An Important Test For The Court

In the three-plus years that Donald Trump has occupied the Oval Office–I deliberately didn’t say “has been President” because in any rational sense, he has not fulfilled that function–longstanding norms of American governance have been turned upside down.

Nowhere have the deviations from expectations been more worrisome than in the courts.

For years, legal scholars have debated whether this or that issue should be settled through litigation or by electoral politics. But I am aware of no credible argument that the courts should be divested of their independence and turned into supine tools of the executive branch.

Our idiot President recently called upon Supreme Court justices who disagree with him to recuse themselves–displaying not only his trademark contempt for constitutional checks and balances, but his embarrassing ignorance of American constitutionalism. That contempt and ignorance would not ordinarily be worthy of note–every day, the insane tweets and verbal diarrhea bear ample witness to both–except for a case that is making its way to the Supreme Court.

A recent article by Nancy LeTourneau at Washington Monthly pointed to the disquieting reason for Trump’s unprecedented assault on the Supremes. She begins her analysis by pointing to a truly telling statistic:

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.

As she notes, the Trump administration’s response to these failures has been to appeal directly to the Supreme Court–to ask the Court  to expedite emergency relief from the injunctions of the lower courts. Le Tourneau quotes one legal scholar to the effect that Trump has gone to the Supreme Court with such a request 24 times 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.

Trump has no understanding of the legitimacy concerns raised by such petitions, of course. He actually believes that any criticism of him or his administration should be grounds for recusal, criticism and vilification. And he has other concerns as well.

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.

All of these issues have prompted Trump’s defensive and unPresidential behavior. But even more significant is a case  that could require him 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.

Here, then, is a critical test of the Court’s independence. Will Trump’s appointees behave like the grateful tools he clearly believes they are? Will they demonstrate allegiance to Trump, or to the Constitution?

The answer to that question will tell us whether we retain a system based–however insecurely–on the rule of law.

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Scalia Was Right

Well, that’s a headline I never thought I’d write!

Not that I always disagreed with Antonin Scalia; he was pretty good on free speech, for example. But overall, I found his jurisprudence intellectually dishonest, and his “originalism” disingenuous–especially because he was smart enough to know it.

What makes the headline particularly ironic, is the fact that my initial reaction to the decision he authored in Employment Division v. Smith was that it was wrong. It was certainly widely criticized.

In that case, members of a Native American Church, who were counselors at a private drug rehabilitation clinic, were fired because they had used peyote–possession of which was a crime under Oregon law– as part of a religious ceremony.  The counselors filed a claim for unemployment compensation with the state, but the claim was denied because their dismissal was deemed work-related “misconduct.” The Oregon Courts of Appeals reversed, finding the denial an infringement of their religious liberty, and the Oregon Supreme Court agreed. The state then appealed to the Supreme Court, arguing that denying the unemployment benefits was proper because possession of peyote was a crime.

Scalia ruled that the denial of unemployment benefits was proper because the law against peyote use was a “law of general application.” That is, it hadn’t been passed as an effort to target Native American religious practices, but as part of a legislative effort to combat drug abuse generally. The fact that a law of general application inadvertently hindered a religious practice might be unfortunate, but that didn’t make its enforcement unconstitutional.

Because the law’s application in this case so obviously–and in the opinion of most people, unnecessarily– punished a longstanding religious ritual, the decision generated considerable outrage, and if memory serves, prompted passage of the Religious Freedom Restoration Act, requiring the Courts to apply a more rigorous judicial standard in such cases. (This was not the infamous Indiana version.)

On reflection, however, I came to the conclusion that Scalia was right.

Here’s the issue: When should “sincerely held religious beliefs” justify ignoring laws meant to protect or improve the citizenry? To take an obvious extreme, we have laws against murdering babies; should the ritual sacrifice of her newborn in accordance with a sincere religious belief exempt the parent from punishment?

If not, when should religious belief trump civil law?

We are once again having this debate, as a result of the tension between laws intended to ensure civic equality and religious dogmas that label certain others “sinners.”

The Washington Post recently reported on one such conflict.

The Supreme Court on Monday added a major case to its docket this fall to decide who prevails when a group’s religious beliefs conflict with a city’s attempt to eliminate discrimination.

The justices will take up a legal fight from Philadelphia, where city officials ended a contract to provide foster care services with Catholic Social Services because the agency said it would not accept applications from same-sex couples who want to take care of children. The case will be heard in the term that begins in October.

The Third District Court of Appeals ruled for the city, holding that it was not targeting the Catholic agency in enforcing its policy prohibiting the city from doing business with entities that discriminate.

The case is being seen as a major test of whether the Court will reconsider precedents, especially the precedent established in Employment Division v. Smith, to the effect that generally applicable laws that don’t intentionally target religious groups are constitutionally enforceable.

It will be interesting to see the reaction of those politicians and pundits who continue to laud Scalia for his convoluted opinions privileging religion as “tradition.”

But then, for all those who counted themselves Scalia fans, it was all and always about results–not consistency.

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The Real Hoax

As the threat of a pandemic increases, so does Trump’s idiocy.

Not only has he told his followers not to worry, because the virus is really just a “Democrat hoax,” he has defended his indefensible cuts to the CDC by reinforcing one of the most persistent actual hoaxes in American politics: the belief that anyone who has succeeded in business has the skills needed to succeed in government.

And yes, I realize that Trump didn’t succeed in business, unless being a pre-eminent con man is a measure of success.

But the fact that this particular Emperor is stark naked doesn’t negate the fact that the belief held by so many Americans– that the skills that enable someone to make a profit in the marketplace are transferable to public service– is unfounded, even pernicious. There certainly may be individuals who have both skill sets, but business and government serve very different functions and require very different approaches and abilities.

Which brings me to the most recent evidence that Donald Trump is–in Rex Tillerson’s memorable phrase– a moron. According to Business Insider,

President Donald Trump defended his huge budget cuts to the Centers for Disease Control and Prevention during a Wednesday press conference on the federal government’s response to the coronavirus.

He said it was easy to bolster the public-health agency and cited his business approach toward running the federal government.

“I’m a businessperson. I don’t like having thousands of people around when you don’t need them,” Trump said. “When we need them, we can get them back very quickly.”

I’m not sure whether this displays greater ignorance of the way science works or the way government operates. It’s pretty embarrassing–and revealing– on both counts.

Evidently, Trump thinks that all medical professionals are on call and fungible–that government can just run an ad for doctors. “Wanted: physicians with broad expertise in pandemic contagions and public health protocols. Must be able to start work immediately. Must relocate to areas where CDC facilities are located.”

The president said some of the experts targeted by the cuts “hadn’t been used for many years” and that additional federal money and new medical staffers could be obtained swiftly since “we know all the good people.”

Um…hate to break it to you, Don, but so far your definition of “good people” has excluded anyone who actually knows anything about the position or agency to which they’ve been assigned. And if you know “all the good people,” why are there literally hundreds of high-level vacancies remaining unfilled three years into your disastrous Presidency?

And about those experts who “hadn’t been used”…see, Don, there’s this thing called scientific research. It’s time-consuming. It can take years to develop vaccines, to test medicines to ensure that they are effective and don’t have dangerous side-effects. It’s called the scientific method; it requires the application of knowledge, the careful testing of hypotheses, the willingness to recognize when you’ve taken a wrong turn…all behaviors with which you are unfamiliar.

You see, those experts weren’t “unused,” Don. They were developing expertise and identifying the interventions that we desperately need right now. Your administration has spent the last two years gutting critically important positions and programs–despite the fact that health experts warned that those cuts would dramatically weaken government’s ability to manage a health crisis.

And by the way, Mr. “Businessman”– maybe there are some non-technical enterprises in which you can “ramp up” employment when more workers are needed, but that is most definitely not the way scientific research or government operates.

Other experts elaborated on the cumbersome process to shore up a government agency that’s been battered by rounds of budget cuts.

Don Moynihan, a public management professor at Georgetown University, said in a tweet that “once you have gutted institutional capacity you cannot, in fact, quickly restore it.”

Appropriating federal money to the CDC would require a bill from Congress that passes both chambers and gets Trump’s signature, said Bobby Kogan, the chief mathematician for the Senate Budget Committee.

“In addition to requiring a new law to be passed to hire people, you have to actually, you know, spend the time to hire people,” Kogan said in a tweet.

Citizens who know anything at all about science or government or public policy have long since concluded that Trump is monumentally ignorant–a walking example of the Dunning-Kruger effect–but the adoring know-nothings who crowd his rallies probably believe him when he insists that there is no danger.

I wonder how many of them will cram those arenas and catch the “hoax.”

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Games Indiana’s GOP Plays…

Oh, Indiana!

Ours is a state so gerrymandered that control of our legislature remains firmly in the hands of a Republican super-majority. To say that the lack of competition has given us state lawmakers who reflect the party’s ideological extremes would be an understatement.

So what is the “World’s Worst Legislature” (h/t to the late Harrison Ullmann) doing this year?

Well, our lawmakers are no longer trying to change the value of Pi, which I suppose is progress of a sort. What they are trying to do is keep Indiana utilities from phasing out their dependence upon coal;  persisting in their efforts to elevate the rights of fertilized eggs over the rights of women; refusing to fund election security measures; and demonstrating their ignorance of the separation of powers.

There has been a bill protecting religious mental health workers who deny emergency assistance to those they consider “sinners” and another prohibiting athletes who were born male from competing against cis women in sports. Another “protective” measure would prevent employers from implanting chips in their workers (a practice not currently occurring in the state, but hey! It might happen, so let’s talk about that rather than the very real problems we face.)

The majority is also moving new legislation to create a “cross-check” bill to facilitate the purging of (certain) voters, after a previous effort to do so was struck down by the courts as blatantly unconstitutional.

And of course our legislators are continuing to divert resources from the state’s public education system in order to prop up the religious institutions that make up some 95% of “voucher” schools.

But absolutely the most consistent legislative behavior, year after year, is the General Assembly’s adamant refusal to allow cities and towns to do–well, pretty much anything— unless and until their overlords in the legislature deign to give local elected officials their official blessing. (Especially Indianapolis, which the Republicans who represent mostly rural districts irrationally resent.) It took three sessions for Indianapolis to get permission to hold a referendum on whether to tax ourselves to improve public transit, and then only on condition that we not include light rail. Why no light rail? Who knows? And this session, legislators continue to offer roadblocks to planned expansion of the city’s rapid transit lines.

The most recent–and arguably this session’s most egregious–example is the legislature’s move to foreclose Indianapolis’ effort to protect tenants from landlord abuses. Even the Indianapolis Star was offended.

Mayor Joe Hogsett’s proposal to provide more protections to Indianapolis renters now faces an uncertain future.

Indiana lawmakers added language to a bill Monday that would prevent any city from regulating landlord-tenant relations without approval by the General Assembly, including at least two key items in Hogsett’s proposal: requiring landlords to notify renters of their rights and responsibilities, and fining landlords who retaliate against renters for reporting problematic housing.

Senate Bill 340 initially moved through the Indiana Senate as a bill addressing laws about condemned properties. An amendment added at the Republican-controlled House Judiciary Committee, though, would undercut a legislative priority of Hogsett, a Democrat, now in his second term as Indianapolis mayor.

The Hogsett administration saw its proposal as a way to balance the scales against unscrupulous landlords, many out of state, who take advantage of lax government oversight in Indiana to prey on desperate renters.

Any lawyer who has practiced real estate law in Indiana– I am one–is aware that Indiana law is heavily weighted in favor of landlords. (I’m sure this favoritism has nothing to do with the fact that the tenants who are disadvantaged by our legal framework are far less likely to be political contributors than their landlords.)

When this year’s (mercifully short) session comes to an end, we’ll see what passed and what didn’t. But one thing we can predict with confidence: local jurisdictions still won’t have anything that looks remotely like home rule.

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Single-Issue Voters And The Courts

There are plenty of reasons to criticize the single-issue voters who are willing to put up with a mentally-ill, deeply-corrupt President if they think their votes will translate into the nomination and confirmation of “conservative” judges–defined as judges likely to overrule Roe v. Wade. 

Unfortunately, “conservative” judicial candidates able to pass the right’s litmus test aren’t just reliably anti-choice. Individuals who are willing to ignore stare decisis and the multiple complexities of women’s situations in order to criminalize the termination of pregnancy don’t approach that decision in a vacuum.

Scholars who have researched the differences between pro-life and pro-choice activists have concluded that both positions are elements of far more comprehensive world-views, some religious, some not.

Pro-life activism more often than not includes the belief that men and women are intrinsically different–and that, as a result of those differences (as one study has put it), men are best suited for the public world of work, while women are best suited to rearing children. These worldviews frequently include homophobia, and often a (selective) rejection of science.

Lawyers who argue that government has the right to decide such intimate matters for individual women are conservative only in the sense that they elevate “tradition” over the limitations that the Bill of Rights places on state power. They tend to see the United States as a “Christian nation,” and are thus willing to rule in accordance with the beliefs of (some) Christian denominations and to ignore the doctrines of denominations or religions that do not consider abortion or homosexuality sinful.

I do not think it overstates the case to assert that a significant number of the “conservative” lawyers being elevated to the federal bench aren’t simply anti-choice; they are anti-modernity.

I thought about the consequences of staffing the federal courts with people who define conservatism in this very narrow way when I saw news about a recent case involving the EPA.

In a victory for science and public health, a federal court determined that the U.S. Environmental Protection Agency cannot exclude scientists who have received EPA research grants—who happen to be mainly academic scientists from research universities—from serving on its advisory panels. The change, made by former EPA Administrator Scott Pruitt, had a silencing effect on public health studies.

The court’s decision in the case, which was brought by NRDC in 2019, “affirms the role of science in protecting our environment and public health,” says Jon Devine, director of federal water policy for NRDC’s Nature Program. “This is a victory for basic truth and good governance.”

Pruitt claimed that his 2017 directive reduced bias on the EPA’s nearly two dozen advisory panels, which offer scientific expertise that then guide policy decisions on environmental pollutants, such as industrial chemicals or airborne particles from power plants. But unsurprisingly, Pruitt’s rule was not extended to scientists and consultants with ties to chemical or fossil fuel companies, allowing the agency to soon fill some open seats with industry insiders who disputed the known harm of pollutants, like ozone and PFOA.

Devine calls the now-debunked plan a “pernicious scheme to stack the deck in favor of big polluters by trying to shut out the voices of scientists—all to pump more pollution into our lives.”

The ruling was handed down by Judge Denise Cote for the U.S. District Court for the Southern District of New York, after several courts had tossed similar claims.

It’s safe to assume that Judge Cote was not a Trump appointee–NPR recently reported that 70% of Trump’s judicial appointments have been white men. (As of last August, he had not nominated a single African American or a single Latinx to the appellate courts.)

And speaking of terrifying world-views,

Dozens of those nominees have refused to answer whether they support the Supreme Court’s holding in Brown v. Board of Education, the 1954 opinion that said racial segregation of public schools is unconstitutional.

I wonder how many of the people who voted for Trump because they oppose Roe v. Wade will be equally happy with the other decisions these “conservatives” will inevitably hand down?

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