Tag Archives: Supreme Court

How Has It Come To This?

Constitution, Public Policy and Governance, , ,

I’ve posted a lot about electoral structures that are currently enabling a distinct minority of Americans to govern the rest of us. One of those systematic distortions–gerrymandering–has been enabled by a judiciary unwilling to say what we all can see: that the practice is contrary to “one person, one vote” and thus the Constitution.

What’s relatively new is the willingness of the GOP to publicly defend its attacks on democracy.

In Wisconsin, Republicans have benefitted from a combination of extreme gerrymandering and the political complicity of a state Supreme Court dominated by Rightwing judges. A liberal judge just won a seat on that body (by a surprisingly large margin in a state where close elections have been the norm), and Republicans threatened to impeach her–before she can participate in a single case.

As an essay in the Guardian explains:

In 2011, Republicans gerrymandered Wisconsin’s state legislature so badly that the party can win supermajorities despite losing the popular vote, as it did in 2018. Voters have fought back, and earlier this year they elected Janet Protasiewicz to the state supreme court, ushering in a new liberal majority which looked poised to finally overturn the gerrymander and bring democratic regime change to Madison.

But Wisconsin Republicans have no intention of seeing their undeserved power slip away. They’re proposing to impeach Protasiewicz on spurious charges before she has ruled on a single case, paralyzing the court and leaving the gerrymander intact.

When Trump argued that he was the real winner of the election because the votes of people living in Democratic-leaning urban areas were somehow fraudulent and should not count, he was repeating arguments that Wisconsin Republicans had already honed. The speaker of the state assembly, Robin Vos, has explained that the state’s gerrymander is fair because “if you took Madison and Milwaukee out of the state election formula, we would have a clear majority”. Because Madison and Milwaukee are the parts of the state with the largest concentration of non-white voters, Vos has revealed what the Wisconsin gerrymander is really about: race.

No surprise there. The urban/rural divide isn’t just about racism, but rural racial grievance explains a lot.

Per Talking Points Memo, the election of a liberal judge to the state’s high court infuriated the beneficiaries of Wisconsin’s undemocratic gerrymandering.

For months, Republicans have been plotting how best to overturn her election, as two redistricting lawsuits were immediately filed at the state’s high court. In recent weeks, they’ve been coalescing around impeaching her, settling on the rationale that she called the state’s maps “rigged.” Notably, state Republicans have not brought the same ire to Justices Rebecca Bradley and Brian Hagedorn continuing to preside over abortion cases after likening abortion to the Holocaust and calling Planned Parenthood a “wicked organization,” respectively. 

The GOP is threatening to impeach both Protasiewicz, the judge, and Evers, the Democratic governor (since you can’t gerrymander statewide elections, voters were able to elect a liberal justice and a Democratic Governor). “The threat of actual democracy has convulsed the state government, while state Democrats express their outrage from their manufactured permanent minority.”

The use of skewed election systems to suppress the voices of minority voters is not new to the U.S. Wisconsin is only a blatant example.

Like their predecessors in other states, Wisconsin Republicans have been remarkably frank about their intention of ensuring that minorities stay in their place. When Democratic gubernatorial candidate Tony Evers powered to victory in 2018 with massive wins in Madison and Milwaukee, the Republican legislature used a lame-duck session to strip him of much of his power. Not content with that, Evers’ Republican opponent in 2022, Tim Michels, promised that if he was elected then Republicans in Wisconsin “will never lose another election”.

Give him credit for transparency…

Republicans aren’t even pretending any more. It’s not just Wisconsin–but what happens in Wisconsin will be a test case, telling us whether these increasingly brazen attempts to secure minority rule will succeed.

The author of the Guardian essay–a British historian of the United States–notes that Wisconsin Republicans were among the most fervent backers of Trump’s undemocratic coup attempt, “but they needed no lessons from him in how to suppress the will of the people.” 

The Republican party’s belief in its own god-given right to rule – and that of its white, rural electorate – found its most dangerous expression in Trump’s attempt to overthrow the 2020 election, but it long predated him. It will outlive him unless it is chastened by accountability and defeat at every turn. All eyes are now on Wisconsin and Janet Protasiewicz to see if it will be. 

If the Wisconsin GOP’s shameless abandonment of even a pretense of playing by the rules succeeds, we’re in for a world of hurt.

And The Hits Keep Coming…

Public Policy and Governance, , , ,

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.

 

The Roberts Court

Constitution, , ,

Linda Greenhouse is an astute observers of the U.S. Supreme Court, so when I see her byline on an article, I read it carefully. Last Sunday, she provided an 18-year overview of the Roberts Court,— providing readers with a chilling description of what Americans have lost since John Roberts assumed the position of Chief Justice.

Greenhouse noted that the just-completed term was in many respects the capstone of Roberts’ 18-year tenure. As she writes,

To understand today’s Supreme Court, to see it whole, demands a longer timeline. To show why, I offer a thought experiment. Suppose a modern Rip Van Winkle went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.

When Roberts joined the Court, Greenhouse says there was a “robust conservative wish list.” She then enumerates the items on that wish list:  overturning Roe v. Wade, reinterpreting the Second Amendment in order to turn gun ownership into a constitutional right, the elimination of race-based affirmative action in university admissions, the elevation of religion within the legal landscape (Greenhouse doesn’t say it, but what was wanted was the elevation of Christianity–not just “religion”)–and a drastic reduction of federal agencies’ regulatory power.

Despite the fact that William Rehnquist, the prior Chief Justice, was a committed conservative, the Court had not accomplished a single one of those goals. Greenhouse describes the case decisions that had failed to accomplish that conservative wish list– establishing precedents that would seem to preclude their realization.

That was how the world looked on Sept. 29, 2005, when Chief Justice Roberts took the oath of office, less than a month after the death of his mentor, Chief Justice Rehnquist. And this year? By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court.

t’s worth reviewing how the court accomplished each of the goals. It deployed a variety of tools and strategies. Precedents that stood in the way were either repudiated outright, as the Dobbs v. Jackson Women’s Health Organization decision did last year to Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant — abandoned, in the odd euphemism the court has taken to using. In its affirmative action decision declaring race-conscious university admissions to be unconstitutional, Chief Justice Roberts’s majority opinion did not overturn the 2003 Grutter decision explicitly. But Justice Thomas was certainly correct in his concurring opinion when he wrote that it was “clear that Grutter is, for all intents and purposes, overruled.”

Likewise, the court has not formally overruled its Chevron decision. Its administrative-law decisions have just stopped citing that 1984 precedent as authority. The justices have simply replaced Chevron’s rule of judicial deference with its polar opposite, a new rule that goes by the name of the major questions doctrine. Under this doctrine, the court will uphold an agency’s regulatory action on a major question only if Congress’s grant of authority to the agency on the particular issue was explicit. Deference, in other words, is now the exception, no longer the rule.

Lawyers point out that the major questions doctrine was invented out of whole cloth; it is certainly nowhere to be found in the Constitution or prior case law. Greenhouse notes its utility to a rogue Court: “how to tell a major question from an ordinary one? No surprise there: The court itself will decide….it’s hard to envision an issue important and contentious enough to make it to the Supreme Court not being regarded as major by justices who flaunt their skepticism of the administrative state.”

You really need to click through and read the entire essay, because Greenhouse does a masterful job of explaining the disingenuous reasoning that allowed the Court’s majority to impose its reactionary policy preferences while ignoring “settled” law.

The web designer case was among the most egregious:

The court has created a religious opt-out from compliance with laws that govern the commercial marketplace…. [Gorsuch’s] opinion cites many First Amendment precedents, including the right not to salute the flag, the right of private parade organizers not to include a gay organization among the marchers and the right of the Boy Scouts not to retain a gay scoutmaster.

But none of those precedents are relevant, because none involved discrimination by a commercial entity.

The essay concludes that the Court “has become this country’s ultimate political prize…  from the perspective of 18 years, that conclusion is as unavoidable as it is frightening.”

Absent a Blue wave in 2024, it will only get worse.

 

The Court Plays ‘Let’s Pretend’

Constitution, , , ,

This rogue Supreme Court no longer shocks me; at this point, I’m numb with disbelief.

The day after overturning affirmative action for Black students (while leaving preferences benefitting Whites intact), the Court didn’t simply ignore decades of  precedent, it went even further afield, ignoring a constitutional rule against issuing “advisory opinions” in order to privilege a “sincere” religious belief.

Robert Hubbell addressed the constitutional principle:

Friday, the Court’s reactionary majority issued opinions in two cases that did not include a constitutional prerequisite to the Court’s jurisdiction—that the issue to be decided presents an actual “case or controversy.” That requirement is set forth plainly and simply in the Constitution. You can look it up.

Instead, the reactionary majority ignored the absence of jurisdiction and proceeded to issue decisions in fake controversies because they can. Looking for deeper meaning is pointless. The reactionary majority has reduced the rule of law to brute force in the service of religious nationalism.

In the days before the Court issued its opinion in 303 Creative, multiple media outlets had confirmed that the entire “case” was bogus. As Heather Cox Richardson explained, not only was the  online business non-existent, the “complaint” had been manufactured.

Smith claims she wants to start the business because “God is calling her ‘to explain His true story about marriage.’” She alleges that in 2016, a gay man approached her to make a website for his upcoming wedding, but yesterday, Melissa Gira Grant of The New Republic reported that, while the man allegedly behind the email does exist, he is an established designer himself (so why would he hire someone who was not?), is not gay, and married his wife 15 years ago. He says he never wrote to Smith, and the stamp on court filings shows she received it the day after she filed the suit.

The Guardian quoted him:

“I can confirm I did not contact 303 Creative about a website,” he said. “It’s fraudulent insomuch as someone is pretending to be me and looking to marry someone called Mike. That’s not me.

“What’s most concerning to me is that this is kind of like the one main piece of evidence that’s been part of this case for the last six-plus years and it’s false,” he added. “Nobody’s checked it. Anybody can pick up the phone, write an email, send a text, to verify whether that was correct information.”

So here we have a case that is entirely prospective, with a fact situation that is falsified–yet radical Justices were so eager to undermine government’s ability to protect marginalized populations from discrimination that they were willing to ignore a basic constitutional principle. As Hubbell correctly notes, the “decision authorizes American business owners to discriminate against LGBTQ people. Period. It is a first step, taken in bad faith and wrapped in lies.”

Richardson reminds us that segregation used to be defended as a deeply-held religious belief.

The widely criticized Court withheld issuance of its most indefensible decisions to the last, and the shameful and dishonest holding in 303 Creative was only one. The Court also ignored a clear lack of jurisdiction in the student loan forgiveness case. The actual party in interest—the corporation that serviced the student loan debt—had refused to file suit. Roberts ruled that the state of Missouri could assert the interests of a party not before the Court –a party that claimed no injury. 

The lack of jurisdiction wasn’t the only problem with that case: constitutional analyst Ian Millhiser wrote that the “decision in Biden v. Nebraska

is complete and utter nonsense. It rewrites a federal law which explicitly authorizes the loan forgiveness program, and it relies on a fake legal doctrine known as ‘major questions’ which has no basis in any law or any provision of the Constitution.”

The majority’s repeated dishonesty is simply stunning. Norman Ornstein said it best:

It is not just the rulings the Roberts Court is making,” he tweeted. “They created out of [w]hole cloth a bogus, major questions doctrine. They made a mockery of standing. They rewrite laws to fit their radical ideological preferences. They have unilaterally blown up the legitimacy of the Court.

The arrogance is breathtaking.

Many Americans will undoubtedly cheer these wildly improper decisions because the results accord with their own policy preferences. That is very short-sighted; the Supreme Court was not created to be a super-legislature, and– as a colleague from my ACLU days used to warn– poison gas is a great weapon until the wind shifts.

Robert Hubbell is right: “The time for hand wringing and half-steps has passed. Real people have lost real liberties—starting with Dobbs and ending 303 Creative. If we do not stand up to protect them with every ounce of our will, we deserve what’s coming.”

 

Reforming The Court

Random Blogging, , ,

Recent disclosures ranging from ethical improprieties to clear corruption have lent urgency to longstanding calls to reform the Supreme Court.

Before those disclosures, most of the lawyers and scholars advocating for such reforms did so on the basis of work product–including the dwindling number of decisions the Court issues annually.

Even before the recent disclosures, legal theorists were concerned with the Court’s loss of democratic legitimacy. It isn’t just the appalling shenanigans of Mitch McConnell; Neil Gorsuch was the first Supreme Court justice in American history to be nominated by a president who had lost the popular vote and confirmed by senators representing less than half of the country. Brett Kavanaugh was second, and Amy Coney Barrett was third. 

 The subsequent evidence of Thomas’ and Alito’s corrupt behavior has been especially unsettling.

I used to defend lifetime appointments to the federal judiciary to my students, pointing out that security shielded jurists from political pressure. But  justices live a lot longer than they used to, and– as my lawyer son recently pointed out– the security afforded by those lifetime appointments also provides an incentive to ignore the rules. With a closely divided Congress, and in the absence of the enforceable ethical codes that bind lower-court judges, they are effectively shielded from consequences. As a practical matter, they’re above the law.  

It’s time to consider reforms.

An article by the Brennan Center, published just after the leak of Dobbs suggested several. The article began by describing the far-right Federalist Society’s decades’ long, successful effort to capture the Court.

Beginning in the 1970s, corporate interests wary of 1960s socio-political movements developed and funded comprehensive infrastructure to advance a far-right agenda, focusing on the judiciary as an instrument for social, economic, and political change. A crucial component of the plan to push back against left-leaning legal successes was the organization and mobilization of conservative lawyers and judges who could ensure that corporate America’s preferred socioeconomic and political order was upheld in the courts. It is in this ecosystem that the Federalist Society emerged and built an empire around shepherding future leaders of the conservative legal movement into judgeships. All six justices appointed by Republican presidents are current or former Federalist Society members.

Some scholars recommended reforms that would constrain the Supreme Court’s ability to invalidate certain types of legislation. Others would regularize Supreme Court appointments and require periodic judicial turnover.  Still others would expand the Court.

One of the most popular suggestions would impose term limits–terms long enough to insulate jurists from political passions–18 years is popular– but short enough to avoid the negatives of lifetime tenure.

An article in Politico argued that a proposal to impose term limits could generate bipartisan support.

The most common version of this reform contemplates justices serving nonrenewable 18-year terms, staggered so that one term ends every two years. This would mean that presidents would get to nominate new justices in the first and third years of their own administrations. Retirements and nominations would occur like clockwork. The result would be a court whose membership, at any given time, would reflect the selections of the past 4 1/2 presidential administrations.

There is a significant hurdle to overcome.

Because Article 3 of the Constitution confers life tenure upon all federal judges, term limits would likely require a constitutional amendment. Yes, constitutional amendments are hard to enact. We have not amended our Constitution since 1992, and we have done so only once in the past half-century. But there is reason — even in these politically polarized times — to believe that constitutional reform is possible.

As the essay from the Brennan Center noted, however. court reform movements have a long history at the state and federal level – and have often seemed impossible until changes in the political environment made them all but inevitable.

And as Politico reported,

What is more, almost every state in the union imposes term limits on its state supreme court justices, a mandatory retirement age, or both. Only Rhode Island has a system of life tenure akin to the federal model. It should come as no surprise, therefore, that when the National Constitution Center held an exercise in 2020 for drafting new constitutions, both the conservative and progressive teams adopted 18-year limits.

It is abundantly clear that we have reached a crisis point. The current court has issued a string of decisions that are not just wildly unpopular, but at odds with decades of precedent.  it has increased its misuse of the shadow docket, and all but declared war on the agencies of the administrative state. Worst of all, sitting Justices have engaged in activities that range from demonstrably corrupt (Thomas, Alito) to ethically questionable (Roberts, Gorsuch, Barrett, Sotomayor).

It’s time for substantial reforms.