an article about the Pentz’s experience for the Minneapolis Star-Tribune: “When the Pew Research Center surveyed American attitudes about birth control, just 4% viewed contraception as morally wrong. 

The writer then connected this exhibition of religious nuttery to the broader–and far more concerning–longterm effort to neuter the authority of government.

The rightwing billionaires and the corporations and foundations aligned with them knew back in 1971 — when Lewis Powell laid out their strategy in his infamous Powell Memo the year before Nixon put him on the Supreme Court — that most Americans wouldn’t happily vote to lower billionaires’ taxes, end unions and regulation of gun manufacturers, or increase the amount of refinery poisons in our air.

So the strategy they came up with to capture control of our government was pretty straightforward:

  1. Convince Americans that taxes aren’t “the cost of a civil society” but, instead, a “burden” that they were unfairly bearing. 
  2. Convince Americans that regulations that protect consumers and the environment are also “burdens” from an out-of-control “nanny state.” 
  3. Convince Americans that unions aren’t “democracy in the workplace” that protect workers’ rights but, instead, an elaborate scam to raid workers’ paychecks to the benefit of “corrupt union bosses.”

As he writes (and many others have documented) they spent five decades and billions of dollars to subsidize think tanks and policy groups at both the federal and state level. As a result, there’s now an extensive network of them reaching from coast-to-coast, all turning out copious policy papers and press releases.

They also sponsored rightwing talk radio– and Australian billionaire Rupert Murdoch rolled out Fox “News” to compliment the propaganda campaign. Social media bots and trolls came later, as did literally thousands of websites pretending to be newspapers.

They hooked up with the NRA, which helped sponsor the Reagan Revolution and was richly rewarded with laws that forbade the federal government from compiling gun death statistics and gave complete immunity from lawsuits to weapons manufacturers and sellers for the damage their products cause (the only industry in America that enjoys such immunity).

And they finally got a lot of Americans to go along with their plan, because they’d added in a religious “secret sauce.”

As the writer tells it, Jerry Falwell was a critical part of that “secret sauce.”

Falwell was an inveterate grifter, hustling Jesus to build a multi-million-dollar empire while ignoring Jesus’ teachings about humility, poverty, and the need to care for others. A new, muscular Jesus — a Jesus who endorsed assault weapons and private jets for preachers — came to dominate much of America’s protestant Christianity.

This Jesus wanted you to get rich — riches are a sign of God’s blessing — and in the 1980s, the “prosperity gospel” was all over TV and in megachurches. 

The televangelists became multimillionaires, churches openly defied IRS regulations and preached politics from the pulpit, and millions of mostly non-political church-goers were suddenly evangelists not just for Jesus but also for the Republican Party…

To keep the rubes coming to the churches where they’d hear that GOP message, Republicans on the Supreme Court had to throw them the occasional bone. Giving bakers the right to tell gay people wanting a wedding cake to screw off was one of them, setting up the “religious right” of pharmacists to refuse to sell condoms.

I’m dubious that these efforts were as intentional and strategic as the author clearly believes, but the degree of coordination is really irrelevant. The results–the major problems America now faces– are indisputable.

And as he says, they were all made possible by an unholy alliance of church and state that the Founders warned us against.

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Deplorable Rokita

Hillary Clinton’s characterization of Trump supporters as “deplorable” wasn’t a politically savvy move, but in the aftermath of the 2016 election, Republican officeholders have done their best to illustrate its accuracy.

Here in Indiana, where our last Attorney General was sanctioned by the Disciplinary Commission for groping female legislative staffers, the current occupant of that office is evidently campaigning for the title of most disgusting officeholder–and that’s the only campaign he should actually win.

I’ve previously posted about Rokita–several times, in fact. In 2013, when he was in Congress, I explained why he was more embarrassing than then-Governor Mike Pence. In 2014, I explained why he was dangerous and anti-American. (Also in 2014, I highlighted his comparison of himself to Earl Landgrebe, whose most famous quote, “Don’t confuse me with the facts. I’ve got a closed mind” was perhaps more telling than he had intended.) When he was elected AG, I posted a compendium of Rokita’s positions and suggested that Indiana had once again elected a guaranteed embarrassment to the position of Attorney General.

You can find links to those posts in “Speaking of Blowhards and Scoundrels”

I also commented on disclosures that Rokita had retained his position with the health benefits firm he’d worked for prior to the  election, even after he assumed his current, presumably full-time “day job”  as Indiana’s Attorney General. A day job that coincidentally gave him investigative jurisdiction over that “other” job…(The publicity led to a resignation–but not to any evident recognition of why it was a problem…)

Most recently, I posted about Rokita’s despicable and unprofessional attacks on the Ob-Gyn who performed an abortion on the ten-year-old rape victim who traveled to Indiana because–after Dobbs— she could not legally obtain an abortion in Ohio.

I was gratified when the doctor’s lawyer served Rokita with a “cease and desist” letter, and followed it with a tort claim notice–a legal precursor to a defamation lawsuit. But I was especially pleased when Lauren Robel (a former dean of IU’s law school, former Bloomington provost and former Executive Vice President of Indiana University) filed a complaint with the Indiana Supreme Court Disciplinary Commission against Rokita, accusing him of “recklessly” making claims that weren’t backed by fact.

Unlike Rokita, Robel is widely respected and admired. She readily admits that this is the only time in her 40 years as a lawyer and law professor that she has ever lodged a disciplinary complaint.

In Robel’s complaint, she argued Rokita failed to perform due diligence before making accusations about Bernard.

“What General Rokita did, in essence, was identify a private citizen whose political views he disagrees with and suggest repeatedly, on national television, and on the Attorney General’s official website, that she had broken the law, with no evidence to support those claims,” Robel wrote. “If he can throw the entire weight of his office without consequence to attack Dr. Bernard, he can do so to target any private citizen with whom he disagrees. This is the opposite of the rule of law.”

“It was also about as clear as it could be that he went after this doctor who was performing a legal medical procedure in Indiana because he opposes abortion, not because he had evidence against her of any sort,” Robel said. “The deputy for Stalin was reported to have said, ‘Show me the man and I’ll find the crime.’ That’s just not the way we do things in the United States.”

Robel’s request for an investigation came on the same day fourteen Indiana law professors sent a letter to Rokita, demanding he walk back his previous statements and issue a public apology to the doctor.

“You maintain the false statements, uncorrected even today, on your Webpage and on Twitter,” the law professors from Indiana University and University of Notre Dame wrote. “Your actions are inconsistent with your responsibilities as a lawyer and a prosecutor.”

Rokita’s office has responded that it has no plans to back down or correct the AG’s previous statements.

This isn’t about abortion. It is about attorney ethics–a subject that Rokita rather obviously has never encountered (and probably can’t spell). It is about respect for evidence and truth. It is about the abuse of power, and contempt for the most basic rules of legal practice that we expect an Attorney General to uphold.

Deplorable is the nicest description of Todd Rokita available. My own description would involve more profanity than is appropriate to include on this platform. He has zero redeeming characteristics.

He’s a disservice to the profession–and a blot on humanity.

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It Isn’t Just The Bar Exam…

The New Republic recently printed an essay devoted to one of the many, many less tragic but nonetheless unfortunate consequences of the decisions issued this term by our rogue Supreme Court–the fact that the Court has upended the lives of students studying for the bar exam.

I know whereof the author speaks. A couple of weeks before the essay appeared, I had lunch with a good friend and his daughter, who had just graduated from the University of Michigan law school and was studying for the bar exam. She had been an excellent student, but was now stymied about how to answer questions about what she’d been taught were basic principles of American jurisprudence. What should she do in the wake of the Court’s string of radical departures from what she’d been taught was settled law?

Snark that I am, I suggested starting every answer with “Until this year, the law was…” But of course, that assumes the exam consists largely of essay questions.

As the author of the article in the New Republic put it

Picture the scene: It’s the summer after I graduated from law school and a day that ends in y, which means I’m currently hunched over a workbook, attempting to answer practice questions for the multistate bar exam. Such cramming for the bar is a universal rite of passage in the legal field—one that every lawyer in America remembers going through. But right now, law school graduates across the country are experiencing the ordeal a little differently. Because this year, a lot of the laws we are trying so hard to memorize are, as of just a few weeks ago, no longer actually the law.

The author shared a multiple-choice question that has undoubtedly been on several such exams, and then described the dilemma: of the three choices, “B” was correct. At least it should be correct. Except now, not so fast…

Or, well, “B” used to be the right answer. It was the right answer when we graduated from law school at the end of May. It was the right answer through most of June, as we studied the elements of substantive due process—the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference, like the rights to personal autonomy, bodily integrity, self-dignity, and self-determination. For decades, these interests formed the outline of a constitutionally protected right to privacy, whose framework we’ve spent the summer copying onto flashcards and trying to recount in practice essays.

But this substantive due process right to privacy was just dealt a body blow by the Supreme Court’s ruling in Dobbs v. Jackson that the U.S. Constitution does not confer a right to abortion.

After enumerating several of this session’s other dramatic “U turns” to constitutional jurisprudence, he writes:

And the hits keep on coming: Next there’s a question on the “case or controversy” requirement laid out under Article III of the Constitution, stipulating that federal courts only have the power to resolve legal questions arising out of an actual dispute between real parties. That’s been a basic principle of judicial review since 1793, and yet I know that the multiple-choice option I mark for correctly stating this rule completely contradicts the Supreme Court’s disastrous climate decision in West Virginia v. EPA—a case over an environmental regulation that never took effect, no longer exists, and never created any real dispute between actual parties. Then I drop my pencil and put my head in my hands….

In order to practice law, every newly licensed attorney in the year 2022 has to take an exam testing their grasp of legal principles that are no longer legal and laws that are no longer the law. That an unelected panel of ideological extremists could change so many critically important pieces of America’s legal architecture overnight—radically remaking our laws on abortion, separation of church and state, climate change, the rights of criminal defendants, Native American sovereignty, gun control, the capacity of the administrative state to keep us safe, and more—all with zero input from or accountability to the American people, demonstrates how completely unmoored this court is from the principles of democratic governance.

It isn’t only students cramming for the Bar Exam who find themselves suddenly adrift. Pretty much every lawyer I know is gobsmacked..

Me too. I recently collaborated with Women4Change Indiana on a series of civic education videos meant to explain the operation of the U.S. Bill of Rights. The Court’s ahistorical and deeply dishonest departures from what I knew as settled legal principles has made several of those videos inaccurate.

I encourage you to click through and read this very poignant essay--and the author’s very pointed criticisms of the judicial extremists who are decimating the rule of law.

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Quasi-Church And State

When does a political ideology become a religion–or a political nonprofit a church?

Those questions weren’t uncommon back in the days of the “evil empire,” when a number of pundits suggested that the fervor of communists and fellow-travelers was indistinguishable from that of devout religious believers. When the world became less bipolar–when there was no longer a single, global menace (or savior)– those comparisons also faded away, but the underlying issue remains.

Now, with a new twist.

Is a religion any belief system characterized by an accepted dogma? Wikipedia defines dogma as “a belief or set of beliefs that is accepted by the members of a group without being questioned or doubted,” and goes on to note that It may be in the form of an “official system of principles or doctrines of a religion” –and may also be “found in political belief-systems, such as Marxism, communism, capitalism, progressivism, liberalism, conservatism, and fascism.”

Belief in a deity characterizes some, but certainly not all religions, so that “marker” isn’t dispositive.

If a political ideology is indistinguishable from a religion, what are the consequences for a legal system that separates church from state?

That is just one of the questions that arises from a recent trend reported by Pro Publica— a growing number of right-wing political entities have been petitioning the IRS to declare them churches.  That status allows such organizations to shield themselves from financial scrutiny, which is undoubtedly the prime (and arguably corrupt) motivation. The article focused on the Family Research Council (FRC), a rightwing think-tank

The Family Research Council’s multimillion-dollar headquarters sit on G Street in Washington, D.C., just steps from the U.S. Capitol and the White House, a spot ideally situated for its work as a right-wing policy think tank and political pressure group.

From its perch at the heart of the nation’s capital, the FRC has pushed for legislation banning gender-affirming surgery; filed amicus briefs supporting the overturning of Roe v. Wade; and advocated for religious exemptions to civil rights laws. Its longtime head, a former state lawmaker and ordained minister named Tony Perkins, claims credit for pushing the Republican platform rightward over the past two decades.

What is the FRC? Its website sums up the answer to this question in 63 words: “A nonprofit research and educational organization dedicated to articulating and advancing a family-centered philosophy of public life. In addition to providing policy research and analysis for the legislative, executive, and judicial branches of the federal government, FRC seeks to inform the news media, the academic community, business leaders, and the general public about family issues that affect the nation from a biblical worldview.”

In the eyes of the Internal Revenue Service, though, it is also a church, with Perkins as its religious leader.

There are advantages to this change in status. Since the FRC was classified as a church (in 2020), it no longer had to file a public tax return, known as a Form 990. Form 990s list the salaries of key staffers, the names of board members and the identities of related organizations.  They also contain information about any large payments to independent contractors and any grants the organization has made. And as the article notes, “Unlike with other charities, IRS investigators can’t initiate an audit on a church unless a high-level Treasury Department official has approved the investigation.”

Very convenient. And not, evidently, an anomaly. FRC’s former parent organization, Focus on the Family, became a church for tax purposes in 2016.

In a statement, the organization said it made the switch largely out of concern for donor privacy, noting that many groups like it have made the same change. Many of them claim they operated in practice as churches or associations of churches all along.

FRC has defended the status change as a protection of its “religious liberty” rights, and noted that Treasury Department rules exempt church organizations from the mandatory coverage requirements for contraceptives. They can also discriminate with impunity–refusing to hire women or LGBTQ citizens.

I’m sure that delights them.

The article identified a rogues’ gallery of extremist rightwing organizations that have chosen to identify themselves to the IRS as churches, and noted that the IRS has been inexcusably lax in determining whether those organizations actually meet the agency’s own definition of a church.

Forgive me if I’m being dense here, but if these organizations are churches, can’t the IRS enforce the Johnson Amendment–the rule that prohibits churches from engaging in nakedly political activity–and strip them of their tax-exempt status? (If any of my readers are tax lawyers, please weigh in…)  FRC pretends that an affiliated entity is responsible for its direct political activities, but that entity apparently has no employees.

At this point, the various “churches” of Theocracy-R-Us are having it both ways.

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