And The Hits Keep Coming…

What happens when government–the primary mechanism through which humans engage in collective action– is no longer perceived as legitimate? 

Two headlines from last Wednesday’s Guardian suggest that we may soon be able to answer that question.

First, the Supreme Court.  It’s Clarence Thomas–again.

Several lawyers who have had business before the supreme court, including one who successfully argued to end race-conscious admissions at universities, paid money to a top aide to Justice Clarence Thomas, according to the aide’s Venmo transactions. The payments appear to have been made in connection to Thomas’s 2019 Christmas party.

The payments to Rajan Vasisht, who served as Thomas’s aide from July 2019 to July 2021, seem to underscore the close ties between Thomas, who is embroiled in ethics scandals following a series of revelations about his relationship with a wealthy billionaire donor, and certain senior Washington lawyers who argue cases and have other business in front of the justice.

Despite the fact that the payments all referenced Thomas’ Christmas party, the article says it remains unclear what the funds were actually for. Most of the former clerks who made the payments are currently lawyers working for large and prominent law firms–firms with substantial business before the Court. None of them responded to the Guardian’s requests for clarification.

Richard Painter, who served as the chief White House ethics lawyer in the George W Bush administration and has been a vocal critic of the role of dark money in politics, said is was “not appropriate” for former Thomas law clerks who were established in private practice to – in effect – send money to the supreme court via Venmo.

“There is no excuse for it. Thomas could invite them to his Christmas party and he could attend Christmas parties, as long as they are not discussing any cases. His Christmas party should not be paid for by lawyers,” Painter said. “A federal government employee collecting money from lawyers for any reason.”

Gee, it must be nice to be a Supreme Court Justice. As a steady stream of reports has confirmed, if you are a Justice like Clarence Thomas,  you don’t have to pay for anything–your mother’s home, fancy trips, memberships in exclusive clubs, your nephew’s tuition, your wedding reception…evidently, not even your Christmas Parties.

The steady drip, drip, drip of disclosures–especially those about Thomas and Alito– have deeply damaged the legitimacy of the highest Court in the land. But it isn’t only the Court.

Across the way, Congressional Republicans are doing their best to de-legitimize that branch of government.

The headline and sub-head tell the tale: “Former House Republicans and DoJ veterans lambast efforts to curb FBI and justice department”.”Current GOP members ‘disconnected from reality’ while working toward weakening democracy and the justice system.”

As House Republicans with close ties to Donald Trump widen investigations into alleged bias at the Department of Justice and the FBI – while also mulling impeachments of top Biden administration officials – justice department veterans and ex-GOP members are voicing concern that these efforts weaken the justice system and democracy.

 Led by the judiciary committee chairman, Jim Jordan, the far-right House Freedom Caucus members have helped spearhead inquiries into the alleged “weaponization of the federal government” with significant backing from the House speaker, Kevin McCarthy, and other GOP leaders.

Freedom Caucus members have issued wild and irresponsible threats to impeach pretty much everyone connected with the justice system, starting with Merrick Garland;  they’ve threatened budget cuts and/or the freezing of some officials’ salaries to penalize perceived biases against Trump, even though such moves would seem to undercut traditional GOP “law and order” rhetoric and policies.

That was “traditional” rhetoric at a time the GOP was a political party rather than a lunatic cult. Several former Republican Representatives clearly understand the devolution.

“Jordan is not only accepting Trump’s falsehoods but actively promoting them. It’s an alternative reality. Members are doing it for re-election purposes, fundraising and power,” said the former Michigan Republican representative Dave Trott.

Trott added that he thought “what the Trump crazies have promoted is undermining our democracy and confidence in our judicial system and justice department. Now they want to defund justice and the FBI because they know it will further energize the far-right base.”…

Looking ahead, House GOP alumni warn that the Republican investigations may appeal to Trump and his base, but alienate moderate voters.

“I’m sure Trump is thrilled by it all,” the former Republican Pennsylvania representative Charlie Dent said. “I bet he’s talking to his allies regularly. Trump is looking at this from his sense of personal grievance.”

Corruption on the Court. Keystone Kops running the House of Representatives. A  political party turned into a grievance cult by a dangerously mentally-ill ex-President.

We’re in a world of hurt.


Time For A Realignment

Recent events have increased my belief that the U.S. is at a political tipping point.

In the past few weeks, in addition to the mass shootings that are now horrifyingly routine, we’ve seen Tennessee’s gerrymandered White Republican legislature expel two young Black Democrats who breached “House Order”–despite that body’s unwillingness to expel White Republicans accused of sexual misconduct and criminal activity.

Immediately after a jury found a defendant guilty of intentionally murdering a Black Lives Matter demonstrator, Greg Abbott vowed to pardon him.

Then, thanks to Pro Publica– in deeply-researched reports which have once again underlined the importance of a free and vigorous press–Americans learned that Clarence Thomas’ corruption extends well beyond his widely-criticized refusal to recuse himself from cases involving organizations with which his wife has been active. Not only did Thomas accept trips on yachts and luxurious accommodations worth millions from his “dear friend” Harlan Crowe (a “friendship” that began five years after Thomas joined the Court), not only did Crowe’s purchase of real estate from Thomas (at an evidently inflated price)  go similarly unreported, we’ve also learned that Crowe’s creepy collection of memorabilia includes two pictures painted by Hitler and a signed copy of Mein Kampf. 

We also learned that, early in their “friendship,” Thomas had reported some of those gifts, but when those reports generated criticism, rather than stop accepting them, Thomas stopped reporting them.

It isn’t just Clarence Thomas.

For years, the American public ignored the legal profession’s exhortations about the importance of the judicial branch, and the need to vote against lawmakers intent upon elevating ideologues to the bench. It’s not just Thomas and the rabidly conservative bloc that now dominates the Supreme Court; thanks to a rogue Texas Judge,  a lot more people understand the importance of an intellectually honest, honorable and professionally competent judicial branch.

A federal judge in Texas issued a preliminary ruling invalidating the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone, an unprecedented order that — if it stands through court challenges — could make it harder for patients to get abortions in states where abortion is legal, not just in those trying to restrict it.

Kacsmaryk’s ruling wasn’t unexpected. Since Trump placed him on the bench, this poster boy for judicial activism has been the choice of forum-shopping rightwing extremists who’ve responded to clear signals that he would ignore legal precedents that conflicted with his religious beliefs.  Among other numerous legal deficits, this particular decision ignored a six-year statute of limitations, rules governing standing, and sound science.

Worse–as two hundred drug companies pointed out in a letter blasting the decision,

“The decision ignores decades of scientific evidence and legal precedent,” the drugmakers wrote. “Judge Kacsmaryk’s act of judicial interference has set a precedent for diminishing FDA’s authority over drug approvals, and in so doing, creates uncertainty for the entire biopharma industry.”

Should the decision be upheld, the consequences of second-guessing the experts at the FDA decades after the fact would threaten investment in all new medications, not just those related to reproduction.

Meanwhile, Rightwing activists and lawmakers are continuing their attacks on local school boards and libraries, and Republican legislators in Red states continue to focus mean-spirited and dishonest attacks on trans children and the medical professionals who treat them.

The narrow focus on transgender folks is strategic. Polling has confirmed that significant majorities of Americans now support same-sex marriage and anti-discrimination laws protecting LGBTQ+ citizens, making wholesale attacks on the gay community politically  unwise.

Nearly eight in ten Americans (79%) favor laws that would protect gay, lesbian, bisexual, and transgender people against discrimination in jobs, public accommodations, and housing, including 41% who strongly support them.

Trans children are more vulnerable–in more ways than one.

As Jennifer Rubin wrote in the Washington Post

It is one thing to gin up the base on invented threats from critical race theory or the “great replacement theory.” But when the MAGA movement’s judges begin to inflict radically unpopular edicts on those outside the right-wing audience, that risks sparking a counter-response: a determined, broad-based movement insistent that the United States not turn the clock back on decades of social progress….

The more the Supreme Court diverges from overwhelming public sentiment on issues such as abortion, guns and voting rights, the more strength and more allies the progressive movement may gain.

Add to all this the ongoing antics of the buffoons in Washington whose behavior continues to prevent anything remotely resembling thoughtful governance, the  constantly unraveling spectacle that is Donald Trump, and the increasingly overt racism and misogyny that pervades today’s GOP.

Walter Dean Burnham once argued that there’s a 30–38 year “cycle” of political realignments.

We’re overdue, but the signs are there.


Tennessee, Clarence Thomas And The Corruption Of American Democracy

Question: What do Clarence Thomas and the Republican legislators in Tennessee have in common?  Answer: They both epitomize the corruption of American democracy–a corruption that has led to a precipitous decline in public confidence in America’s governing institutions.

Several media outlets have reported on recent polling from Gallup that shows trust in the judicial branch at record lows. Only 47 percent of Americans have “a great deal” or “a fair amount” of trust in the federal judiciary– a drop of 20 percentage points from two years earlier. When asked about the Supreme Court, it was worse:  58 percent disapproved of the high court’s performance.

Those numbers are unlikely to improve following the most recent disclosures about  Justice Thomas and his “dear friend” Harlan Crowe. The initial revelations about Thomas’ acceptance of luxurious trips were stunning enough, but the Justice’s argument that he hadn’t needed to report them since they were just “hospitality”–while unconvincing–left him some rhetorical wiggle-room.

The latest revelations don’t.

This time, Thomas directly received money from Crow — perhaps in excess of the market value of the Chatham County, Ga., properties that Crow purchased from Thomas and his kin. This is no longer about receiving “personal hospitality.” It’s about a financial transaction between Thomas and a GOP donor who has also subsidized his vacations.

There is no doubt that the sale of personal real estate to Crow should have been reported on the justice’s financial disclosure form for 2014, and there is no excuse for failing to do so. The most logical explanation is that Thomas, whose relationship with Crow had already been the subject of unflattering news reports, wanted to keep it from public view.

The linked article also notes  that Thomas has failed to report his wife’s considerable income from Rightwing organizations–although the law clearly requires  that income to be reported.

Inescapable bottom line: Clarence Thomas is corrupt, and his judicial decisions are compromised.

Then there is the emerging information about the Tennessee legislature–information that probably would not have been uncovered or widely disseminated had that body not over-reacted to a breach of House decorum by expelling two young Black Democrats.

Democracy Docket has taken a deeper dive into that gerrymandered legislature’s  disdain for representative democracy. Tennessee, like Indiana, has a Republican super-majority–courtesy of gerrymandering–that routinely acts to disempower state Democrats.

Some examples:

Tennessee’s Democratic cities have come under a coordinated attack from lawmakers. In March, Gov. Bill Lee (R) signed a law that forces the Nashville Metro Council to reduce its membership by half. Two lawsuits were filed challenging the law and on April 10, a Tennessee court temporarily blocked portions of the law while litigation continues.

After the expulsion of Pearson, GOP legislators threatened to withdraw funding from important projects in Memphis’ Shelby County if Pearson was reappointed.

In the latest round of redistricting, the Legislature divided Davidson County, home to Nashville, into three separate districts, dismantling the city’s Democratic-held seat. The lawmakers also approved state legislative districts that entrenched Republican supermajorities in both chambers of the Legislature. (Notably, the recent expulsions were only possible because of GOP supermajority control.)

Tennessee denies voting rights to over 470,000 citizens with one of the strictest (and most complicated) felony disenfranchisement laws in the United States. The state disenfranchises 21% of its Black voting-age population, the highest percentage in the country.

Tennessee has restrictive voting laws, leading to a low democracy tally by the Movement Advancement Project. Instead of improving voting access, the Legislature’s priorities have included laws requiring state and local officials to consult with the legislative leadership before changing certain state election laws and prohibiting election offices from accepting any private grant for election administration.

And we wonder why Americans no longer trust our political institutions…why so many of us have moved from skepticism to cynicism.

Political trust is generally described as citizens’ confidence in their political institutions. As political scientists repeatedly warn, that trust is an important component and indicator of political legitimacy; its erosion is not something to be taken lightly.

As I used to tell my students, an enormous number of American laws depend upon voluntary compliance by citizens–everything from filing taxes to obeying traffic signals. The ability of the authorities to catch and punish scofflaws depends upon the fact that the rule-breakers are relatively few. When citizens no longer trust that those in power are following the rules, rising numbers of them will feel justified in breaking those rules as well.

And it’s all inter-related

A properly functioning Supreme Court would have outlawed the rampant gerrymandering that produced Tennessee’s –and other state’s–rogue legislature.

As NASA might put it: Houston, we have a problem.


Muskets and AR-15s

Correction of  a previous post: I was so astonished by an email from a very reliable friend that I failed to check his assertion that Jim Lucas would be introducing a bill to give gun purchasers a tax credit. It turns out to have been a joke from my friend–plausible thanks to the fact that Lucas is verifiably nuts–but unforgivable on my part for repeating something without checking its accuracy. Mea Culpa.


I rarely post about America’s fixation with guns–or to be more accurate, the fixation of some Americans with guns. That isn’t because it is unimportant–it’s because I’ve concluded it’s hopeless. Whatever our more rabid gun-lovers are compensating for (use your imagination), the addiction is beyond my ability to address.

I still remember a conversation I had years ago with George Geib. George was a fixture at Marion County GOP headquarters, where–among other things–he trained precinct workers. He was also a longtime history professor at Butler. I had just become Executive Director of Indiana’s ACLU, and asked him to serve on a committee I was forming to try to resolve disputes within the Board on interpretation of the 2d Amendment.

George declined, telling me that “The 2d Amendment gives you a right to carry a musket and powder horn! Period.”

I thought about George’s response when I read a recent newsletter from Robert Hubbell,  discussing the fallout from New York State Rifle & Pistol Association v. Bruen –a Supreme Court decision written by Clarence Thomas. Bruen held that modern gun regulations must be “consistent with this Nation’s historical tradition of firearm regulation.”

As Hubbell noted, that test effectively limits the regulation of guns to laws in place in the 18th century.

Unfortunately, the decision limited regulation–not items being regulated–to the 18th Century, rather than following more rational Court precedents in cases involving modern technologies. For example, a few years back (before the Court was captured by rightwing ideologues in robes), the Court was faced with a case requiring an updated interpretation of what constitutes a “search” for 4th Amendment purposes.

In that case, Kyllo v. United States, the Court ruled that the use of a thermal imaging device to monitor heat radiation in or around a person’s home, even if conducted from a across the street, is unconstitutional without a search warrant. (The device allowed police to detect pot growing in the home’s basement.)

In the Founders’ day, a “search” required officials to trespass–to enter the premises being searched. By 2001, when Kyllo was decided, technology allowed police to search from across the street. Was that still a search, requiring probable cause? The Court–quite properly, in my opinion–said yes, in a majority opinion written by that noted “liberal” Antonin Scalia. 

Clarence Thomas, presumably, would now disagree, although he was in the majority in Kyllo.

I define an actual originalist as someone who understands what value the Founders were trying to protect, and proceeds to protect that value in a world the Founders could never have imagined. (I used to ask my students what James Madison thought about porn on the internet.)

Madison and the other Founders couldn’t have foreseen the Internet–or radio, television or movies– but we apply their concerns about freedom from government censorship to those platforms.

It is insane to define “originalism” as refusal to regulate any technology that didn’t exist in the 18th Century.

Thanks to the Court’s surrender to the gun lobby in Bruen,  the reactionary Fifth Circuit Court of Appeals has now invalidated a law that prohibited defendants accused of domestic violence from possessing a firearm during the time the court was engaged in a determination of guilt– even if the court had made a preliminary finding that allowing the defendant access to a firearm presented a risk of violence.

As the link from Vox reports:

 In New York State Rifle & Pistol Association v. Bruen in 2022, the Supreme Court tossed out the old two-step framework in favor of a new test that centers the history of English and early American gun laws.

Under this new framework, the government has the burden of proving that a gun regulation “is consistent with this Nation’s historical tradition of firearm regulation,” or else that regulation must be struck down. Bruen, moreover, strongly suggests that a gun law must fall if it addresses a “general societal problem that has persisted since the 18th century” and the government cannot identify a “distinctly similar historical regulation addressing that problem.”

Moreover, Bruen said, “if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.”

If courts take this framework seriously, then it is questionable whether any law seeking to prevent domestic abusers from owning firearms may be upheld. The early American republic was a far more sexist place than America in 2023, and it had far fewer laws protecting people from intimate partner violence.

Indeed, until 1871, when the Alabama Supreme Court ruled that a husband and wife “may be indicted for assault and battery upon each other,” it was legal in every state for married partners to beat their spouses.

But we can probably ban muskets and powder horns…..


Clarence And Ginni

A newsletter from TNR summed up my astonishment over recent revelations detailing the extent of Ginni Thomas’ involvement in the Big Lie. (I can never find URLs for newsletters–sorry about that.)

That stunning Washington Post piece by Bob Woodward and Robert Costa about Ginni Thomas’s text messages to Mark Meadows needs to be read at least twice to take in the full measure of corruption and venality it conveys. Here were people trying to overturn American democracy, saying that this was not politics but war—oh, and while saying all this, invoking the name of Jesus Christ.

The New Yorker described the reaction of legal ethicists to the revelation that Virginia (Ginni) Thomas–wife of Supreme Court Justice Clarence Thomas–“colluded extensively with a top White House adviser about overturning Joe Biden’s defeat of then President Donald Trump.”

On March 24th, the Washington Post and CBS News reported that they had copies of twenty-nine text messages between Ginni Thomas and White House Chief of Staff Mark Meadows. In those texts, she urged Meadows to help invalidate the results of the Presidential election, and employed QAnon conspiracy theories to justify her assertion that the election was an “obvious fraud.”

It was necessary, she told Meadows, to “release the Kraken and save us from the left taking America down.” Ginni Thomas’s texts to Meadows also refer to conversations that she’d had with “Jared”—possibly Trump’s son-in-law Jared Kushner, who also served as a senior adviser to the Administration. (“Just forwarded to yr gmail an email I sent Jared this am.”)

Not surprisingly, the legal ethicists quoted in the New Yorker article were aghast; all of them agreed that–at a minimum–Clarence Thomas would have to recuse himself from participating in any case involving Trump, January 6th or the election. (In any sane political environment, these revelations would immediately generate an impeachment of Thomas, but given the extent to which partisanship reigns supreme in today’s Senate, the prospects of that outcome seem dim.)

Supreme Court Justices aren’t bound by the judicial code of conduct that applies to all other federal judges, which mandates that they recuse themselves from participating in any cases in which personal entanglements could cause a fair-minded member of the public to doubt their impartiality. Yet Justices are subject to a federal law that prohibits them from hearing cases in which their spouses have “an interest that could be substantially affected by the outcome of the proceeding.” The statute, 28 U.S.C. section 455, also requires them to disqualify themselves from any proceedings in which their “impartiality might reasonably be questioned.”

Some of us have questioned Clarence Thomas’ “impartiality” for many years; the recent disclosures would seem to vindicate our suspicions.

Clarence Thomas was the only Justice to dissent from a Supreme Court decision allowing the House investigative committee to obtain records of Trump’s communications relating to the 2020 election results. It is very possible that those records included communications implicating Ginni Thomas in improper or illegal activities. And Thomas strongly dissented when the Court refused to hear a case filed by Pennsylvania Republicans trying to disqualify mail-in ballots.

Richard Hasen, an expert in election law who teaches at the University of California, Irvine, also believes that Justice Thomas should never have participated in the case weighing whether Congress had the right to review Trump’s papers. Hasen told me, “Given Ginni Thomas’s deep involvement in trying to subvert the outcome of the 2020 election based upon outlandish claims of voter fraud, and her work on this with not only activists but the former President’s chief of staff, Justice Thomas should not have heard any cases” involving disputes over the 2020 election or Congress’s investigation of the January 6th riots. 

A post at Juanita Jean addressed the “coincidence” of Clarence Thomas’ recent hospitalization and emergence of these texts.The post noted that, despite repeated press attempts to get information about the infection that landed Thomas in the hospital,  the requests have been met with silence.–a very unusual circumstance when the health of a Supreme Court Justice is at issue. (Ruth Bader Ginsberg’s every sniffle was reported.)

 Gallup polling shows confidence in the Court hitting an all-time low–continuing a slide that began with the partisan decision in Bush v. Gore, and accelerating through the theft of what should have been Merrick Garland’s seat and the subsequent elevation of a frat-boy beer lover and a cultish theocrat to the high court.

A column from the New York Times sums it up

Yes, married people can lead independent professional lives, and it is not a justice’s responsibility to police the actions of his or her spouse. But the brazenness with which the Thomases have flouted the most reasonable expectations of judicial rectitude is without precedent. From the Affordable Care Act to the Trump administration’s Muslim ban to the 2020 election challenges, Ms. Thomas has repeatedly embroiled herself in big-ticket legal issues and with litigants who have wound up before her husband’s court. All the while, he has looked the other way, refusing to recuse himself from any of these cases. For someone whose job is about judging, Justice Thomas has, in this context at least, demonstrated abominably poor judgment.