U.S. High Courts, Cases 2020-22

 

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supreme court graphicNews and comment regarding the Supreme Court of the United States (SCOTUS) are shown below, with commentary also on major issues involving U.S. federal courts. The links to a sample of significant reports are drawn primarily from major national outlets or from those featuring specialized expertise. They are arranged in reverse chronological order. Included also are notable reports involving lower federal courts.

-- Andrew Kreig, J.D., M.S.L. / Justice Integrity Project editor

Note: Excerpts below are from the authors' words except for subheads and Editor's notes" such as this. This summary of U.S. Supreme Court and other high court cases encompasses news stories and commentary in 2020. For our complete listing of periods extending back to 2018, kindly visit these links: 2018, 2019 and 2020

 

2020-2021-2022

 

May

May 18

 supreme court headshots 2019

washington post logoWashington Post, Opinion: Voters are finally seeing how political the Supreme Court really is, Paul Waldman and Greg Sargent, May 18, 2022.
Things are getting intense over at the Supreme Court, to the evident consternation of the conservative justices. When the leak of a draft opinion that would overturn Roe v. Wade unleashed public anger, Justice Clarence Thomas warned darkly that if the public allowed itself to believe the court was getting politicized, civil breakdown would soon follow.

But here’s the reality: The Supreme Court has been extremely political for a long time. What has the justices upset is that the public may be finally getting wise to that fact.

New polls underscore the point. A survey just released by Quinnipiac University finds that 63 percent of Americans believe the Supreme Court is mainly motivated by politics, while only 32 percent think it’s mainly motivated by law. Perhaps as a result, 69 percent say the justices should be term limited.

This comes after a recent Yahoo News/YouGov poll found that 74 percent of respondents said the court had become “too politicized.” Confidence in the court has fallen by almost 20 percentage points since 2020.

Now imagine how public sentiment might be affected if and when the court strikes down Roe. The Quinnipiac poll finds that 65 percent agree with Roe; surely such a move would drag perceptions of the court further into the political mud.

In another reflection of how this could shift our politics, a coalition of state-based pro-choice groups will come out on Thursday in support for Supreme Court expansion.

May 17

washington post logoWashington Post, Opinion: The Supreme Court just made corruption a little easier, Ruth Marcus, right, May 17, 2022.Sen. Ted Cruz’s (R-Tex.) victory ruth marcusat the Supreme Court this week won’t be one of the blockbuster rulings of the current term. That’s precisely why it deserves attention. The court’s decision enables blatant political corruption in the supposed service of the First Amendment. That it is not bigger news is a measure of how inured we have become to this conservative court.

Conservative justices have been on a decades-long mission to dismantle campaign finance restrictions, which they view as a danger to free speech. Limits on how much individuals can contribute directly to candidates remain in place, but with ample ways for deep-pocketed donors to get around those constraints.

Remember Citizens United v. Federal Election Commission, the 2010 ruling in which the court said corporations could not be barred from spending unlimited amounts to help elect favored candidates, on the laughable theory that such independent spending wasn’t corrupting? That opened the door to multimillion-dollar campaigns by so-called super PACs.

Four years later, the court struck down overall limits on the amount that individuals could contribute directly to federal candidates, political parties and PACs. These “aggregate limits” — $123,200 in 2014 — interfered with donors’ freedom of speech, the court ruled, and weren’t justified by the need to prevent corruption. Now, a determined wealthy donor can give millions directly to a favored party and its candidates in the convenient form of one humongous check.

The campaign finance rule struck down in Federal Election Commission v. Ted Cruz for Senate, decided Monday, is more obscure, but the corruption it enables is even more sordid. The issue involves candidates who lend money to their campaigns. They can raise money even after an election to repay themselves, but only up to $250,000.

Justice Elena Kagan, writing for the three dissenting liberals, offered a succinct explanation of why: “Political contributions that will line a candidate’s own pockets, given after his election to office, pose a special danger of corruption. The candidate has a more-than-usual interest in obtaining the money (to replenish his personal finances), and is now in a position to give something in return. The donors well understand his situation, and are eager to take advantage of it. In short, everyone’s incentives are stacked to enhance the risk of dirty dealing. At the very least — even if an illicit exchange does not occur — the public will predictably perceive corruption in post-election payments directly enriching an officeholder.”

The conservative majority considered the repayment rule with its usual combination of determined myopia and instinctive hostility to campaign finance restrictions. The opinion, by Chief Justice John G. Roberts Jr., both exaggerated the burden on candidates’ free speech rights and minimized the corrupting potential of such post-election donations.

May 15

 

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washington post logoWashington Post, State constitutions loom as the next front in abortion battle, Kimberly Kindy, May 15, 2022 (print ed.). Several states are asking voters in coming months to amend state constitutions in hopes of permanently changing abortion rights.

With the Supreme Court poised to overturn Roe v. Wade this summer, state legislatures have already introduced hundreds of bills to establish new abortion laws. But several states are going further, asking voters in coming months to amend their state constitutions in hopes of permanently changing abortion rights.

Upcoming constitutional ballot measures in Kansas and Kentucky seek to eliminate state court challenges to laws restricting or banning abortion. Another in Vermont — the first of its kind — would protect the right to an abortion.

At least 12 state legislatures this year introduced bills to place constitutional amendments about reproductive rights on upcoming ballots. Those efforts are expected to grow in both red and blue states in the months ahead, abortion experts and advocates said.

Soon after a leaked Supreme Court draft opinion last week suggested an end to federally protected abortion rights, California Gov. Gavin Newsom (D) said he will join Democratic lawmakers to seek a constitutional amendment in his state, pledging that “California will not stand idly by as women across America are stripped of their rights.”

The next frontier for the antiabortion movement: A nationwide ban

“It’s going to pick up on both sides,” said Eric Scheidler, executive director of the Pro-Life Action League. “Court battles over abortion are going to grow in state courts, so efforts to shore up state constitutions is also going to grow.”

Unlike a Supreme Court ruling or the dozens of abortion bills passed in statehouses this year, the constitutional amendments will directly test voters’ views on abortion rights.

That prospect has mobilized sizable campaigns, as more than $1 million has been disclosed by political action committees dedicated to the August ballot measure in Kansas, with antiabortion groups outpacing opponents by a 2-to-1 margin. Thousands more have been reported in Kentucky and Vermont, which vote in November. In all three states, antiabortion groups, including Catholic and Evangelical Christian organizations, are lining up against Planned Parenthood, the American Civil Liberties Unionand other organizations.

Enshrining abortion restrictions or rights within state constitutions makes the measures nearly intractable, experts say, unless Congress passes a national ban or protection law. Whereas state laws can be upended after a change in party control, constitutional amendments generally take years to get on the ballot.

washington post logoWashington Post, Opinion: Roe’s impending reversal is a 9/11 attack on America’s social fabric, Dana Milbank, right, May 15, 2022 (print ed.). dana milbank newestWashington’s reaction to the leaked Supreme Court draft opinion overturning Roe v. Wade has been typically myopic.

Republicans first tried to make people believe that the issue wasn’t the opinion itself but the leak. Now they’re absurdly trying to portray Democrats as supporters of infanticide. Democrats, in turn, squabbled among themselves before a show vote on a doomed abortion rights bill. And the news media have reverted to our usual horse-race speculation about how it will affect the midterms.

This small-bore response misses the radical change to society that Justice Samuel Alito and his co-conspirators are poised to ram down the throats of Americans. Their stunning action might well change the course of the midterms — but more importantly, it is upending who we are as a people.

Assuming little changes from the draft, overturning Roe would be a shock to our way of life, the social equivalent of the 9/11 attacks (which shattered our sense of physical security) or the crash of 2008 (which undid our sense of financial security). As epoch-making decisions go, this is Brown v. Board of Education, but in reverse: taking away an entrenched right Americans have relied upon for half a century. We remember Brown because it changed us forever, not because it altered the 1954 midterms.

It’s impossible to say what will result from the trauma of overturning Roe, but the effects will be far reaching and long lasting. Americans are not prepared for this. Though people have been aware of the possibility of Roe falling, as recently as last month, just 20 percent thought it very likely or definite that it would be overturned, an Economist-YouGov poll found. Even now, after Alito’s draft, only 57 percent of voters in a Morning Consult-Politico poll believe it likely Roe will be overturned.

The political jockeying misses the overarching significance: that the expectation of reproductive freedom, of a woman’s autonomy over her own body, built into the American psyche over two generations, is about to be shattered. “This is intrinsically horrific,” says Neal Katyal, a Georgetown University law professor who served as acting solicitor general during the Obama administration. “This huge right is being taken away. Everyone has socialized expectations that have crystallized around this. … It totally disrupts social expectations.”

There is simply no precedent for such a court-induced shock. The 2013 Shelby County v. Holder case eviscerated enforcement of the Voting Rights Act of 1965, making it easier for states and counties to disenfranchise Black voters. But the impact of that case (involving “preclearance”), though devastating, is indirect and complex. Overturning Roe is dramatic, stark and clear.

I hope voters punish Republicans in November for this assault on Americans’ freedom, and there’s evidence they will. A new Monmouth poll shows abortion has leaped to being the top concern of 25 percent of voters, virtually tied with the economy. But it took years (and a stolen seat or two) to build this destructive Supreme Court. The building backlash will have to be just as sustained.

May 14

 

Associate Supreme Court Justice Clarence Thomas (Pool photo by Erin Schaff via Getty Images).

Associate Supreme Court Justice Clarence Thomas (Pool photo by Erin Schaff via Getty Images).

washington post logoWashington Post, Clarence Thomas says Supreme Court leak has eroded trust in institution, Robert Barnes, May 14, 2022. ‘You begin to look over your shoulder. It’s like kind of an infidelity,’ he said in speech to conservatives.

The leak of a draft opinion regarding abortion has turned the Supreme Court into a place “where you look over your shoulder,” Justice Clarence Thomas said Friday night, and it may have irreparably sundered trust at the institution.

“What happened at the court was tremendously bad,” Thomas said in a conversation with a former law clerk at a conference of conservative and libertarian thinkers in Dallas. “I wonder how long we’re going to have these institutions at the rate we’re undermining them. And then I wonder when they’re gone or destabilized, what we’re going to have as a country.”

It was second time in a week that Thomas has decried declining respect for “institutions” — he made similar remarks at a conference of judges and lawyers last week.

Thomas says respect for institutions is eroding

Thomas, 73, said the leak has exposed the “fragile” nature of the court.

“The institution that I’m a part of — if someone said that one line of one opinion would be leaked by anyone, you would say, ‘Oh, that’s impossible. No one would ever do that,’” Thomas said. “There’s such a belief in the rule of law, belief in the court, belief in what we’re doing, that that was verboten.”

He continued: “And look where we are, where now that trust or that belief is gone forever. And when you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity, that you can explain it, but you can’t undo it.”

He made the remarks Friday night at a conference sponsored by the American Enterprise Institute, the Manhattan Institute and the Hoover Institution. In front of an approving crowd, he was pointed and accusatory; he seemed to blame law clerks who work at the court for the leak of a draft opinion by Justice Samuel A. Alito Jr. that would overturn Roe v. Wade, and he appeared distrustful of some of his colleagues.

“Anybody who would, for example, have an attitude to leak documents, that general attitude is your future on the bench,” Thomas said. “And you need to be concerned about that. And we never had that before. We actually trusted — we might have been a dysfunctional family, but we were a family.”

Just as Alito had done in a speech the night before at the Antonin Scalia Law School at George Mason University in Virginia, Thomas skipped past the usual bonhomie that justices express about their colleagues — that they disagree vigorously but respect and admire each other.

Asked about that by a questioner, who wondered how a friendly respect for ideological differences could be fostered in Congress and other institutions, Thomas replied:

“Well, I’m just worried about keeping it at the court now.”

washington post logoWashington Post, Opinion: Justice Thomas thinks he’s being ‘bullied’? He could use a history lesson, Colbert I. King, right, May 14, 2022 (print ed.). colbert king twitterThe leaked Supreme Court draft opinion that would overturn Roe v. Wade prompted some reactions here in Washington, all of which were on the periphery of the issue at hand — a constitutional right to abortion. But still worth noting, given what’s at stake.

D.C. Council member Brianne K. Nadeau (D-Ward 1) introduced a bill that would create a “human rights sanctuary” for anyone traveling to our nation’s capital to get an abortion.

Meanwhile on Capitol Hill, Senate Majority Leader Charles E. Schumer (D-N.Y.) used Justice Samuel A. Alito Jr.’s leaked draft to underscore the vulnerability of reproductive rights. The Democrats’ bill to codify abortion rights into federal law won 49 votes, well short of the 60 necessary to proceed under Senate rules. The move, however, was not about enacting the Women’s Health Protection Act. Schumer hopes to spur voters off their couches to elect more pro-choice legislators in the fall.

Another eye-widening occasion was Justice Clarence Thomas’s musings at the 11th Circuit Judicial Conference that respect for institutions is waning. Thomas bemoaned people who are unwilling to “live with outcomes we don’t agree with.” Said Thomas, clearly with Alito’s draft in mind, non-acceptance of the high court’s decisions “bodes ill for a free society.” It can’t be, he said, that institutions “give you only the outcome you want, or can be bullied” to do the same.

May I introduce, or reintroduce, Thomas and anyone else who thinks like he does, to the Southern Manifesto of 1956?

Talk about unwilling to “live with outcomes.”

The Southern Manifesto, signed by 19 senators and 77 House members, was a fullthroated condemnation of the Supreme Court’s 1954 Brown v. Board of Education school-desegregation decision, which it denounced as “a clear abuse of judicial power.” Those 96 federal lawmakers encouraged states to resist implementing the court’s mandates.

Thomas bleats about being “bullied.” What about “Impeach Earl Warren”?

Following the Brown decision, written by Chief Justice Warren, “Impeach Earl Warren signs” appeared across the South. The impact of the Warren court was felt not only on issues of racial equality but also on political and personal rights, as well as criminal justice. Warren was publicly vilified by right-wing groups across the country.

May 12

ny times logoNew York Times, A Leaky Supreme Court Starts to Resemble the Other Branches, Adam Liptak, Annie Karni, May 12, 2022 (print ed.). The disclosure of a draft opinion on Roe v. Wade, legal experts said, was evidence that the court is not much different from other Washington institutions.

The Supreme Court used to be a magisterial temple of silence, capable of guarding its secrets until it was ready to disclose them. It leaked less than intelligence agencies, old hands in Washington would say, in a tone of awe and envy.

Members of the court, too, took pride in running a very tight ship.

“Those who know don’t talk,” Justice Ruth Bader Ginsburg used to say. “And those who talk don’t know.”

Now, as the court appears to be on the cusp of eliminating the constitutional right to abortion, it looks sparsely different from the other branches: Rival factions leak and spin sensitive information in the hope of gaining political advantage, at the cost of intense scrutiny of internal operations and questions about whether its decisions are the product of reason or power.

“The court is now no better than the other institutions of government,” said Sherry F. Colb, a law professor at Cornell.

The bare-knuckled partisan fights over recent Supreme Court confirmations appear to have followed the justices to their chambers. The disclosure of a draft opinion that would overrule Roe v. Wade, along with related reports of the court’s internal workings, has transformed a decorous and guarded institution into one riven by politics.

The justices are scheduled to meet in a private conference Thursday morning, their first meeting since Politico published a draft opinion last week that would overrule Roe v. Wade, the 1973 decision that established a constitutional right to abortion.

As at all such conferences, no one else is allowed to enter the room. The idea is to do everything possible to shield the privacy of the justices’ deliberations.

That idea has been undermined by a series of disclosures that appear to be happening in almost real time.

They started in a carefully couched and conditional but nonetheless knowing editorial on April 26 in The Wall Street Journal. It expressed concern that Chief Justice John G. Roberts Jr. was trying to persuade Justices Brett M. Kavanaugh and Amy Coney Barrett to join him in upholding a Mississippi law that bans most abortions after 15 weeks but to stop short of overruling Roe outright.

“Our guess,” the editorial said, was that Justice Samuel A. Alito Jr. would be assigned the majority opinion if the chief justice did not gain an ally. Good guess.

The Politico bombshell followed six days later. In addition to posting the draft opinion, which was dated Feb. 10, Politico reported that five members of the court — Justices Alito, Kavanaugh, Barrett, Clarence Thomas and Neil M. Gorsuch — had voted to overturn Roe shortly after the challenge to it was argued in December.

“That lineup remains unchanged as of this week,” Politico reported last week. On Wednesday, it provided an update: “None of the conservative justices who initially sided with Alito have to date switched their votes.”

Politico added that Justice Alito has not circulated a revised version of his draft and that no other justice has circulated a concurring or dissenting opinion.

washington post logoWashington Post, Opinion: Republicans as ‘compassionate consensus builders’? E.J. Dionne Jr., right, May 12, 2022 (print ed.). It’s still early, but my ej dionne w open necknomination for the three most revealing words of the month are “compassionate consensus builder.”

That phrase comes from a memo leaked from the National Republican Senatorial Committee (NRSC), the group charged with helping the GOP win U.S. Senate races. In the wake of Politico’s publication of Justice Samuel A. Alito Jr.’s draft opinion overturning Roe v. Wade, the memo’s architects were trying to help Republican candidates protect themselves from the growing backlash.
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The committee advises every Republican candidate to “be the compassionate, consensus builder on abortion.” The document stresses that most Americans believe “we should care for and support pregnant women in difficult circumstances.”

Missing from the memo is anything concrete about what policies offering “care” and “support” might look like. And its use of capital letters in advising Republicans on what they should deny demonstrate the party’s defensiveness. It said: “Republicans DO NOT want to take away contraception” and “Republicans DO NOT want to take away mammograms or other health care provided specifically to women.” Yes, and they “DO NOT want to throw doctors and women in jail.”

washington post logoWashington Post, She worked for years to overturn Roe, but now worries over next steps, Michelle Boorstein, May 12, 2022 (print ed.). The possibility of Roe’s fall has made it harder for antiabortion advocates to ignore their differences. What does it mean to be for life now?

 washington post logoWashington Post, Youngkin, Hogan ask Justice Dept. to halt protests at justices’ homes, Laura Vozzella, Erin Cox and Dan Morse, May 12, 2022. The governors of Virginia and Maryland called on Attorney General Merrick Garland to enforce a federal law prohibiting protests outside the homes of Supreme Court justices.

May 11

 

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washington post logoWashington Post, Editorial: The war on rights that’s coming if Roe is overturned, Editorial Board, May 11, 2022. With the Supreme Court considering whether to overturn Roe v. Wade, Louisiana House Republicans advanced this past week an antiabortion bill of astonishing sweep.

The proposal would rewrite the state’s homicide statute to “ensure the right to life and equal protection of the laws to all unborn children from the moment of fertilization by protecting them by the same laws protecting other human beings.” In other words, not only would the bill empower Louisiana prosecutors to charge women who get abortions with murder, it appears to declare the use of in-vitro fertilization, intrauterine devices and emergency contraception to be homicide, too.Sign up for a weekly roundup of thought-provoking ideas and debates

For half a century, Americans could more or less take for granted their right to terminate their pregnancies, seek help starting families or get IUDs. Many might not realize how dramatically overturning Roe would reshape American life. Some deny this reality, arguing that, should the Supreme Court repudiate Roe, as a draft majority opinion that leaked earlier this month suggests it might, the United States would resemble Europe, where first-trimester abortion is legal nearly everywhere.

In fact, overturning Roe would result in the immediate banning of abortion in the 13 states that have antiabortion laws designed to kick in as soon as Roe is gone. Republican leaders in Nebraska, South Dakota and Indiana are calling for legislative special sessions to pass sweeping new abortion restrictions.

And Louisiana shows that, given the option, right-wing lawmakers are poised to wage a broad war against reproductive rights that would horrify most Americans. It might be that wealthy people in states run by antiabortion zealots would be able to cross state lines to terminate their pregnancies or to seek other family planning options. (Though some Republicans want to try to ban that, too.) But poor people would be unable to get safe, legal abortions. On top of the health risks they would face seeking illicit abortions, in Louisiana these individuals might also risk being prosecuted for murder. Given that many women seek abortions because they would struggle to carry their pregnancies to term while caring for the families they already have, the bill would be a particularly cruel twist that would threaten the families who are least capable of facing such hardship.

Other than the makeup of the court, the only thing that has changed in the past half-century is that Roe has become a keystone decision for Americans’ personal rights. Overturning it now would wound the nation, worsen the country’s politics and make some of the most vulnerable Americans more so. It would be the height of gratuitous judicial activism.

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

Politico, Alito’s draft opinion overturning Roe is still the only one circulated inside Supreme Court, Josh Gerstein, Alexander Ward and Ryan Lizza, May 11, 2022. A rattled Supreme Court will meet Thursday for the first time since the abortion opinion was reported.

politico CustomThe Supreme Court is set to gather Thursday for the first time since the disclosure that it voted to overturn Roe v. Wade, and there’s no sign that the court is changing course from issuing that ruling by the end of June.

Justice Samuel Alito’s sweeping and blunt draft majority opinion from February overturning Roe remains the court’s only circulated draft in the pending Mississippi abortion case, POLITICO has learned, and none of the conservative justices who initially sided with Alito have to date switched their votes. No dissenting draft opinions have circulated from any justice, including the three liberals.

That could explain why no second draft of Alito’s majority opinion has been distributed, as typically the two sides react to one another’s written arguments and recast their own.

As the nine justices prepare for their scheduled, private, closed-door conference this week, they face one of the greatest crises in modern Supreme Court history, with an internal leak investigation under way, an agitated nation focused on whether the constitutional right to abortion is about to be overturned, and some justices facing angry protests at their homes.

“This is the most serious assault on the court, perhaps from within, that the Supreme Court’s ever experienced,” said one person close to the court’s conservatives, who spoke anonymously because of the sensitive nature of the court deliberations. “It’s an understatement to say they are heavily, heavily burdened by this.”

A second person close to the court said that the liberal justices “are as shocked as anyone” by the revelation. “There are concerns for the integrity of the institution,” this person said. “The views are uniform.”

At the center of the storm is Chief Justice John Roberts, whose power over the court’s decisions and operations has appeared to diminish as the court has shifted rightward and become more polarized.

In the Mississippi abortion case currently before the court, Dobbs v. Jackson Women’s Health Organization, it’s not clear if Roberts will join the liberal justices in dissent, craft his own solo opinion in the case or perhaps join a watered-down version of Alito’s draft.

ny times logoNew York Times, Why the Justice Department Is Unlikely to Investigate the Supreme Court Leak, Charlie Savage, Annie Karni, May 11, 2022. The internal inquiry led by the court’s marshal has limited tools, but there are challenges to opening a criminal investigation.

After a leak of a draft opinion showed that the Supreme Court was poised to end women’s constitutional right to abortion, some Republicans and conservative commentators called for a criminal investigation.

But even as Chief Justice John G. Roberts Jr. condemned the disclosure by Politico as “egregious,” he instead directed the Supreme Court marshal to lead an internal investigation. According to a person familiar with the matter, the court has not asked the Justice Department to open a criminal investigation or to lend the marshal support and resources.

A Supreme Court spokeswoman this week declined to answer questions about the status of the inquiry, including the number of people assigned to it and what the rules are — like whether it is up to each justice to decide whether to make themselves, their clerks and their relatives available for any questioning or device inspection.

What difference could a criminal investigation make?

The Justice Department has a cadre of agents with experience investigating leaks. By contrast, the Supreme Court marshal, Gail A. Curley, is a former national security lawyer for the Army whose office of about 260 employees primarily provides physical security for the justices and the court building.

washington post logoWashington Post, Perspective: The Supreme Court: Unreachable, inaccessible and frightening, Robin Givhan, May 11, 2022 (print ed.). The Supreme Court has shut itself off from the public. At a time when the country needs this judiciary of last resort more than ever, it has been surrounded with black, non-scalable fencing from which hang signs announcing that the area is closed. Just above the building’s stately pillars on its east side, etched into the stone, one can read the words, “Justice The Guardian Of Liberty.”

But for now, both justice and liberty are inaccessible by order of the marshal. And just now, it’s unclear precisely what the court is guarding other than its own flank in the face of a disconsolate populace.

The draft opinion that overturns Roe v. Wade leaked more than a week ago, and those who support abortion rights remain in a state of dismayed horror as they realize something they knew in their gut was coming might actually have arrived. Those who have spent the decades since the landmark 1973 decision, which affirmed a constitutional right to abortion, working to nullify a pregnant person’s bodily autonomy, now seem flustered and verklempt as they vacillate between delight and an existential what-now.

The Supreme Court, which sits just across the street from the U.S. Capitol complex, is of course just a building. The nine justices therein hold the authority. Nonetheless, the sight of this edifice surrounded by slick metal with law enforcement officers admonishing even joggers and dog walkers to keep to the far side of the street, just adds to the sense of relentless mayhem and disintegration that the country just can’t seem to shake. The security measures are yet another reminder that the we no longer fight fair. We engage in violence instead of debate. We prefer ad hominem attacks. We deny facts. Our institutions aren’t reassuring and above the fray. They’re part of the problem.

washington post logoWashington Post, Some Democrats warn abortion demonstrators not to go overboard, Ashley Parker and Annie Linskey, Annie Karni, May 11, 2022. On Monday morning, White House press secretary Jen Psaki sent out a 42-word tweet.

“@POTUS strongly believes in the Constitutional right to protest. But that should never include violence, threats, or vandalism. Judges perform an incredibly important function in our society, and they must be able to do their jobs without concern for their personal safety,” she wrote.

The Twitter missive was unremarkable — President Biden and his team have long denounced violence at protests — but for the fact that it seemed penned in response to recent abortion rights demonstrations, an attempt to head off what Republicans are trying to weaponize as a political issue.

After a leaked draft opinion one week ago indicated that the Supreme Court is preparing to overturn Roe v. Wade, abortion rights supporters have organized protests at the homes of some of the conservative Supreme Court justices, and the headquarters of an antiabortion group in Madison, Wis., was vandalized.

Two molotov cocktails were found inside the headquarters of Wisconsin Family Action, which was set on fire Sunday, as well as defaced with graffiti reading, “If abortions aren’t safe then you aren’t either.” The same evening, two molotov cocktails were thrown at the Oregon Right to Life office in a suburb of Salem, and last week, two Catholic churches in Colorado, including one known for its antiabortion stance, were vandalized.

Republicans were quick to pounce, with GOP lawmakers sending more than a dozen tweets attacking Biden and Democrats and calling on them to condemn the abortion rights demonstrators.

“Joe Biden should call on his supporters to stand down,” Sen. Josh Hawley (R-Mo.) wrote in a tweet. “Stop burning prolife offices, stop threatening violence against Supreme Court Justices. These are Biden’s people. Do something about it.”

Many Democrats and abortion rights activists say the complaints are a willful distraction from the real issue — that the high court seems poised to roll back rights that have been in place for a half-century. Disruptive abortion rights demonstrations have been minimal, they add, especially in comparison to the hostile demonstrations that targeted abortion clinics for decades.

Senate Majority Leader Charles E. Schumer (D-N.Y.) told reporters Tuesday he was comfortable with activists demonstrating outside the justices’ homes, as long as they are not violent. “If protests are peaceful, yes,” Schumer said. “There’s protests three or four times a week outside my house. That’s the American way.”

May 8

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array. 

 ny times logoNew York Times, Editorial: America Is Not Ready for the End of Roe v. Wade, Editorial Board, May 8, 2022 (print ed.). Imagine that every state were free to choose whether to allow Black people and white people to marry. Some states would permit such marriages; others probably wouldn’t. The laws would be a mishmash, and interracial couples would suffer, legally consigned to second-class status depending on where they lived.

It seems an unthinkable scenario in 2022. That’s because in 1967 the Supreme Court unanimously ruled that barring interracial marriage, as 16 states still did, violates the 14th Amendment’s guarantee of equal protection. “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the state,” the court stated in Loving v. Virginia.

More than half a century on, Loving is considered one of the court’s great rulings, and yet it was not universally admired at the time. Southern states complied only grudgingly; Alabama didn’t repeal its ban on interracial marriage until 2000. That’s the point of having a federal Constitution that is supreme; the guarantees and rights in that document apply to all Americans equally, wherever they live. The court system — and the Supreme Court in particular — exists to protect those rights when state and local authorities refuse to.

Many who oppose Roe v. Wade today, and even some who support it, argue that the 1973 ruling short-circuited a running debate over abortion, a debate that should have been allowed to play out in the states, many of which had long banned abortion. This is one of the main justifications in the leaked draft opinion in which a majority of Supreme Court justices appear ready to overturn Roe and Planned Parenthood v. Casey, the 1992 decision that preserved Roe’s central holding with certain restrictions.

The problem with this reasoning is that, as in Loving, leaving the matter to individual states and the political process means that millions of Americans will be denied their fundamental rights — in this case, the right of women to decide what happens inside their own bodies.

The draft opinion relies heavily on the lack of a mention of abortion in the Constitution, and therefore argues that the document cannot be the basis for the right to terminate a pregnancy. The Constitution also says nothing about interracial marriage, but that didn’t prevent the justices from finding in the 14th Amendment the guarantee that no couple may be treated differently because of the color of their skin.

In short, constitutional rights are meaningless unless they apply across the entire country. That is why the Supreme Court decided Loving v. Virginia and Roe v. Wade as it did. These rights are inherent in the Constitution, even if they are not explicit in it.

The principle is clear: Women and men should have equal control over their own bodies, as many Americans believed in 1973 and a majority believe today. And yet the right to choose whether to terminate a pregnancy is on the verge of being eliminated because five members of the current Supreme Court don’t like it.

ny times logoNew York Times, Where Does the Anti-Abortion Movement Go After Roe? Elizabeth Dias and Ruth Graham, May 8, 2022 (print ed.). The Supreme Court draft opinion signals a new era for the 50-year effort to end the constitutional right to abortion. Next goals include a national ban and, in some cases, classifying abortion as homicide.

For nearly half a century, the anti-abortion movement has propelled itself toward a goal that at times seemed impossible, even to true believers: overturning Roe v. Wade.

That single-minded mission meant coming to Washington every January for the March for Life to mark Roe’s anniversary. It required electing anti-abortion lawmakers and keeping the pressure on to pass state restrictions. It involved funding anti-abortion lobbying groups, praying and protesting outside clinics, and opening facilities to persuade women to keep their pregnancies. Then this week, the leaked draft of the Supreme Court opinion that would overturn the constitutional right to abortion revealed that anti-abortion activists’ dream of a post-Roe America appeared poised to come to pass.

The court’s opinion is not final, but the draft immediately shifted the horizon by raising a new question: If Roe is struck down, where does the anti-abortion movement go next?

Many leaders are redoubling state efforts, where they’ve already had success, with an eye toward more restrictive measures. Several prominent groups now say they would support a national abortion ban after as many as 15 weeks or as few as six, all lower than Roe’s standard of around 23 or 24. A vocal faction is talking about “abortion abolition,” proposing legislation to outlaw abortion after conception, with few if any exceptions in cases of rape or incest.

The sprawling anti-abortion grass-roots campaign is rapidly approaching an entirely new era, one in which abortion would no longer be a nationally protected right to overcome, but a decision to be legislated by individual states. For many activists, overturning Roe would mark what they see as not the end, but a new beginning to limit abortion access even further. It also would present a test, as those who have long backed incremental change could clash with those who increasingly push to end legal abortion altogether.

This week, many anti-abortion leaders were wary of celebrating before the court’s final ruling, expected this summer. They remembered Planned Parenthood v. Casey in 1992, when they hoped the court would overturn Roe and it ultimately did not. But they said they have been preparing for this moment and its possibilities for decades.

“If a dog catches a car, it doesn’t know what to do,” said Carol Tobias, president of the National Right to Life Committee. “We do.”

The Susan B. Anthony List, an anti-abortion political group, is planning a strategy involving state legislatures where it sees room to advance their cause or protect it. The National Right to Life is trying to support its affiliates in every state as it looks to lobby lawmakers. Both groups have been hoping to build support in Congress for a national abortion ban, even if it could take years, just as it did to gain momentum to undo Roe. Many Republicans have repeatedly tried to enact a ban at about 20 weeks, without success. Next week Democrats in the Senate are bringing a bill to codify abortion rights to a vote, but it is all but certain to be blocked by Republicans.

washington post logoWashington Post, How the future of Roe is testing Roberts’s clout on Supreme Court, Robert Barnes, Carol D. Leonnig and Ann E. Marimow, May 8, 2022.  The explosive leak of a draft Supreme Court opinion that would overturn Roe v. Wade not only focused the nation on the magnitude of the change facing abortion rights, it also signaled the rise of a rightward-moving court that is testing the power of fellow conservative Chief Justice John G. Roberts Jr.

As the country awaits a final decision, the intense deliberations inside a court closed to the public and shaken by revelations of its private negotiations appears to be not between the court’s right and left, but among the six conservative justices, including Roberts, in the court’s supermajority.

The mere existence of the draft indicated that five justices had voted at least tentatively to reject Roberts’s incremental approach to restricting abortion rights. Instead, they would reverse Roe after nearly 50 years of guaranteeing a right to abortion that could not be outlawed by the states.

The fact that Justice Samuel A. Alito Jr. authored the draft is a sign Justice Clarence Thomas, the court’s longest-serving member and the only one to write that he would overturn Roe, asserted his seniority to choose who would get the job. In Alito’s more than 16 years on the Supreme Court, he has supported every government restriction on abortion that has come before him.

ny times logoNew York Times, Supreme Court Leak Inquiry Exposes Gray Area of Press Protections, Jeremy W. Peters, May 8, 2022. No law or written code of conduct prescribes how investigating the leak of a draft opinion should proceed, or whether journalists will be swept into it.

There is a well-established but uneven pattern in American law that applies to government secrets and the journalists who uncover them. The First Amendment generally protects the publication of a leak, but not the leaker.

An authority no less than the Supreme Court has made it this way. In 1971, as the justices prepared to rule that the government could not prevent The New York Times from publishing the Pentagon Papers — one of the biggest leak cases in history — the source of that leak, Daniel Ellsberg, was indicted by a federal grand jury for theft.

The court is now grappling with one of the most significant disclosures of a government secret since then: the release of a draft opinion that sets the framework for overturning Roe v. Wade.

Only this time the leak came from inside the building. And there is no law or written code of conduct that suggests how an investigation into such a breach should proceed, or whether the journalists at Politico who brought the draft to light will be swept up in the kind of criminal investigation that top Republican lawmakers have demanded.

Unlike the Pentagon Papers, the government study of the country’s involvement in Vietnam, the draft opinion was not classified information. Leaking classified information is a crime. Instead, the recent leak broke the Supreme Court’s conventions for secrecy, an offense that has been punishable with almost certain career death but little else.

Given the magnitude of the leak and the aggressiveness with which federal prosecutors have pursued high-profile leakers and journalists in recent years, a criminal investigation is not unthinkable, legal experts said. And while no one is suggesting that Politico broke any laws in the course of publishing its article about the draft opinion, that does not mean the journalists involved would be spared from government pressure to reveal their sources if a grand jury was convened to consider charges against the leaker.

“I think it’s pretty clear there is at least enough for a grand jury to investigate,” said Eugene Volokh, a First Amendment expert at the University of California, Los Angeles, law school. “The interesting question is to what extent there’s going to be a subpoena to a reporter.”

Often the government will decline to pursue journalists, Mr. Volokh added, noting how that could end up happening case here. But as a legal matter, he said, “I think subpoenaing the reporter would be constitutional.”

washington post logoWashington Post, Analysis: In confirming Supreme Court justices, meetings with senators matter more than hearings, Paul Kane, May 8, 2022 (print ed.). After the leak, some senators and aides are combing through their notes of those meetings. A leaked draft opinion from the Supreme Court on abortion rights revealed a new truth about the confirmation fights over these lifetime appointments.

The public hearings, with the nominee testifying usually over three days, have become overly rehearsed matters that mostly provide moments for the senators to appeal to political activists. Instead, the most critical moments for prospective justices often come in the dozens of private huddles they hold with senators.

The routine has become standard: The nominee will be surrounded by a team of White House aides ushering him or her around the Capitol for meetings with key senators. These meetings are not technically one-on-one, as a few aides each for the senator and White House are present, but the talking is almost exclusively left to two people. The rest take notes.

 

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ny times logoNew York Times, Scholars have argued that abortion access was a factor in driving more women into the workforce in the 1970s, Emma Goldberg, May 8, 2022 (print ed.). Many factors drove women into the work force in greater numbers in the 1970s. Scholars argue that abortion access was an important one.

Those women who entered the workplace just after Roe are now reaching retirement age. Some of them, like Carolyn McLarty, a retired veterinarian, are more committed than ever to their anti-abortion advocacy. Some, like Ms. Schwartz, look back and feel their careers are indebted to the Supreme Court’s 1973 decision, and the reproductive choices it opened up to women. So they are spending their retirement years working as abortion clinic escorts.

ny times logoNew York Times, Who could lose access to abortion in the United States without Roe v. Wade? Weiyi Cai, Taylor Johnston, Allison McCann and Amy Schoenfeld Walker, May 7, 2022. Around 64 million women and girls of reproductive age live in the United States, and more than half of them live in states that could seek to ban or further restrict access to abortion if the Supreme Court were to overturn Roe v. Wade.

Many of the millions of people who live in these states would be able to seek legal abortions elsewhere, but the barriers to access — including financial resources, time off work and child care — may be hard for some to overcome.

This analysis includes 28 states that could ban or further limit abortion if the Supreme Court were to end Roe v. Wade, a decision it appears prepared to make, according to a leaked draft opinion from the court. But there is a lot of uncertainty about which states would be able to enforce bans, and experts disagree on how quickly they could take effect.

For example, the analysis includes four “uncertain” states — Kansas, Michigan, North Carolina and Wisconsin — that either have pre-Roe bans or other gestational limits on abortion, but whose Democratic governors are working to protect abortion rights or have pledged to oppose anti-abortion bills while they are in office.

ny times logoNew York Times, For South Texas Democrats, an Intraparty Test of Abortion Politics, James Dobbins, Jennifer Medina and Katie Glueck, May 8, 2022 (print ed.). A staunchly anti-abortion Democrat in Congress will face a young abortion-rights supporter in a pivotal primary runoff.

When Representative Henry Cuellar stepped onstage at a campaign rally in San Antonio this week, he spoke of education, health care and his experience in Congress. But as Mr. Cuellar, a nine-term Democratic congressman, faces his toughest re-election challenge yet, one word did not escape his lips: abortion.

Mr. Cuellar, the most staunchly anti-abortion Democrat in the House, will face a primary runoff later this month against Jessica Cisneros, a 28-year-old immigration lawyer and a progressive supporter of abortion rights.

May 7

washington post logoWashington Post, Clarence Thomas says he worries respect for institutions is eroding, Robert Barnes, May 7, 2022 (print ed.). Justice Clarence Thomas said Friday that the judiciary is threatened if people are unwilling to “live with outcomes we don’t agree with” and that recent events at the Supreme Court might be “one symptom of that.”

Thomas, speaking to judges and lawyers at the 11th Circuit Judicial Conference, did not speak directly about the leak of a draft opinion that would overturn Roe v. Wade, a colossal breach of the court’s procedures.

But he referred a couple of times to the “unfortunate events” of the past week, and in a question-and-answer session led by a former clerk, he said he worried about declining respect for institutions and the rule of law.

“It bodes ill for a free society,” he said. It can’t be that institutions “give you only the outcome you want, or can be bullied” to do the same, he said.

For Thomas, avowed critic of Roe v. Wade, Mississippi abortion case a moment long awaited

The court’s longest-serving justice said he also worried about a “different attitude of the young” that might not show the same respect for the law as past generations did. “Recent events have shown this major change,” he said.

ny times logoNew York Times, Analysis: Battle Over Abortion Threatens to Deepen America’s Divide, Peter Baker, May 7, 2022 (print ed.). If Roe v. Wade is overturned, states will set their own rules, leading to one America where abortion access is guaranteed and another where it is outlawed.

For years, the United States has been drifting further apart, less a single country than an uncomfortable marriage of vastly disparate cultural and political entities, a Red America and a Blue America with starkly different realities on masks and vaccines, gun rights and voting rights, Donald J. Trump and the legitimacy of the 2020 election.

Now the chasm may open even wider.

washington post logoWashington Post, Opinion: Send a message on Roe v. Wade with your ballot, Colbert I. King, May 7, 2022 (print ed.). Let’s leave the debate of what exactly the court’s cabal of conservative extremists will do next to the legal analysts and cable news contributors.

Instead, look beyond the Beltway to where the fight for control of Congress — and the ability to codify abortion rights into federal law — will take place. In September, the Women’s Health Protection Act advanced in the House along a party-line 218-to-211 vote, with only one Democrat, Rep. Henry Cuellar of Texas, against.

In February, the bill was blocked from being debated 46 to 48 in the Senate. It would need 60 votes to overcome a filibuster.

It need not remain like that.

The burden is on proponents of women’s rights to help change Washington’s political landscape.

May 6

 

Justice Clarence Thomas (left) and Justice Samuel Alito.

Justice Clarence Thomas (left) and Justice Samuel Alito.

Proof, Investigative Commentary:The Real Supreme Court Leak in Dobbs v. Jackson Isn’t the One You Think—and May Point Toward the Leaker’s Identity, Seth seth abramson proof logoAbramson, May 6-7, 2022. It turns out Alito’s draft opinion on abortion may have leaked earlier than believed, and not to Politico but another—farther right—outlet. This revelation may hold the key to a historic leak probe.

Seth Abramson, shown at right, founder of Proof, is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

 ny times logoNew York Times, In a Post-Roe America, Abortion Pills Stand to Become the Next Battleground, Pam Belluck and Sheryl Gay Stolberg, May 6, 2022 (print ed.). If the Supreme Court overturns Roe v. Wade, the legal and culture wars over abortion that have consumed the United States for decades would increasingly be fought on a new front: abortion pills.

  • Washington Post, Abortion pills by mail are hard to stop, but officials in red states are trying, Christopher Rowland, Laurie McGinley and Jacob Bogage, May 5, 2022.

washington post logoWashington Post, Louisiana Republicans advance bill that would charge abortion as homicide, Caroline Kitchener, May 6, 2022 (print ed.). The measure, which passed through a committee on a 7-to-2 vote, goes further than other antiabortion bans that have gained momentum in recent years.

Republicans in the Louisiana House advanced a bill Wednesday that would classify abortion as homicide and allow prosecutors to criminally charge patients, with supporters citing a draft opinion leaked this week showing the Supreme Court ready to overturn Roe v. Wade.

May 5

 

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SCOTUSblog, Analysis: How the leak might have happened, Tom Goldstein (SCOTUSblog editor and founder, and prominent litigator before the Supreme Court), May 5, 2022. Among the debates generated by the leak of Justice Samuel Alito’s opinion in Dobbs is whether the leaker was conservative or liberal. The leak will ultimately pale in importance to the court’s decision once it is issued; the ruling will directly affect the lives and rights of tens of millions of people. But in the meantime, the motives of the leaker are an important topic because they help explain why an institution that zealously guards its secrets suddenly seems porous.

Start from the premise that there were actually (at least) two leakers, and three leaks. The first leak was to the Wall Street Journal editorial board last week. john roberts oIn substance, it was that the court had voted to overrule Roe v. Wade, but that the precise outcome remains in doubt because Chief Justice John Roberts, right, is trying to persuade either Justice Brett Kavanaugh or Justice Amy Coney Barrett to a more moderate position that would uphold the Mississippi abortion restriction without formally overturning Roe.

While not formally presented as relying on a leak, the editorial transparently does. The most obvious example is that it predicts that Alito samuel alito ois drafting a majority opinion to overrule Roe, but gives no explanation for that prediction and none is apparent. We now know that Alito, left, did draft that opinion.

The second leak was to Politico. Likely within the past few days, a person familiar with the court’s deliberations told them that five members of the court – Alito, Kavanaugh, and Barrett, along with Justices Clarence Thomas and Neil Gorsuch – originally voted to overturn Roe and that remains the current vote. In addition, the position of the chief justice is unclear. The remaining justices are dissenting.

The third leak was also to Politico. It was presumably – but not certainly – by the same person. Someone provided them with Alito’s Feb. 10 draft opinion.

Note as well what was not leaked. Politico seemingly was not told which justices had joined the Alito opinion. (The fact that five justices voted in December politico Customto overturn Roe as a general matter does not mean that all five of them necessarily would have agreed to sign on to Alito’s draft.) And Politico apparently was not provided with a subsequent draft, which ordinarily would have circulated to the court by now – in response to comments from some members of the would-be majority.

Here is what you would conclude is the state of play if you took all the leaks as both accurate and pretty complete (assumptions that, admittedly, are by no means certain). Alito’s opinion probably has been joined by Thomas and Gorsuch. Kavanaugh and Barrett have yet to join – most likely because they are waiting to consider an alternative opinion from the chief justice.

In these circumstances, which ideological side would think it benefits from leaking the opinion? It seems to me, that is the left. I can see conservatives believing that they would gain from leaking the fact that Kavanaugh had originally voted to strike down Roe. They might believe it would tend to lock him into that position. But that was accomplished by leaking that fact to both The Wall Street Journal and Politico.

The question here is who believed they would benefit from leaking the opinion itself. That document was much more likely to rally liberals than conservatives. It brought home the fact that the court was poised to overrule Roe in much more concrete terms than merely leaking the vote. The opinion is also a full-throated attack on abortion rights and – with important caveats – substantive due process rights more broadly. And as a first draft – without the benefit of later refinement – it does not yet present the critique of Roe in its most persuasive form.

It is also important to look at the leak of the opinion through the lens of the fact that someone – almost certainly a conservative – had just before leaked the court’s tentative decision and the state of the voting to The Wall Street Journal. That leak was itself an extraordinary and unethical breach of confidences and certainly caused very deep concern inside the court.

amy coney barrett headshot notre dame photoMy guess is that someone on the left felt somewhat justified in releasing the opinion in response. Through the opinion, one would see what the Journal was saying Kavanaugh and Barrett, right, were considering. That leak was a historically unprecedented violation of the deepest and most solemn trust among the justices and the court’s staff. It wounded the institution.

One small note about the identity of the leaker. There has been some speculation that turns on a supposed relationship with Josh Gerstein, the Politico legal affairs reporter who is the lead author on their story. It seems to me that the leak very likely runs instead through the other reporter with a byline on the story: Alexander Ward, who is a national security reporter. In response to questions from The Washington Post, Politico confirmed that the story was very tightly held from even its own staff. Almost surely, the leaker would have insisted on that confidentiality. I cannot think of a reason that Ward would have been on the story other than that the leaker communicated through him, not Gerstein. And Politico would have felt compelled to give Ward a byline on such a historic scoop.

May 4

Headlines

Top Stories

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

washington post logoWashington Post, In draft opinion on abortion, Democrats see a court at odds with democracy, Michael Scherer, May 4, 2022. The critique follows decades in which Republicans demanded that ‘unelected judges’ stop blocking the public will.

For nearly half a century, Republicans have railed against “unelected judges” making rulings that they claim disenfranchise voters from deciding for themselves what laws should govern hot-button issues.

But since the release this week of a draft Supreme Court opinion that would overturn the long-standing constitutional right to abortion, Democrats have been the ones embracing that complaint, flipping the script as the party vents its frustration with elements of the U.S. system that have empowered a minority of the country’s voters to elect lawmakers who have successfully reshaped the high court.

House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Charles E. Schumer (D-N.Y.) denounced the apparent conservative majority behind the draft opinion as “in no way accountable to the American people.” Rep. Jamie B. Raskin (D-Md.) described them as “handpicked and gerrymandered by theocrats and autocrats.” Sen. Elizabeth Warren (D-Mass.) cast the document as the culmination of a conservative effort to gain a “majority on the bench who would accomplish something that the majority of Americans do not want.”
Washington Post, Ukraine Live Updates: Russia intensifies missile attacks, hitting transport hubs

washington post logoWashington Post, Roberts says court will investigate leak of draft Roe v. Wade opinion, Robert Barnes and Ann E. Marimow, May 4, 2022 (print ed.). The document is authentic but not final, the chief justice said in a news release Tuesday.

john roberts oChief Justice John G. Roberts Jr., right, said Tuesday that the leaked draft opinion proposing to overturn Roe v. Wade is authentic but not final, and that he is opening an investigation into how it became public.

“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. “The work of the Court will not be affected in any way.”

While Roberts’s statement said the draft provided to Politico was genuine, “it does not represent a decision by the Court or the final position of any member on the issues in the case.”

Supreme Court is ready to strike down Roe v. Wade, leaked draft opinion shows

Politico’s report said that five justices had decided to uphold a Mississippi law that would ban abortions after 15 weeks of pregnancy, and overturn the decision that established a constitutional right to abortion nearly 50 years ago.

washington post logoWashington Post, Majority of Americans say Roe v. Wade should be upheld, poll finds, Emily Guskin and Scott Clement, May 3, 2022. By about a 2-to-1 margin, Americans say Roe v. Wade should be upheld rather than overturned.

A majority of Americans say the Supreme Court should uphold Roe v. Wade, the landmark ruling that established a constitutional right to abortion, a Washington Post-ABC News poll conducted last week finds.

With the Supreme Court poised to overturn the right to abortion, the survey finds that 54 percent of Americans think the 1973 Roe decision should be upheld while 28 percent believe it should be overturned — a roughly 2-to-1 margin.

washington post logoWashington Post, Opinion: The leaked draft Roe opinion is a disaster for the court, Ruth Marcus, May 4, 2022 (print ed.). “Disaster” is not too strong a word to describe the leak of a draft Supreme Court opinion ruth marcus twitter Customthat would overrule Roe v. Wade.

A disaster, most clearly, for the court itself, whose secrecy has been breached in a way that is unprecedented. In my view, overruling Roe would be a disaster — for a court reversing itself after repeatedly reaffirming the right to abortion over half a century, and even more for American women who have come to rely on the right to abortion.

samuel alito oBut I say “most clearly” because we cannot be certain whether that disaster will in fact ensue — if what was labeled “1st draft” of a majority opinion by Justice Samuel A. Alito Jr., left, that was circulated Feb. 10 will remain the majority opinion of the court.

Keep in mind: Majorities, particularly in high-stakes cases such as the Mississippi abortion law at issue, can fall apart. We don’t know how Politico, which broke the story, obtained the draft. One theory — my leading theory — is that the leak came from the conservative side, possibly from a clerk for a conservative justice concerned that the seeming majority, ready to do away with the constitutional right to abortion, might be unraveling.

There was a hint of this last week in a Wall Street Journal editorial warning that Chief Justice John G. Roberts Jr. might be trying to dissuade Justices Brett M. Kavanaugh or Amy Coney Barrett from voting to overrule Roe outright. Roberts famously changed his mind after initially voting to strike down the Affordable Care Act in 2012 and “may be trying to turn another Justice now,” the Journal warned. “We hope he doesn’t succeed — for the good of the Court and the country.”

washington post logoWashington Post, What would happen if Roe v. Wade is overturned, Daniela Santamariña and Amber Phillips, May 4, 2022 (print ed.). If the Supreme Court overturns the 1973 precedent, the legality of abortion will be left to individual states. Many have already made their intentions clear.

There is no federal law protecting or prohibiting abortion. So the Supreme Court striking down Roe would leave abortion laws entirely up to the states. And they are sharply divided.

Unless Congress gets rid of the filibuster in the Senate, it’s very unlikely lawmakers can agree on some kind of federal law determining when abortion should be allowed or banned, leaving America with a patchwork of abortion laws.

ny times logoNew York Times, Biden Urges Lawmakers and Voters to Fight for Abortion Rights, Peter Baker, May 4, 2022 (print ed.). A majority of the court voted to strike down the landmark abortion rights decision, according to a draft majority opinion, obtained by Politico; President Biden asked Congress to pass legislation codifying the right to abortion. The draft ruling signals a shift in American politics. Follow our updates.

The leak on Monday night of a draft Supreme Court ruling overturning Roe v. Wade signaled a seismic shift in American politics and law, portending sweeping change for women in much of the country and upending the legislative and campaign landscape at every level of government just six months before midterm elections.

The morning after the disclosure of the opinion, protesters gathered outside the Supreme Court and could be heard across the street as members of Congress entered the Capitol. At the White House, President Biden called on voters to elect more abortion rights supporters to Congress so that lawmakers can codify the principles of Roe into federal law even if the justices reverse the decision.

Politico, Exclusive, Supreme Court has voted to overturn abortion rights, draft opinion shows, Josh Gerstein and Alexander Ward, May 3, 2022 (print ed.). "We hold that Roe and Casey must be overruled," Justice Alito writes in an initial majority draft circulated inside the court.

The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito, left, circulated inside the court and obtained by POLITICO.

politico CustomThe draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.

“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

MSNBC, Politico Reporter On Obtaining Leaked SCOTUS Draft Opinion Overturning 'Roe V. Wade,' May 2, 2022. Rachel Maddow interviews Josh Gerstein, senior legal affairs reporter for Politico, about his reporting that he has obtained a draft majority opinion from the Supreme Court that shows the court has voted to overturn abortion rights in the United States.

washington post logoWashington Post, Analysis: Overturning Roe v. Wade could upend the midterms, Theodoric Meyer, Leigh Ann Caldwell and Tobi Raji, May 4, 2022 (print ed.). The bombshell revelation on Monday night that the Supreme Court may be preparing to strike down Roe v. Wade promises to consume Washington in the months ahead and reorder the midterm elections.

ny times logoNew York Times, As Leak Theories Circulate, Supreme Court Marshal Takes Up Investigation, Michael D. Shear and Zolan Kanno-Youngs, May 4, 2022. Not since Bob Woodward and Carl Bernstein refused for decades to disclose the identity of their Watergate source has Washington been as eager to unmask a leaker.

Maybe it was a liberal law clerk who leaked the draft opinion in the Supreme Court’s biggest case in years, hoping to gin up outrage among Democrats at the prospect of an end to legal abortions.

Or it was an anti-abortion court employee fearful that the justices would end up backing away from their early agreement to overturn Roe v. Wade, the landmark case legalizing the procedure. Or perhaps it was one of the justices themselves, frustrated by the direction of their secret internal debates about one of the country’s most polarizing issues.

gail curleyBut while the city’s lobbyists, journalists and political operatives trade theories over encrypted messages and social media, Col. Gail A. Curley, the 11th marshal of the United States Supreme Court has been given the task of rooting out the truth in what Chief Justice John G. Roberts Jr. called “a singular and egregious breach” of the court’s operations.

Hours after Politico posted what appeared to be a photocopy of a Feb. 10 draft opinion in the case of Dobbs v. Jackson Women’s Health Organization, the chief justice confirmed the document’s authenticity and did the most Washington of things: He ordered Colonel Curley to conduct a thorough leak investigation.

And with that, the bright D.C. spotlight turns to a former senior Army attorney whose legal work took her from the United States to Germany and Afghanistan.

The second woman to hold the marshal position at the court, Colonel Curley (shown in a file photo from her miltary career) serves as the chief security officer, facilities administrator and head of contracting for the third branch of the federal government. She manages about 260 employees, including the court’s police force, and is a voice that might be recognizable to anyone who has attended or listened to any of the court’s oral arguments.

“Oyez! Oyez! Oyez!” she announces at the start of every public meeting of the court. “All persons having business before the honorable, the Supreme Court of the United States, are admonished to give their attention, for the court is now sitting. God save the United States and this honorable court.”

People familiar with court operations said Colonel Curley is not normally charged with conducting investigations. But it will now be up to her to help save the reputation of the court, which has been badly tarnished by the disclosure, as many Washingtonians lamented this week.

The contours of her investigation are opaque, even by Washington standards. It is unclear how she might conduct an inquiry, whom she will interview, and what punishments the court could dole out if she tracks down the perpetrator.

More than most of the federal government, the Supreme Court operates in almost total secrecy — a tradition that helps the court maintain a sense of being above the contentious political wars that so often consume the executive and legislative branches. On Wednesday, the court offered no insight into how the leak investigation will be conducted and did not respond to requests for comment.

But there are some obvious places Colonel Curley might start to look for clues.

The document Politico posted online appeared to be slightly askew, as if it had been placed hastily on a photocopy machine or scanner. The top left corner was dog-eared and looked as if a large staple were removed from the 98-page draft opinion. And the words “1st Draft” are highlighted in yellow — though it is not clear whether that was done with a highlighter pen or with a highlight feature on a word processor.

Those physical characteristics could help Colonel Curley track down the source of the leak.

Politico, Roberts investigation could make the Supreme Court very uncomfortable, Kyle Cheney, May 4, 2022. Separation of powers concerns will likely arise should the DOJ or FBI get involved in investigating the Supreme Court's draft opinion breach.

Now that Chief Justice John Roberts has ordered an investigation into the breach of an initial draft majority opinion overturning Roe v. Wade, what happens next is a total mystery.

politico CustomThere are virtually no precedents for Roberts’ plans to identify the 98-page document’s path from the high court to the pages of POLITICO, a disclosure he termed a “betrayal” of the institution’s trust. Supreme Court leak controversies have occasionally sparked national intrigue and even calls for federal investigations, but those calls haven’t resulted in any significant investigation.

“We are very much in uncharted territory here,” said Erwin Chemerinsky, dean of the law school at the University of California at Berkeley. “Never before, to my knowledge, has a Supreme Court opinion been leaked like this. So never before has there been an investigation like this.”
Demonstrators chanting in front of the Supreme Court building.

While Roberts indicated he has authorized the marshal of the Supreme Court to investigate the breach of Justice Samuel Alito’s draft opinion, he offered no details about how the inquiry would proceed. What’s even less clear is whether the probe will include a criminal element. While Republicans called for federal prosecutors and the FBI to get involved, many legal experts said the disclosure, no matter how shocking, was unlikely to amount to a crime. Government leaks are rarely prosecuted, with the exception of unauthorized disclosures of classified information. The culprit would be likelier to face professional consequences, such as firing and disbarment rather than prosecution, they say.

In the meantime, the most urgent question is who will conduct the investigation. Roberts appointed the current marshal, Gail Curley, last year. She oversees a staff of 260 court employees, which includes the court’s police force, tasked with protecting the justices and grounds. But that internal police force has limited investigative capability. It’s primarily geared toward overseeing operations within the Supreme Court building and providing physical security for justices, employees and visitors.

Curley could request assistance from the FBI, which has the resources to aid any internal probe. But that step itself would depend on how deeply the justices want another branch’s investigators poking around into their private communications.

ny times logoNew York Times, Opinion: Overturning Roe Is a Radical, Not Conservative, Choice, Bret Stephens, right, May 4, 2022 (print ed.). Roe v. Wade was an ill-judged brett stephens headshotdecision when it was handed down on Jan. 22, 1973.

It stood on the legal principle of a right to privacy found, at the time, mainly in the penumbras of the Constitution. It arrogated to the least democratic branch of government the power to settle a question that would have been better decided by Congress or state legislatures. It set off a culture war that polarized the country, radicalized its edges and made compromise more difficult. It helped turn confirmation hearings for the Supreme Court into the unholy death matches they are now. It diminished the standing of the court by turning it into an ever-more political branch of government.

But a half-century is a long time. America is a different place, with most of its population born after Roe was decided. And a decision to overturn Roe — which the court seems poised to do, according to the leak of a draft of a majority opinion from Justice Samuel Alito — would do more to replicate Roe’s damage than to reverse it.

It would be a radical, not conservative, choice.

washington post logoWashington Post, Opinion: Let’s throw out the term ‘culture wars.’ This is religious tyranny, Jennifer Rubin, May 4, 2022. In their never-ending quest to turn jennifer rubin new headshotpolitics into a game and dumb down the most serious of issues, the media continues to use the term “culture wars" to describe a range of issues in which the right seeks to break through all restraints on government power in an effort to establish a society that aligns with a minority view of America as a White, Christian country.

In using “culture wars,” one would think this was a battle between two sides over hemlines or movie ratings or “lifestyles.” If media outlets keep up that distorting language, they are going to find it hard to explain the firestorm that awaits the overturning of Roe v. Wade, if the leaked draft opinion by Justice Samuel A. Alito Jr. prevails.

The livid reaction from progressive advocacy groups and Democratic politicians across the country about the potential evisceration of abortion rights — and susan collins profilepossibly others protected by the 14th Amendment — should tell the media this is not simply about “culture" nor is it a “war." It’s a religious power grab by justices who, according to at least two female Republican senators, dissembled under oath about their intentions regarding Roe. The Senate Judiciary Committee should hold hearings and call GOP Sens. Susan Collins (Maine), left, and Sen. Lisa Murkowski (Alaska) to testify. If those senators were really duped, they should consider advocating for extreme measures, including impeachment and a filibuster exception to codify Roe.

It’s important to identify the nature of the threat to Americans to understand the reaction that would likely follow a ruling along the lines Alito laid out. A Supreme Court decision that would criminalize abortion, eviscerating the ambit of privacy and personal autonomy rick scottafforded by the 14th Amendment, would expand governmental power into every nook and cranny of life — from a doctor’s office in Texas treating a transgender child to intimate relations in a bedroom in Georgia to a pharmacy counter in Ohio. Will government dictate a set of views that have not had majority support for decades?

The right-wing justices and their supporters appear ready to reject one of the Founders’ core principles: that religion shall not be imposed by government edict.

Other Republicans have given away the scheme. In his 11-point plan, Sen. Rick Scott (R-Fla.), right, the head of the National Republican Senatorial Committee, declares: “The nuclear family is crucial to civilization, it is God’s design for humanity, and it must be protected and celebrated. To say otherwise is to deny science.” Put aside the utter incoherence (is it God or science?): The senator is explicitly calling for state power to be used in the service of his religious beliefs.

washington post logoWashington Post, With Roe at risk, GOP faces pressure to support families after birth, Jeff Stein, May 4, 2022 (print ed.). Republican supporters of policies to help children say new restrictions on abortion should change political calculus.

Republican lawmakers are facing renewed internal pressure to support child benefit programs for parents after a leaked opinion on Monday showed the Supreme Court is prepared to strike down federal abortion protections.

The GOP has adamantly opposed President Biden’s proposals to provide cash payments for parents, universal prekindergarten and other family benefit programs such as expanded child-care subsidies. But with the Supreme Court appearing poised to overturn Roe v. Wade, even some Republican senators are acknowledging that the party may need to do more to provide support for parents.

A court decision overturning Roe would lead about half the states to make abortion illegal immediately or soon after the Supreme Court acted. The ruling is the culmination of a decades-long Republican project but could also put a spotlight on the party’s resistance to efforts to aid parents.

washington post logoWashington Post, Editorial: The court might never recover from overturning Roe, Editorial Board, May 4, 2022 (print ed.). Written by Justice Samuel A. Alito Jr., the document would declare Roe “egregiously wrong,” obliterate its guarantees of reproductive choice and empower lawmakers to abridge at will this long-held right.

The court’s legitimacy rests on the notion that it follows the law, not the personal or ideological preferences of the justices who happen to serve on it at any given time. Americans rely on the court to exercise care and restraint against making sharp turns that might suddenly declare their everyday choices and activities unprotected or illegal.

Over the course of nearly half a century, the court not only issued Roe but upheld its bedrock principles against later challenges. Throughout, the original 1973 decision enjoyed broad and unwavering public support. What brought the court to its current precipice was not a fundamental shift in American values regarding abortion. It was the shameless legislative maneuvering of Senate GOP leader Mitch McConnell (Ky.), who jammed three Trump-nominated justices onto the court.

In his draft, Justice Alito points out that the court has overturned many cases in the past, including the atrocious Plessy v. Ferguson, which permitted racial segregation. But the court has never revoked a fundamental constitutional right. Overturning Plessy expanded liberty. Overturning Roe would constrict liberty — and be a repugnant repudiation of the American tradition in which freedom extends to an ever-wider circle of people. By betraying this legacy and siding with the minority of Americans who want to see Roe overturned, the justices would appear to be not fair-minded jurists but reckless ideologues who are dangerously out of touch and hostile to a core American ethic.

washington post logoWashington Post, The court has shifted on abortion over 50 years. I have, too, Kathleen Parker, right, May 4, 2022. While Roe okayed abortion under a right to kathleen parker twitterprivacy, Casey established abortion as a freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy.” It’s hard today to argue otherwise, accustomed as we’ve become to these ideas.

I’ve been an adult throughout Roe’s 50-year life span and, admittedly, have wobbled to and fro. When Roe became law in 1973, a much younger me performed a sideways leap and clicked my heels together, such was my glee.

Eleven years later and pregnant with my son, I became someone else and thought anew. It was clear to me that I was a mere vessel for this other autonomous life growing inside me and my job was to protect him. Sure, it was my body, but it was his life. Whereupon, I became, for lack of a better term, “pro-life.”

Against all the above, of course, is the surrender of women’s autonomy to the mercy of the random strangers in state legislatures who get to vote on whether to permit abortions in every state.

May 3  

 

 

supreme court resized 2021

washington post logoWashington Post, Justices poised to overturn Roe v. Wade, leaked draft opinion shows; Disclosure seen as extreme breach of modern Supreme Court protocol, Robert Barnes and Mike DeBonis, Updated May 3, 2022. A majority of the Supreme Court is prepared to overturn the right to abortion established nearly 50 years ago in Roe v. Wade, according to a leaked draft of the opinion published Monday by Politico.

That conclusion seemed a possibility in December when the court considered a Mississippi law that would ban abortions after 15 weeks.

washington post logoWashington Post, Opinion: The leaked draft Roe opinion is a disaster for the court, Ruth Marcus, May 3, 2022. “Disaster” is not too strong a word to describe the leak of a draft Supreme Court opinion ruth marcus twitter Customthat would overrule Roe v. Wade.

A disaster, most clearly, for the court itself, whose secrecy has been breached in a way that is unprecedented. In my view, overruling Roe would be a disaster — for a court reversing itself after repeatedly reaffirming the right to abortion over half a century, and even more for American women who have come to rely on the right to abortion.

But I say “most clearly” because we cannot be certain whether that disaster will in fact ensue — if what was labeled “1st draft” of a majority opinion by Justice Samuel A. Alito Jr. that was circulated Feb. 10 will remain the majority opinion of the court.

Keep in mind: Majorities, particularly in high-stakes cases such as the Mississippi abortion law at issue, can fall apart. We don’t know how Politico, which broke the story, obtained the draft. One theory — my leading theory — is that the leak came from the conservative side, possibly from a clerk for a conservative justice concerned that the seeming majority, ready to do away with the constitutional right to abortion, might be unraveling.

There was a hint of this last week in a Wall Street Journal editorial warning that Chief Justice John G. Roberts Jr. might be trying to dissuade Justices Brett M. Kavanaugh or Amy Coney Barrett from voting to overrule Roe outright. Roberts famously changed his mind after initially voting to strike down the Affordable Care Act in 2012 and “may be trying to turn another Justice now,” the Journal warned. “We hope he doesn’t succeed — for the good of the Court and the country.”

washington post logoWashington Post, Roberts says court will investigate leak of draft Roe v. Wade opinion, Robert Barnes and Ann E. Marimow, May 3, 2022. The document is authentic but not final, the chief justice said in a news release Tuesday.

john roberts oChief Justice John G. Roberts Jr., right, said Tuesday that the leaked draft opinion proposing to overturn Roe v. Wade is authentic but not final, and that he is opening an investigation into how it became public.

“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. “The work of the Court will not be affected in any way.”

While Roberts’s statement said the draft provided to Politico was genuine, “it does not represent a decision by the Court or the final position of any member on the issues in the case.”

Supreme Court is ready to strike down Roe v. Wade, leaked draft opinion shows

Politico’s report said that five justices had decided to uphold a Mississippi law that would ban abortions after 15 weeks of pregnancy, and overturn the decision that established a constitutional right to abortion nearly 50 years ago.

washington post logoWashington Post, Majority of Americans say Roe v. Wade should be upheld, poll finds, Emily Guskin and Scott Clement, May 3, 2022. By about a 2-to-1 margin, Americans say Roe v. Wade should be upheld rather than overturned.

A majority of Americans say the Supreme Court should uphold Roe v. Wade, the landmark ruling that established a constitutional right to abortion, a Washington Post-ABC News poll conducted last week finds.

With the Supreme Court poised to overturn the right to abortion, the survey finds that 54 percent of Americans think the 1973 Roe decision should be upheld while 28 percent believe it should be overturned — a roughly 2-to-1 margin.

washington post logoWashington Post, What would happen if Roe v. Wade is overturned, Daniela Santamariña and Amber Phillips, May 3, 2022. If the Supreme Court overturns the 1973 precedent, the legality of abortion will be left to individual states. Many have already made their intentions clear.

There is no federal law protecting or prohibiting abortion. So the Supreme Court striking down Roe would leave abortion laws entirely up to the states. And they are sharply divided.

Unless Congress gets rid of the filibuster in the Senate, it’s very unlikely lawmakers can agree on some kind of federal law determining when abortion should be allowed or banned, leaving America with a patchwork of abortion laws.

ny times logoNew York Times, Live Updates: Biden Urges Lawmakers and Voters to Fight for Abortion Rights, Peter Baker, May 3, 2022. A majority of the court voted to strike down the landmark abortion rights decision, according to a draft majority opinion, obtained by Politico; President Biden asked Congress to pass legislation codifying the right to abortion. The draft ruling signals a shift in American politics. Follow our updates.

The leak on Monday night of a draft Supreme Court ruling overturning Roe v. Wade signaled a seismic shift in American politics and law, portending sweeping change for women in much of the country and upending the legislative and campaign landscape at every level of government just six months before midterm elections.

The morning after the disclosure of the opinion, protesters gathered outside the Supreme Court and could be heard across the street as members of Congress entered the Capitol. At the White House, President Biden called on voters to elect more abortion rights supporters to Congress so that lawmakers can codify the principles of Roe into federal law even if the justices reverse the decision.

 

disney world mickey mouse facebook

San Francisco Chronicle, Opinion: No, Ron DeSantis’ battle with Disney isn’t just political grandstanding, Burt Neuborne and Erwin Chemerinsky, Updated May 3, 2022. The core principle underlying the First Amendment is that government cannot punish speech because it disagrees with its viewpoint. But that is exactly what Gov. Ron DeSantis and the Florida Legislature have done to the Disney corporation for having dared to oppose legislation limiting discussion of gay issues in Florida’s public schools.

We think the Supreme Court was wrong in Citizens United when it granted full free speech rights to corporations like Disney. Nor are we fans of delegating government powers to profit-driven corporations. But, as long as corporations continue to function as powerful First Amendment speakers, the worst thing we could do is empower an all-powerful regulatory state to turn corporate speakers into mouthpieces for the government by punishing them for failing to toe the party-line. That’s how Vladimir Putin rules Russia.

ron desantis hands outGov. DeSantis, right, and Florida state lawmakers have revoked a 55-year-old arrangement that allowed the Walt Disney Co. to self-govern its 25,000-acre Disney World complex. Stripping Disney of its local governmental powers was done for just one reason, and DeSantis was explicit about it: Disney CEO Bob Chapek had criticized Florida’s recently adopted law prohibiting classroom discussion of sexual orientation and gender identity in certain elementary school classrooms. DeSantis and the Florida Legislature were simply retaliating for Chapek’s criticism of the “don’t say gay” law.

It was once the law that government could condition the grant of a so-called “privilege,” like Disney’s authority to exercise delegated local government power, on any terms it wished. But over a half century ago, the Supreme Court rejected that approach and repeatedly has held that the regulatory state may not condition the continued enjoyment of a government-granted benefit on the recipient’s waiver of its First Amendment rights. Under disney logosettled First Amendment principles, the Florida Legislature could not provide that a person’s license to practice medicine or law, or their eligibility to receive welfare benefits, could be made contingent on supporting government policy.

Simply put, the government cannot condition the discretionary grant of a benefit on a recipient’s waiver of a constitutional right. The Supreme Court, applying its “unconstitutional condition” doctrine, has struck down efforts to condition government funding of public television stations on a waiver of the station’s First Amendment right to use privately raised funds to support news programs.

Florida’s effort to condition Disney’s continued exercise of local government authority on its support for the governor’s anti-gay bill is no different. DeSantis and the Florida Legislature have unconstitutionally conditioned Disney’s ability to exercise local government benefits on the company’s silence.

There is a temptation to dismiss Florida’s action as political grandstanding by a governor who wants to run for president and is seeking issues that play to his base. Going after Disney for being too supportive of gays received just the headlines DeSantis wanted.

But if DeSantis and the Florida Republicans can get away with this, there will be no stopping their power to use the machinery of government to punish and silence their critics — corporate or otherwise. If DeSantis gets away with punishing Disney for its speech, any corporation, indeed any person receiving a benefit from a government will risk losing it unless they toe the party line. The potential for government manipulation of corporate — and other — speech is enormous.

May 2

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

Politico, Exclusive, Supreme Court has voted to overturn abortion rights, draft opinion shows, Josh Gerstein and Alexander Ward, May 3, 2022 (print ed.). "We hold that Roe and Casey must be overruled," Justice Alito writes in an initial majority draft circulated inside the court.

samuel alito oThe Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito, left, circulated inside the court and obtained by POLITICO.

politico CustomThe draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.

“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

MSNBC, Politico Reporter On Obtaining Leaked SCOTUS Draft Opinion Overturning 'Roe V. Wade,' May 2, 2022. Rachel Maddow interviews Josh Gerstein, senior legal affairs reporter for Politico, about his reporting that he has obtained a draft majority opinion from the Supreme Court that shows the court has voted to overturn abortion rights in the United States.

 

April 2022

April 21

 supreme court resized 2021

washington post logoWashington Post, Supreme Court rules that Congress can exclude Puerto Ricans from aid program, Robert Barnes, April 21, 2022. In an 8-1 decision, the justices agreed that Puerto Ricans can be excluded from Supplemental Security Income benefits for low-income disabled and blind people.

The Supreme Court ruled Thursday that Congress may continue excluding residents of Puerto Rico from a program that aids low-income disabled and blind people.

Elena Kagan O HRThe decision was 8 to 1, the lone dissenter being Justice Sonia Sotomayor, left, whose parents were born on the island.

President Biden’s administration, like the Trump administration before it, defended Congress’s right to exclude residents of Puerto Rico from the Supplemental Security Income (SSI) program without violating the Constitution’s promise of equal protection. But the president has called for the law to be changed.

The exclusion means about 300,000 people on the island who would qualify for the benefit cannot receive it.

“The limited question before this Court is whether, under the Constitution, Congress must extend Supplemental Security Income to residents of Puerto Rico to the same extent as to residents of the States.” Justice Brett M. Kavanaugh wrote for the majority. “The answer is no.”

Congress has devised a unique mix of burdens and benefits for residents of Puerto Rico, Kavanaugh noted, including a lesser tax obligation.

“Puerto Rico’s tax status—in particular, the fact that residents of Puerto Rico are typically exempt from most federal income, gift, estate, and excise taxes—supplies a rational basis for likewise distinguishing residents of Puerto Rico from residents of the States for purposes of the Supplemental Security Income benefits program,” he wrote.

He added that Congress was free to extend the SSI benefits to Puerto Ricans if it chooses, noting that Biden supports such legislation.

The case involved Jose Luis Vaello Madero, who received SSI payments in 1985 in New York. The payments continued to his bank account even when he moved to Puerto Rico in 2012. But the money stopped when the government learned of his new address. Moreover, it attempted to recover more than $28,000 he received.

washington post logoWashington Post, Opinion: The Jan. 6 committee must protect our democracy, E.J. Dionne Jr., April 21, 2022 (print ed.). Our democracy is sleepwalking toward catastrophe. It is the task of the House select committee investigating the Jan. 6 Capitol attack — and the coup attempt it was part of — to awaken us all to the dangers confronting our republic.

It is also Attorney General Merrick Garland’s obligation to decide sooner rather than later whether the Justice Department’s own investigation and the Jan. 6 committee’s work justify an indictment of Donald Trump. If the evidence is there (and public comments from committee members suggest that the panel has it), Garland’s department must prosecute him.

Worry about what might or might not look “political” is itself a political consideration that should not impede equal justice under the law. If a president is not above the law, a defeated former president isn’t, either.

A central lesson from the ambiguous end of special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 elections is that both the Jan. 6 committee and the Justice Department must be explicit about any crimes they determine Trump committed and take appropriate action. Otherwise, Trump and his minions will loudly claim exoneration, even in the face of revealed facts to the contrary.

This is why the Jan. 6 committee should not be reluctant to make a criminal referral to the Justice Department if it concludes that Trump broke the law. Yes, there is legitimate debate about this. Especially if Garland is already moving toward an indictment, some committee members worry that a referral might make legal action look — that word again — political.

Here again, however, concerns about appearances should not get in the way of directness. As one committee member, Rep. Elaine Luria (D-Va.), has put it: “If in the course of our investigation we find that criminal activity has occurred, I think it’s our responsibility to refer that to the Department of Justice.”

 

April 19

William

Legal Schnauzer, Investigative Commentary: In the wake of Birmingham attorney's shocking suicide, attention turns to possible obstruction of justice, criminal roger shuler and murphyconcealment, and civil RICO cases, Roger Shuler, right, April 19, 2022. The suicide last week of Balch & Bingham attorney William "Bo" Lineberry, shown above, was a stunning and perhaps telling event in the years-long effort to unwind apparent scandal in the Alabama corporate, legal, judicial, and law-enforcement worlds.

Where does attention turn next? Ban Balch Publisher K.B. Forbes provides clues, under the headline "After Suicide, National Media and Feds Zero in on Alleged Obstruction and “Criminal Concealment;” RICOs Coming?" The sub-headline -- "Suicide. Resignations. Internal turmoil. Corporate strife" -- provides insight into the unrest that seems to be roiling elite circles in Birmingham and beyond. Writes Forbes:

Since November, Birmingham is seeing what appears to be the collapse of the house of marked cards allegedly propped up by the deep resources of Alabama Power. The Three Stooges (Balch & Bingham, Drummond, and Alabama Power) have seen their dominance stumble.

High-level sources told us in late October that Mark A. Crosswhite, the Chairman and CEO of Alabama Power and a former partner at embattled law abdul kallonfirm Balch & Bingham, was an alleged target of an obstruction investigation.

Federal Judge Abdul K. Kallon, left, resigned along allegedly with two Assistant U.S. Attorneys earlier this month, while Balch partner Bo Lineberry committed suicide last week.

What enormous pressure and worry caused Lineberry to end his life? Was he facing unbearable consequences? Was there an offer on the table that was too brutal for Lineberry to accept?

Seasoned law enforcement authorities tell us the Lineberry suicide spoke volumes about the depth and seriousness of the alleged federal probe.

Attention appears to be spreading beyond Alabama. Writes Forbes:

Now national media are focused on the alleged unsavory and criminal misconduct and alleged abuse of power surrounding the North Birmingham Bribery Scandal and the Office of the U.S. Attorney for the Northern District of Alabama. once run by disgraced ex-U.S. Attorney Jay E. Town, who resigned in 2020.

Concurrently, federal investigators are allegedly looking at obstruction of justice and accusations of “criminal concealment.”

In what looked like sheer panic with the rebirth of the North Birmingham Bribery Scandal, the illustrious Mark White, Mark Crosswhite’s go-to criminal attorney, fumbled the ball and showed how concealment appears to be part and parcel of the work product and a standard operating procedure of the Three Stooges and their hired guns.

As we reported about the “Tale of Two Marks” in January of 2021:

[Alabama Power’s] team of attorneys at White, Arnold, & Dowd, led by white-collar criminal attorney Mark White, filed an avalanche of court pleadings in December [2020] at the courthouse office, over the counter as if it were 1950 not 2020. (We wonder if Mark White still uses a rotary phone, stencil duplicator, and Royal typewriter.)

The delay and “hiding the goods” tactic failed. The paper court pleadings were [immediately] scanned and uploaded by the clerk to Alacourt where we, the CDLU, were able to download them.

Concealment might be an unfamiliar legal term to the general public, but it seems to be central to the unfolding Birmingham story:

Concealment has been a consistent element.

Concealment was discovered in January when Alabama Power’s multi-million-dollar secret contracts (no invoicing required) with obscure political consulting firm Matrix and its founder “Sloppy Joe” Perkins were exposed.

Attorneys for “Sloppy Joe” attempted to call the secret contracts “trade secrets” and sent worthless demand letters to an environmental group and blog that published the concealed million-dollar agreements.

Allegations of non-disclosure and concealed indemnity agreements tied to Alabama Power and Balch have swirled since 2017.

Absolute concealment was achieved when ex-Drummond executive David Roberson’s $75-million civil lawsuit was sealed in its entirety in the Winter of 2021 in an attempt to hide alleged criminal misconduct. The secretive Star Chamber does not allow anyone to follow or read proceedings in the case.

The conservative Alabama Supreme Court reinstated Balch as a defendant in Roberson’s civil case this past February. Bloomberg reported that Balch must face fraud claims due to “misrepresention and concealment.”

chase espyBalch terminated an alleged pedophile months before he was arrested for soliciting a child online. Ex-Balch attorney Chase T. Espy, left,  had worked at the embattled firm for eight years. He then went on to work briefly for Alabama Governor Kay Ivey when he was kay ivey current 2022arrested and immediately fired last August. What caused Balch to fire Espy? What did Balch conceal from the public and the governor, right, regarding Espy?

The biggest concealment appears to be Alabama Power’s alleged secret deal during the North Birmingham Bribery Trial in which the company was “unmentionable” during the trial and criminal defense attorneys allegedly had to clear any mention of Alabama Power with Mark White.

The federal statute of limitations for obstruction of justice is five years. The timing of the alleged federal investigation makes sense. The trial happened in July of 2018. The statute would expire in the summer of 2023.

Those aren't the only worries likely knocking around Birmingham board rooms. Writes Forbes:

Now Alabama Power and their sister-wife Balch & Bingham appear to have even bigger issues coming.

If obstruction of justice indictments are handed down and/or alleged criminal information is disclosed related to the alleged federal probe and the Matrix Meltdown, expect a federal civil RICO lawsuit or two against Balch, Alabama Power, and others.

The first civil RICO lawsuit will be based on the Newsome Conspiracy Case, a travesty of justice in which an innocent man, Burt Newsome, was allegedly targeted, falsely arrested, and defamed by Balch in an attempt to steal his law practice providing legal services to banks.

Newsome was arrested by a cop who was the son of a now-retired Alabama Power executive. Ex-U.S. Attorney Jay E. Town allegedly blocked four investigations related to the Newsome Conspiracy Case.

Another, separate civil RICO lawsuit could be filed on behalf of “fall guy”and ex-Drummond executive David Roberson.

Either way, the Three Stooges and their defenders are exposed in the open no matter how many concealed deals, secret smear campaigns, or Star Chambers they create.

April 13

ny times logoNew York Times, Opinion: Roberts Has Lost Control of the Supreme Court, Stephen I. Vladeck, April 13, 2022. Professor Vladeck, right, teaches courses on the stephen vladeck resizedfederal courts and constitutional law at the University of Texas School of Law. He also co-hosts a podcast on national security law.

Last week the Supreme Court, by a 5-to-4 vote, put back into effect a Trump administration regulation that limited the ability of states to block projects that could pollute rivers and streams. The unsigned, unexplained order in Louisiana v. American Rivers came as part of a highly technical dispute over the scope of the Clean Water Act — and leaves for another day whether the regulation is a valid interpretation of that Nixon-era statute.

john roberts oBut the temporary decision cannot be ignored, especially because of the brief but blistering dissenting opinion written by Justice Elena Kagan. It’s not the first time that liberal justices have called out most of the court’s conservative justices for their increasingly frequent use of the so-called shadow docket — unsigned, unexplained orders like the one last week. But it was significant for being the first time that Chief Justice John Roberts, left, joined her (and Justices Stephen Breyer and Sonia Sotomayor) in doing so.

With the striking public stance, the chief justice illustrated how concerns about the procedural shortcuts the other conservative justices are taking do (and should) cross ideological divides. He also made clear what many have long suspected: The Roberts court is over.

The term “shadow docket” was introduced by the University of Chicago law professor Will Baude in 2015 to describe the more obscure part of the Supreme Court’s work — the thousands of unsigned and usually unexplained orders that the justices issue each year to manage their docket. Those orders are in contrast to the merits docket, the 60 to 70 cases each year that go through rounds of briefing and oral argument before being resolved in long, signed opinions for the court.

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

washington post logoWashington Post, Opinion: Now nothing will stop the Supreme Court from overturning 'Roe,' Paul Waldman, right, April 13, 2022. When the history of how American women lost their paul waldmanreproductive rights is written, the bill-signing that took place in Oklahoma City on Tuesday should be acknowledged as a key moment when the shrinking window of possibility that the Supreme Court might hold back from overturning Roe v. Wade essentially closed forever.

The occasion was Gov. Kevin Stitt (R) signing a bill outlawing almost all abortions in the state, a move that is as plainly unconstitutional as it would be for the state to make it illegal to practice Judaism or criticize the president.

Why is this one bill in this one state so meaningful? Because it makes the death of Roe almost inevitable, and because it highlights Democrats’ impotence in the face of an assault on women’s fundamental rights.

Sometime soon, the court will issue its ruling in Dobbs v. Jackson Women’s Health Organization, a case that concerns Mississippi’s ban on most abortions after the 15th week of pregnancy.

Over the past year or so, there has been a steady shift in what advocates and analysts think the court will decide. At first, many believed the justices would find some clever way to undermine abortion rights without issuing a ruling explicitly overturning Roe. The theory was that, because the issue is so politically volatile and carries risks for the Republican Party, the justices would be hesitant to do it all in one fell swoop. While the court’s most conservative members (particularly Justices Clarence Thomas and Samuel A. Alito Jr.) have made their desire to do so clear, the more incrementalist conservatives, particularly Chief Justice John G. Roberts Jr., would want to proceed carefully even if they shared the same ultimate goal.

So while there was no question they would undermine reproductive rights in significant ways, the final outcome was in doubt. But today, there are fewer and fewer observers who think that’s true. What has changed is not just the actions of the justices themselves, but the part Republican state legislatures are playing in the dance between the court and the political sphere.

Oklahoma and other states with outright bans in the pipeline have essentially forced the court’s hand. As Scott Lemieux points out, stopping short of overturning Roe “only works if Republican-controlled legislatures were willing to play along.” Oklahoma’s ban will be challenged, and sooner or later the court will have to rule on it, or another state ban like it.

Faced with upholding or striking down a near-total ban such as Oklahoma’s, the court can’t take half-steps. The justices can’t find refuge in debating the number of weeks into a pregnancy restrictions might be allowed, or whether some hoops states make women jump through are acceptable and others aren’t. They’ll have to Mitchell_McConnelldecide on the fundamental question: Either women have a right to abortions, or they don’t. And the court’s conservative majority clearly thinks they don’t.

Meanwhile, Republicans know that even in the face of the Supreme Court’s ongoing assault on fundamental rights, only their side seems to care much about the future of the court. So Senate Minority Leader Mitch McConnell (R-Ky.), left, can make it clear that Republicans will never again allow a Democratic president to fill a Supreme Court vacancy, and barely anyone takes notice, as if, hey, that’s just politics.

That’s why my great fear is that the court will overturn Roe this summer, consigning tens of millions of American women unfortunate enough to live in red states to a grim future, and Democrats will issue some stern press releases about it, then after a day or two go back to saying how they care about gas prices, too. Then they’ll be obliterated in the midterms, lose the House and Senate, and tell themselves it was all the left’s fault.

washington post logoWashington Post, Opinion: The Supreme Court may be setting the stage for the mother of all culture clashes, Jennifer Rubin, right, April 13, 2022. Talk to progressive jennifer rubin new headshotactivists involved in just about any cause — abortion rights, racial equality, the environment, gun safety — and you will likely hear a sense of foreboding bordering on panic.

It is not merely the prospect of big Democratic losses in the midterms, although it certainly is a contributing factor; the focus is the increasingly activist Supreme Court, which has a six-seat phalanx ready to dismantle post-1960 America. It has the potential to set off conflict that will make the social turmoil of the last decade look tame.

For many right-wingers, the 1960s was when everything went downhill. Since then, the Supreme Court has issued rulings that they have opposed, such as its guarantee of a right to an attorney, its decision to allow race as one of many factors to correct historical inequities in higher education, and its crystallization of the right of privacy in everything from birth control to gay marriage.

At the same time, the country experienced social upheaval, including an expansion of women’s rights, a dramatic decline in religiosity and greater immigration from countries south of our border, all of which moved the United States away from the White, evangelical Christian society that the right prefers. That has fueled the right-wing freakout for decades, culminating in the MAGA movement. Today, tens of millions of people think White people are discriminated against, immigration is ruining the United States, prayer should be back in schools and the Bible should dictate the law on sexual mores and women’s autonomy.

As Ronald Brownstein recently wrote for CNN: “Most advocates for liberal causes are bracing for the GOP-appointed majority to enable the broad drive underway in red states to retrench an array of previously guaranteed civil rights and liberties (such as voting, abortion and LGBTQ rights) while simultaneously constricting the federal government’s ability to act through regulation or executive orders.” Throw in gun rights, racial equity and immigration, and it’s easy to see how an unelected Supreme Court might rip up whole tracts of public policy.

Those desperate White, Christian Americans who fear that the America they knew is slipping from their grasp are right in the sense that demography is reducing the White vote and the country is becoming more secular. In the public square, they have lost the cultural debate on everything from racial equality to gay rights. (See the huge percentage of voters who know race is still an issue and don’t want to censor educators for fear of offending White people.)

But right-wingers do not intend to let democracy to stand in the way of their political and social dominance. They have used every device at their disposal to impose their minority rule on others, including the electoral college, the filibuster, lifetime Supreme Court appointees handpicked by presidents elected without a popular-vote majority, and the Senate itself. They openly flirt with violence and unabashedly embrace an amoral style of politics in which truth is an inconvenience and anything goes to hold power.

So expect the current Supreme Court term to be tumultuous. The court is expected to tear out precedent by the fistful, striking down abortion rights, gutting affirmative action and evaporating gun regulations. Some sage pundits think this will be no big deal; blue states will adapt to satisfy progressives and red states will do the same to mollify the MAGA crowd. Aside from the constitutional and moral abomination that geography should determine fundamental rights, this take misses a key point.

April 10

 

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

washington post logoWashington Post, Opinion: The court is broken. So is the system that confirms its justices, Ruth Marcus, right, April 10, 2022 (print ed.). The confirmation process for ruth marcus twitter CustomSupreme Court nominees is broken, and so, I fear, is the Supreme Court itself. These developments, mutually reinforcing, were both on sad display this week.

Not long ago, whether to confirm a Supreme Court nominee was not a predictably party-line affair, with a handful or fewer of defectors. In 2005, Chief Justice John G. Roberts Jr. was confirmed with 78 votes, and Democratic senators split equally on the nomination, 22 in favor and 22 against. That lopsided tally — earlier confirmations were, for the most part, more lopsided — is now a quaint artifact of a less polarized era.
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The Senate finds itself now on the verge of a dangerous new reality, in which a Senate controlled by the party opposing the president might simply refuse to confirm a nominee, period. A tradition of deference to presidential prerogatives — of believing that elections have consequences, as Sen. Lindsey O. Graham (R-S.C.) liked to say in one of his earlier incarnations — is over. If the Senate majority is big and unified enough, it will defy the president.

Just wait and see. Republican senators were willing to caricature Ketanji Brown Jackson’s record in search of any excuse to vote against her — even though her addition to the court won’t affect its ideological balance. Imagine what would happen if a Republican appointee were to leave the court during a Democratic presidency. Actually, no imagination needed. Consider what the Senate did — or didn’t do — when Merrick Garland was nominated in 2016 to replace the late Antonin Scalia.

We could endlessly debate how things degenerated to this point: Republicans point to the Bork hearings, the Thomas hearings, the Gorsuch filibuster and the Kavanaugh hearings; Democrats bemoan the Garland blockade and the hurried Barrett confirmation. Neither side has clean hands.

The result is a fiercely partisan process that demeans the Senate and politicizes the court, rendering it a creature of political will and power. At this stage, there is no incentive for either party to back down from this maximalism. Time was (starting with Robert H. Bork), the Senate debated whether a nominee was in or outside the judicial mainstream. That assessment was in the eye of the beholder, of course, but at least it was a nod at deliberation.

April 9

 

Supreme Court nominee Ketanji Brown Jackson tears up briefly and for the only time during her three days of confirmation testimony as U.S. Sen. Cory Booker (D-NJ) consoles her for the vicious slurs and innuendoes that Republicans on the Senate Judiciary Committee launched at her. Shown below are her parents as they observed the highs and lows (Photo via the Associated Press).

Supreme Court nominee Ketanji Brown Jackson tears up briefly and for the only time during her three days of confirmation testimony as U.S. Sen. Cory Booker (D-NJ) consoled her for the vicious slurs laced with sexual and racial innuendoes that Republicans on the Senate Judiciary Committee launched at her, most notably by Ted Cruz (TX), Josh Hawley (MO), Marsha Blackburn (TN)  and Tom Cotton (Photo via the Associated Press).

washington post logoWashington Post, Jackson, after a tough confirmation, celebrates at White House, Cleve R. Wootson Jr., April 9, 2022 (print ed.). The incoming justice becomes emotional as she speaks of what her elevation means to history.

Dabbing tears from her face on the South Lawn of the White House, Judge Ketanji Brown Jackson spoke of her personal journey to the steps of the Supreme Court, and how it dovetailed with the hopes and history of people she had come to symbolize.

“It has taken 232 years and 115 prior appointments for a Black woman to be selected to serve on the Supreme Court of the United States,” she told the crowd. “But we’ve made it. We’ve made it. All of us.”

A day after the Senate confirmed Jackson 53 to 47, the White House hosted a presidential-level victory lap, featuring tear-filled speeches from President Biden and two of the women he has held up as proof that his presidency is making America more equitable: Jackson and Vice President Harris.

It was a history-making moment for Jackson, but also for Biden, who served as vice president to the first Black President, selected the first Black woman to be named vice president, and is now linked to another groundbreaking first.

“This is going to let so much sun shine on so many young women, so many young Black women, so many minorities,” said Biden, who told the crowd that nominating a Black woman to the Supreme Court was one of the first decisions he made when he decided to seek the presidency a third time. “Today is a good day, a day that history is going to remember. And in the years to come, they’re going to be proud of what we did.”

Harris, who spoke just before Biden and presided over Jackson’s Senate confirmation vote a day earlier, said she “will inspire generations of leaders. They will watch your confirmation hearings and read your decisions in the years to come.”

The vice president told the crowd she penned a letter to her goddaughter as she sat in the Senate chamber before the vote. “Her braids are just a little longer than yours,” Harris told Jackson. “But as I wrote to her, I told her what I knew this would mean for her life and all that she has in terms of potential.”

April 8

 

President Biden congratulates Supreme Court nominee Ketanji Brown Jackson at the White House as the U.S. Senate votes to confirm her on Thursday afternoon, April 7, 2022 (Washington Post photo by Oliver Contreras).

President Biden congratulates Supreme Court nominee Ketanji Brown Jackson at the White House as the U.S. Senate votes to confirm her on Thursday afternoon, April 7, 2022 (Washington Post photo by Oliver Contreras).

washington post logoWashington Post, Ketanji Brown Jackson to become first Black female justice in court’s 233-year history, Mike DeBonis, Robert Barnes and Seung Min Kim, April 8, 2022 (print ed.). Jackson secured the support of three Republicans and all members of the Democratic caucus after divisive confirmation hearings. She will be sworn in this summer as the first Black woman in the court’s 233-year history after Justice Stephen G. Breyer ends his tenure.

The Senate voted Thursday to confirm Judge Ketanji Brown Jackson to the Supreme Court, felling one of the most significant remaining racial barriers in American government and sending the first Democratic nominee to the high court in 12 years.

Jackson, a daughter of schoolteachers who has risen steadily through America’s elite legal ranks, will become the first Black woman to sit on the court and only the eighth who is not a White man. She will replace Associate Justice Stephen G. Breyer after the Supreme Court’s term ends in late June or early July.

Thursday’s 53-47 vote represents the culmination of a six-week whirlwind confirmation process for the 51-year-old federal appeals judge.

It began in February with President Biden introducing Jackson as a distinguished nominee who would “help write the next chapter in the history of the journey of America” and reached a climax during two days of tense Senate hearings last month where Republicans sought to paint her as a left-wing radical who had cosseted criminals and terrorists, only for three GOP senators to ultimately reject those claims and support her confirmation.

joe biden kentaji brown jackson kamala harris

washington post logoWashington Post, Analysis: How Ketanji Brown Jackson found a path between confrontation and compromise, Marc Fisher, Ann E. Marimow and Lori Rozsa, Feb. 25, 2022.  If on paper Jackson’s career looks like a bullet train from the Miami suburbs to the nation’s highest court, her path was neither smooth nor straight.

Supreme Court nominee was a ‘child of the ’70s’ who overcame obstacles by finding middle ground Ketanji Brown Jackson, President Biden’s choice to become the first Black woman to serve on the Supreme Court, was a “child of the ’70s,” as she puts it. Raised with an African name, dressed in early childhood in a mini dashiki, she was expected to reap the fruit of the boycotts and sit-ins of the 1960s, taking advantage of the opportunities and equality her parents’ generation had demanded.

But if on paper Jackson’s career looks like a bullet train from the Miami suburbs to the nation’s highest court, her path was neither smooth nor straight. The generational pivot her parents and other civil rights activists sought turned out to be not so simple.

When Jackson was born in 1970, “there was probably a sense of invincibility in that moment,” she said in a speech last year. Johnny and Ellery Brown gave their firstborn a name — Ketanji Onyika — that meant “Lovely One” chosen from a list sent to them by Jackson’s aunt, then a Peace Corps volunteer in West Africa. Early photos show Jackson “rocking Afro-puffs,” she said.

washington post logoWashington Post, Analysis: New version of high court takes shape, Robert Barnes, right, April 8, 2022 (print ed.). Ketanji Brown Jackson’s presence will go a robert barnes twitterlong way toward President Biden’s goal of a Supreme Court that looks more like America,

Her accession culminates an almost complete turnover of the high court in less than a generation. White men for the first time will no longer make up a majority. The oldest and longest-serving justice is Black. Women will be as close to parity as is possible on a nine-member bench, and in a government where the president is 79 and the speaker of the House is 82, the average age of a justice will be 61.

Moreover, the retirement of Justice Stephen G. Breyer this summer and the ascension of Jackson will culminate an almost complete turnover of the Supreme Court in less than a generation.

The news: Senate confirms Jackson as first Black woman on Supreme Court

Jackson’s presence will go a long way toward President Biden’s stated goal of a court that looks more like America. But it won’t impact for now one that is ideologically stacked for conservatives, caught in a political crossfire as intense as any before and facing a host of issues that will stoke rather than dissipate partisan dissatisfaction.

The tense confirmation battle over the first Black woman nominated to the Supreme Court played out along expected partisan lines, even though replacing a liberal justice with one of his like-minded former clerks held no chance of shifting the court’s 6-to-3 conservative edge.

An 83-year-old will be replaced by a 51-year-old, but it is difficult to think of an issue before the court that will be changed because of the swap of Jackson for Breyer.

But the no-holds-barred battle over her confirmation underscored the new reality that for now, filling a Supreme Court vacancy has become dependent on a party controlling both the White House and the Senate. That could mean even more strategic decisions about when a justice retires, said Barbara Perry, a presidential and Supreme Court historian at the University of Virginia’s Miller Center.

 

anita hill 2013 documentary poster

washington post logoWashington Post, Opinions: The Senate Judiciary Committee mistreated Judge Jackson. I should know, Anita Hill, right, April 8, 2022 (print ed.). Anita Hill, shown above in a document film poster and at right, is a professor anita hillof social policy, law and women’s studies at Brandeis University.

The shameful spectacle of the Senate Judiciary Committee during the confirmation hearings for Supreme Court nominee Ketanji Brown Jackson makes clear: The confirmation process is broken and the panel must act to restore people’s faith in it.
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This is not simply about Jackson’s reputation, which was repeatedly smeared by Republican senators peddling false narratives about her supposed coddling of child pornographers and terrorists. It is about the legacy and future of the Senate and the Supreme Court itself.

anita hill clarence thomas time scandalI know something about being mistreated by the Senate Judiciary Committee. During the confirmation hearing for Justice Clarence Thomas in 1991 (characterized at left by a Time Magazine covere, among other ways), I was subjected to attacks on my intelligence, truthfulness and even my sanity when I testified about my experience working for the nominee at the Education Department and the Equal Employment Opportunity Commission. In a spectacularly low moment, senators sought out slanderous statements from my former students.

In some ways, the committee has changed for the better since then: There are now four women on the panel and one Black member. Still, when I heard predictions before the hearing that Republicans would offer little resistance to Jackson’s confirmation, I knew, from painful experience, that assessment was overly optimistic.

Even so, I was shocked by the interrogation of Jackson, a nominee with stellar credentials and more judicial experience than any of the sitting justices when they were nominated. It was obvious that no matter how composed, respectful or brilliant her responses, her critics’ only goal was to discredit her. I appeared as a witness before the committee and Jackson as the nominee, but in both situations Republican senators demonstrated their willingness to employ racist and sexist attacks.

It shouldn’t be this way, and it doesn’t have to. The committee should adopt — and enforce — standards such as those that exist for taking testimony in federal court proceedings. Questions should be relevant and well-founded. Witness-badgering should not be tolerated.

Gotcha questions like how to define a woman, asked by Tennessee Sen. Marsha Blackburn (R), have no place in the hearing room, and fall short of what should be expected of the Senate during its exercise of its advice and consent role. The same is true of Texas Sen. Ted Cruz’s (R) focus on how critical race theory is supposedly being taught in the private school on whose board Jackson sits. A confirmation hearing should be about learning how a person will judge, not how well she handles specious browbeating.

Women are vulnerable to sexist campaigns aimed at undermining their intelligence and integrity. And women of color must overcome both sexism and racism that is called into play. Ignoring Jackson’s credentials, her critics dismissively labeled her an affirmative action nominee and her opinions as outside the mainstream of acceptable legal reasoning.

April 6

washington post logoWashington Post, Roberts joins high court’s liberals in criticizing ‘shadow docket’ pollution ruling, Robert Barnes, April 6, 2022. In a first, chief justice agrees conservatives’ ruling marked an abuse of the court’s emergency powers.

Conservatives on the Supreme Court Wednesday reinstated for now a Trump-era environmental rule that limited the ability of states to block projects that john roberts ocould pollute rivers and streams, a decision more notable because Chief Justice John G. Roberts Jr., right, joined liberals in calling it an abuse of the court’s emergency powers.

The five members of the court who granted the request from Louisiana, other states and the oil and gas industry did not explain their reasoning, which is common in emergency requests at the court.

But Justice Elena Kagan, below left, dissenting along with Roberts and Justices Stephen G. Breyer and Sonia Sotomayor, said her conservative colleagues were turning what critics have called the court’s “shadow docket” into something it was never intended to be.

Elena Kagan O HRThe majority’s order “renders the Court’s emergency docket not for emergencies at all,” Kagan wrote. “The docket becomes only another place for merits determinations — except made without full briefing and argument.”

Alito lambasts use of term ‘shadow docket’ to describe the emergency applications at Supreme Court

Kagan said the applicants had waited months to bring the request and provided no evidence that they would suffer irreparable harm if the Supreme Court did not intervene, which is one of the essential elements necessary for putting on hold a lower court’s order.

Democratic members of Congress have been increasingly critical of the court’s use of the emergency docket, which has expanded since Justice Amy Coney Barrett joined the court to provide a more consistent conservative majority. She granted the stay along with Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh.

Stephen Vladeck, a University of Texas law professor who has documented the court’s use of the shadow docket, said Wednesday’s order was significant for what it says about the chief justice’s role on the court.

“This is the ninth time that Chief Justice Roberts has publicly been on the short side of a 5-4 ruling since Justice Barrett’s confirmation,” Vladeck said. “Seven of the nine have been from shadow docket rulings. This is the first time, though, that he’s endorsed criticism of the shadow docket itself.”

ny times logoNew York Times, Supreme Court Revives Trump-Era Environmental Regulation, Adam Liptak, April 6, 2022. The regulation, which was welcomed by industry groups, limited the role of states in enforcing the Clean Water Act.

The Supreme Court on Wednesday reinstated an environmental regulation from the Trump administration that restricted the role states play in enforcing the Clean Water Act.

epa general logoThe court’s brief, unsigned order gave no reasons, which is typical when the justices act on an emergency application.

Four justices dissented, saying the majority had used a case on what critics call the court’s shadow docket to issue a significant ruling without adequate consideration.

Writing for the dissenters, Justice Elena Kagan said the court should have allowed the appeal to proceed in the ordinary course.

“The applicants have given us no good reason to think that in the remaining time needed to decide the appeal, they will suffer irreparable harm,” she wrote. “By nonetheless granting relief, the court goes astray.”

Recent Headlines

April 5

 

virginia thomas donald trump jr amazon 2018

Ultra-right activist Virginia Thomas, a longtime lobbyist for extreme causes who has made vast amounts of money in key positions and wife of Associated Supreme Court Justice Clarence Thomas, poses four years ago in the Trump International Hotel with Donald Trump Jr. Within the Trump Town House on Insurrection Eve, the epicenter of the epicenter was a blue-walled conference room with a flag at one end echoing Ali Alexander’s (and other insurrectionists’) favored refrain on Insurrection Eve: “1776!” Alexander’s favored use of the date has long been the phrase, “1776 [violence] is always an option!”

washington post logoWashington Post, Fact Checker Analysis: Klobuchar claims Ginni Thomas advocated ‘for an insurrection,’ Glenn Kessler, April 5, 2022. After an account of comments (below) appeared in The Washington Post, a reader requested a fact check.

He said his reading of the texts by Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, were “far-fetched” but did not support the statements by Klobuchar and Pelosi that Thomas advocated an “insurrection” or a “coup.” The lawmakers made those remarks in calling on Justice Thomas to recuse himself from hearing cases related to the Jan. 6, 2021, attack on the U.S. Capitol.

“The facts are clear here. This is unbelievable. You have the wife of a sitting Supreme Court justice advocating for an insurrection, advocating for overturning a legal election to the sitting president’s chief of staff.”

Sen. Amy Klobuchar (D-Minn.), in remarks on ABC’s “This Week,” March 27

“If your wife is an admitted and proud contributor to a coup of our country, maybe you should weigh that in your ethical standards.”

House Speaker Nancy Pelosi (D-Calif.), in remarks to reporters, March 31

Of the two quotes, Pelosi is on slightly stronger ground. A coup often involves military force, but it can also be defined as an illegal change in government. Few legal scholars supported Trump’s interpretation of Pence’s role. If Pence had acted to block the vote, he would have been challenged. Pelosi might have halted the joint session of Congress before such a vote could take place, resulting in a constitutional crisis. “Contributor to” is also weaker language than “advocated for.”

We will leave Pelosi’s comment unrated. Readers can make their own judgment about whether it is appropriate.

“Insurrection” is virtually always defined as a violent uprising against a government. Thomas may have wanted to overturn the results of the election, but her texts do not back the idea that she supported the violent tactics by the people who assaulted the Capitol. The texts are filled with falsehoods, but it’s not as clear, as Klobuchar says, that Thomas supported an insurrection. Klobuchar earns Two Pinocchios.

washington post logoWashington Post, Retropolis, The Past, Rediscovered: The first Jewish justice was also the first to face confirmation hearings, Ronald G. Shafer, April 5, 2022 (print ed.). Until 1916, Congress didn’t conduct public hearings on Supreme Court nominees. That changed when President Woodrow Wilson nominated Boston lawyer Louis D. Brandeis, right, to be the high court’s first Jewish justice.

louis brandeisThe Senate quickly convened the first confirmation hearings. Its stated reason was that the 59-year-old lawyer was a controversial liberal who might lack “judicial temperament.” But antisemitism was an uneasy undercurrent in the debate, and Brandeis himself suspected his religion was one of the main causes for skepticism of his appointment.

The Senate hearings were contentious, like the recent confirmation hearings of Judge Ketanji Brown Jackson to be the first Black woman on the Supreme Court. But unlike Jackson, Brandeis didn’t have to face a barrage of questions, because he wasn’t present at the proceedings.

April 4

 

Supreme Court Justice nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee on Tuesday. (Anna Moneymaker/Getty Images)

Supreme Court Justice nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee on Tuesday, March 22, 2022.

washington post logoWashington Post, Jackson on course for confirmation, with 2 more GOP senators in favor, Mike DeBonis and Seung Min, April 4, 2022. The Supreme Court nominee is now poised to win final approval by the end of the weekThe Senate put Ketanji Brown Jackson on a clear track to be confirmed later this week as the Supreme Court’s 116th justice — and its first Black woman — after three Republicans joined Democrats to advance her nomination in a Monday vote.

Sens. Lisa Murkowski of Alaska and Mitt Romney of Utah become the second and third Republicans to announce support for Jackson, joining Sen. Susan Collins of Maine, who publicly backed the judge last month.

All 50 members of the Democratic caucus also backed Jackson in a 53-to-47 procedural vote Monday evening, but the late-breaking support of the two GOP senators represented a minor triumph for President Biden and congressional Democrats who were eager to put a bipartisan stamp of approval on a nominee whom many Republicans had eagerly painted as a soft-on-crime leftist radical.

mitt romney brown jacksonIn a statement, Murkowski praised Jackson’s qualifications and temperament, as well as her “demonstrated judicial independence” and “the important perspective she would bring to the court” as a former Supreme Court law clerk, federal public defender, trial judge and now appeals court judge.

Her decision, she added, “also rests on my rejection of the corrosive politicization of the review process for Supreme Court nominees, which, on both sides of the aisle, is growing worse and more detached from reality by the year.”

In his own statement, Romney also praised Jackson, declaring his support after concluding that she is a “well-qualified jurist and a person of honor.”

The two Republicans made their statements just hours after a Senate panel deadlocked on her nomination along party lines, capping off several frenetic weeks of personal meetings, days of rigorous testimony and hours of intense sparring about her judicial record.

The Senate Judiciary Committee spent more than three hours debating Jackson’s nomination Monday, with its 22 members clashing over Jackson’s qualifications for sitting on the nation’s highest court. Jackson, 51, was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit less than a year ago, after about eight years as a federal trial court judge in Washington.

washington post logoWashington Post, Senate panel deadlocks on Ketanji Brown Jackson’s Supreme Court nomination, Seung Min Kim and Mike DeBonis, April 4, 2022. Senate Judiciary Committee’s tie vote sets up the final confirmation of the first Black female justice by the end of the week.

Ketanji Brown Jackson took a key step Monday toward becoming the Supreme Court’s 116th justice — and its first Black woman — when a Senate panel voted to advance her nomination, capping off frenetic weeks of personal meetings, days of rigorous testimony and hours of intense sparring about her judicial record.

Ahead of the vote, the Senate Judiciary Committee spent more than three hours debating Jackson’s nomination Monday, with its 22 members sparring over Jackson’s qualifications for sitting on the nation’s highest court. Jackson, 51, was confirmed to the U.S. Court of Appeals for the D.C. Circuit less than a year ago after nearly a decade as a federal trial court judge in Washington.

washington post logoWashington Post, Editorial: Republican excuses for rejecting Jackson are absurd, Editorial Board, April 4, 2022 (print ed.). Judge Ketanji Brown Jackson, President Biden’s Supreme Court nominee, seems to be getting rave reviews from Republicans.

Sen. Lindsey O. Graham (S.C.) said that she is “a person of exceptionally good character, respected by her peers and someone who has worked hard to achieve her current position.” Sen. Ben Sasse (Neb.) declared that she “has impeccable credentials and a deep knowledge of the law.” Obviously, Judge Jackson exceeds the standard that should apply to Supreme Court nominees: that they be well-qualified, possess an even temperament and sit within the judicial mainstream.

Yet Mr. Graham, Mr. Sasse and other Judiciary Committee Republicans are vowing to oppose advancing her nomination when the panel meets on Monday.

The reasons they have concocted are not credible. Mr. Graham voted to confirm Judge Jackson to the U.S. Court of Appeals for the District of Columbia Circuit, the second-most powerful court in the country, less than a year ago. Yet Mr. Graham has suddenly concluded that she has a “record of judicial activism.”
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Mr. Sasse complained that Judge Jackson “refused to claim originalism as her judicial philosophy.” In fact, the extent to which she embraced originalism made many liberals uncomfortable. “I believe that the Constitution is fixed in its meaning,” Judge Jackson said in her confirmation hearings. “I believe that it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.” If that is not good enough for Mr. Sasse, he is committing to reject any Supreme Court nominee selected by a Democratic president. Perhaps that is the point.

Senators should not impose an originalism test or a living constitutionalism test or any other crude philosophical standard on judicial nominees. The correct way to interpret the Constitution is open to legitimate debate, each judge — even each originalist judge — is different, and presidents should generally get high-quality picks confirmed. Otherwise the federal judiciary would become more political and less effective.

Meanwhile, Senate Minority Leader Mitch McConnell (Ky.) announced he would vote against confirming Judge Jackson because she refused to answer democratic donkey logoquestions about expanding the Supreme Court. Yet he rammed through Justice Amy Coney Barrett even though she also avoided answering the question during her confirmation hearings.

Republican senators’ hypocrisy peaks when they complain that Democrats mistreated past GOP nominees, such as Justice Barrett and Justice Brett M. Kavanaugh. It was Republicans who obliterated the last shreds of goodwill in the judicial confirmation process when they blocked then-Judge Merrick Garland, whom President Barack Obama nominated in 2016 to replace the late Antonin Scalia, based on scant principle whatsoever.

There is one notable exception: Sen. Susan Collins (R-Maine) announced she would vote to confirm Judge Jackson, a lonely stand that would not have been considered brave in the past — but is now. Other Republicans still have the chance to follow her lead; they can do themselves, their party and the country a service if they do.

For now, by heaping praise on Judge Jackson while opposing her nomination, Republicans seek to obscure the unattractive image of their almost entirely White caucus rejecting the first Black woman ever nominated to the high court. Kind words cannot disguise the fact that they are grasping for pretexts, each more preposterous than the last, to oppose this historic nominee. Their actions will speak louder now — and in the history books.

April 2

 

Supreme Court Justice nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee on Tuesday. (Anna Moneymaker/Getty Images)

Supreme Court Justice nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee on Tuesday, March 22, 2022.

washington post logoWashington Post, Analysis: Americans disapprove of GOP pushback on Ketanji Brown Jackson, poll says, Aaron Blake, April 2, 2022 (print ed.). Republicans pledged to treat Jackson better than Democrats treated Kavanaugh. Americans didn’t see it that way.

At the start of Ketanji Brown Jackson’s Supreme Court hearings last week, Republicans made a solemn promise: They would not treat her as badly as Democrats had treated Brett M. Kavanaugh during his 2018 confirmation hearings — a set of circumstances Sen. Ted Cruz (R-Tex.) called “one of the lowest moments in the history of this [Senate Judiciary] committee.”

The reviews are in. And not only do Americans support Jackson’s confirmation significantly more than they supported other recent nominees — they also view Republicans’ handling of it about as poorly as they view Democrats’ handling of Kavanaugh, if not worse.

A Quinnipiac University poll this week was the latest to show relatively strong support for Jackson’s confirmation: 51 percent supported it, while 30 percent opposed it. Support for her is higher than it was for the confirmations of Trump’s last two nominees, including Kavanaugh, whose confirmation Americans opposed. A CNN poll showed Americans opposed it by as much as double digits.

 

merrick garland new

ny times logoNew York Times, Garland Faces Growing Pressure as Jan. 6 Investigation Widens, Katie Benner, Katie Rogers and Michael S. Schmidt, April 2, 2022. The inquiry is a test for President Biden and Attorney General Merrick Garland, who have promised to restore the Justice Department’s independence.

Immediately after Merrick B. Garland was sworn in as attorney general in March of last year, he summoned top Justice Department officials and the F.B.I. director to his office. He wanted a detailed briefing on the case that will, in all likelihood, come to define his legacy: the Jan. 6 assault on the Capitol.

Even though hundreds of people had already been charged, Mr. Garland asked to go over the indictments in detail, according to two people familiar with the meeting. What were the charges? What evidence did they have? How had they built such a sprawling investigation, involving all 50 states, so fast? What was the plan now?

Justice Department log circularThe attorney general’s deliberative approach has come to frustrate Democratic allies of the White House and, at times, President Biden himself. As recently as late last year, Mr. Biden confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted, according to two people familiar with his comments. And while the president has never communicated his frustrations directly to Mr. Garland, he has said privately that he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.

Speaking to reporters on Friday, Mr. Garland said that he and the career prosecutors working on the case felt only the pressure “to do the right thing,” which meant that they “follow the facts and the law wherever they may lead.”

Still, Democrats’ increasingly urgent calls for the Justice Department to take more aggressive action highlight the tension between the frenetic demands of politics and the methodical pace of one of the biggest prosecutions in the department’s history.

“The Department of Justice must move swiftly,” Representative Elaine Luria, Democrat of Virginia and a member of the House committee investigating the riot, said this past week. She and others on the panel want the department to charge Trump allies with contempt for refusing to comply with the committee’s subpoenas.

“Attorney General Garland,” Ms. Luria said during a committee hearing, “do your job so that we can do ours.”

This article is based on interviews with more than a dozen people, including officials in the Biden administration and people with knowledge of the president’s thinking, all of whom asked for anonymity to discuss private conversations.

In a statement, Andrew Bates, a White House spokesman, said the president believed that Mr. Garland had “decisively restored” the independence of the Justice Department.

April 1

 

Supreme Court nominee Ketanji Brown Jackson tears up briefly and for the only time during her three days of confirmation testimony as U.S. Sen. Cory Booker (D-NJ) consoles her for the vicious slurs and innuendoes that Republicans on the Senate Judiciary Committee launched at her. Shown below are her parents as they observed the highs and lows (Photo via the Associated Press).

Supreme Court nominee Ketanji Brown Jackson tears up briefly and for the only time during her three days of confirmation testimony as U.S. Sen. Cory Booker (D-NJ) consoles her for the vicious slurs laced with sexual and racial innuendoes that Republicans on the Senate Judiciary Committee launched at her, most notably by Ted Cruz (TX), Josh Hawley (MO), Marsha Blackburn (TN)  and Tom Cotton (Photo via the Associated Press). Shown below are her parents as they observed the highs and lows.

ny times logoNew York Times, How Low Will Senate Republicans Go on Ketanji Brown Jackson? Linda Greenhouse (shown at right on the cover of her memoir, "Just a linda greenhouse cover just a journalistJournalist"), April 1, 2022. When Judge Ketanji Brown Jackson’s Supreme Court nomination reaches the Senate floor soon, every Republican who votes against her confirmation will be complicit in the abuse that the Republican members of the Judiciary Committee heaped on her.

Every mischaracterization of Judge Jackson’s record on the bench. Every racist dog whistle about crime. Every QAnon shout-out about rampant child pornography. Every innuendo that a lawyer who represents suspected terrorists supports terrorism.

So far, only one Republican senator, Susan Collins of Maine, has said she will vote to confirm Judge Jackson. The Republican senators who don’t disavow their colleagues’ behavior during last week’s confimation hearing will own it. All of it.

Every Republican voting no will be Lindsey Graham of South Carolina, asking, “On a scale of one to 10, how faithful would you say you are in terms of religion?” Each one will be Ted Cruz of Texas, distorting the argument in a law review note by the nominee to suggest slyly that beginning as a student she harbored an agenda of going easy on sex criminals.

Each Republican will even sink so low as to be Marsha Blackburn of Tennessee, moving her pen across the page as she read the right-wing talking points and demanding that the nominee define the word “woman.” The definition that came to mind, although not to Judge Jackson’s lips, was “a mature female who can maintain her composure while being badgered on national television by posturing politicians.”

I have observed, and written about for this newspaper, every Supreme Court confirmation hearing since Sandra Day O’Connor’s in 1981, the first to be televised live. There have been good times and bad, obviously. The O’Connor hearing was one of the good ones. There were a few testy moments, thanks not to Democrats but to a few of the nominee’s fellow Republicans who thought her insufficiently dedicated to the anti-abortion cause. But the mood was decidedly one of bipartisan celebration for the barrier about to be broken by confirming the first woman to become a Supreme Court justice, and the vote on the Senate floor was 99-0.

Senator Amy Klobuchar, Democrat of Minnesota, tried in her opening statement last week to summon such a sense of unity. “This entire hearing is about opening things up,” she said, noting that as the 116th justice, Judge Jackson would be the first Black woman. Senator Klobuchar continued, “We are a nation that must re-embrace the simple principle that unites us as Americans, and that is that our country is so much bigger in what unites us than what divides us.”

It was not only sad but also shameful that the Judiciary Committee’s Republicans couldn’t rise to the occasion. Granted, the goal of their leader, Senator Mitch McConnell of Kentucky, has always famously been known to withhold as many votes as possible from a Democratic president’s Supreme Court nominee. (In 2016, of course, he deprived President Barack Obama’s nominee, Merrick Garland, of any vote whatsoever.)

 

March 2022 Update

March 31

 

nancy pelosi gavel safe oenwashington post logoWashington Post, Pelosi says Ginni Thomas texts show need for Supreme Court ethics code, Felicia Sonmez and Amy B Wang, March 31, 2022. House Speaker Nancy Pelosi (D-Calif.) on Thursday renewed her call for the Supreme Court to institute a code of ethics, citing the recent revelations that Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, pressed the Trump White House to try to overturn President Biden’s 2020 victory.

Following reports about the actions of Virginia Thomas, who goes by Ginni, several Democrats have called on Clarence Thomas to recuse himself from certain Supreme Court cases related to the 2020 election.

Pelosi, shown above in a file photo, on Thursday declined to say whether Thomas should recuse himself or resign from the court, telling reporters, “I don’t think he should have ever been appointed, so, we could take it back to there.”

But she did say that the court’s lack of a code of ethics presents a serious problem.

“They have no code of ethics,” Pelosi said at her weekly news conference at the Capitol. “And it’s — really? The Supreme Court of the United States? They’re making judgments about the air we breathe and everything else, and we don’t even know what their ethical standard is? … Why should they have lower standards than members of Congress in terms of reporting and all the rest?”

Pelosi noted that H.R. 1, the For the People Act, includes language calling for the establishment of a judicial code of ethics. The measure passed the House this month in a largely party-line vote, but its chances are dim in the Senate.

The speaker suggested that a House committee may have a hearing on the code of conduct issue soon, although she did not elaborate.

United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r). (Safe Image)On Thomas, in particular, Pelosi said little about the Supreme Court justice (shown in a file photo with his wife) but did make a pointed remark about his wife’s text messages urging the Trump White House to work to overturn Biden’s win.

“I’ve heard people say from time to time, ‘Well, it’s a personal decision of a judge as to whether he should recuse himself,’ ” Pelosi said. “Well, if your wife is an admitted and proud contributor to a coup of our country, maybe you should weigh that in your ethical standards.”

Raw Story, Judge blocks all new Florida voter suppression laws — then knocks the Supreme Court for putting voting rights 'under siege,' Sarah K. Burris, March 31, 2022. In a 288-page document, District Court Judge Mark Walker blocked the Florida voter suppression bill and specifically called out judges and the Supreme Court for undercutting the Voting Rights Act. Mark Joseph Stern, Slate's court and law writer, cited several excerpts in the judge's decision that make the decision groundbreaking. Until the case goes to the Supreme Court, Florida's suppression laws will be stopped.

Republicans around the country have been pushing voter suppression laws after former President Donald Trump lost the 2020 election after a record-setting voter turnout. In Texas, for example, Republicans confessed that the law they passed putting additional barriers on vote by mail wasn't due to an outbreak of voter fraud. Instead, it was to make people feel better.

"This is a preventative measure for us," Republican state Rep. Travis Clardy said. "I think it is our job to make sure that doesn't blossom into a problem that disturbs the underlying and one of the underpinnings of our democracy, and that is confidence in our elections."

Florida SB 90 created their own restrictive legislation that Gov. Ron DeSantis signed in 2021. The Florida voter suppression law makes voter registration more difficult, puts additional barriers on vote by mail and changes the rules for election observers.

"Having reviewed all the evidence, this Court finds that, for the most part, Plaintiffs are right" wrote Judge Walker. "Thus, as explained in detail below, this Court enjoins Defendants from enforcing most of SB 90’s challenged provisions. In so ruling, this Court recognizes that the right to vote, and the VRA particularly, are under siege."

martin luther king stampHe went on to cite Dr. Martin Luther King, Jr., shown at right on a postage stamp, who wrote in a letter to the New York Amsterdam News in June 1965 about the VRA that “to deny a person the right to exercise his political freedom at the polls is no less a dastardly act as to deny a Christian the right to petition God in prayer."

Then he dropped the hammer on the Florida law, explaining that Florida "has repeatedly, recently, and persistently acted to deny Black Floridians access to the franchise," meaning the right to vote. He thus placed the state back under preclearance, which mandates that any election laws in the state must be approved by the federal government.

He went on to detail an extensive "horrendous history of racial discrimination in voting," and explained that when the Florida Legislature passes so many laws that disproportionately burden Black voters, "this Court can no longer accept that the effect is incidental."

Judge Walker then attacked the Supreme Court, recalling Chief Justice John Roberts 2013 majority opinion, "Voting discrimination still exists; no one doubts that. The question is whether the act's extraordinary measures, including its disparate treatment of the states, continue to satisfy constitutional requirements."

"Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, voter turnout and registration rates in covered jurisdictions now approach parity," the majority opinion continued. "Blatantly discriminatory evasions of federal decrees are rare and minority candidates hold office at unprecedented levels."

Justice Ruth Bader Ginsburg responded with a dissent, writing, "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."

According to Judge Walker, "In short, without explaining itself, the Court has allowed its wholly judge-made prudential rule to trump some of our most precious constitutional rights."

He said that the parts of the Florida law were inspired by racist desires to suppress Black votes. He then put the state back under the VRA's preclearance restrictions and said that the state must get federal approval before passing any new laws limiting voter registration, drop boxes, or "line warming."

So-called "line warming" is when people bring food, water, blankets, jackets, or even chairs while people spend hours standing in line to vote. Georgia passed a law this year banning any efforts to help anyone in line trying to vote. So, if someone has to use the bathroom after several hours, they have to do it on the sidewalk outside the poll place or soil themselves, otherwise, they'll lose their place in line.

March 28

 United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r). (Safe Image)

United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r).

washington post logoWashington Post, Democrats urge Clarence Thomas to recuse himself after wife’s texts, Amy B Wang and Brady Dennis, March 28, 2022 (print ed.). Republicans continue to defend the justice’s integrity. Two Democratic members of the Senate Judiciary Committee on Sunday called on Supreme Court Justice Clarence Thomas to recuse himself from certain cases after his wife pressed the Trump White House in text messages to try to overturn the results of the 2020 presidential election.

The texts by Virginia Thomas, who goes by Ginni and is a lawyer by training, first reported by The Washington Post and CBS News, revealed she had reached out to then-White House Chief of Staff Mark Meadows multiple times in the weeks after the 2020 election pushing the baseless charge that the election had been stolen and urging Trump officials not to accept the results. At the time, President Donald Trump and his allies had vowed to take their efforts to overturn the election results to the Supreme Court.

Sen. Amy Klobuchar (D-Minn.), a member of the Senate Judiciary Committee, which has oversight of federal judicial and Supreme Court nominees, called the situation a “textbook case” in which Thomas should recuse himself from cases related to the 2020 election. Klobuchar suggested the integrity of the Supreme Court is on the line.

“The facts are clear here. This is unbelievable,” Klobuchar said on ABC News’s “This Week.” “You have the wife of a sitting Supreme Court justice advocating for an insurrection, advocating for overturning a legal election to the sitting president’s chief of staff. And she also knows this election, these cases are going to come before her husband.”

“This is a textbook case for removing him, recusing him from these decisions,” she added.

Thomas was the only justice to dissent in the Supreme Court’s decision in January to reject Trump’s request to block documents from being released to the House select committee investigating the Jan. 6, 2021, insurrection.

Judges who serve on other federal courts are required by ethics rules to recuse themselves in cases that would give the appearance of impartiality, but Supreme Court justices are not subject to an ethical code — a double standard that Klobuchar said Chief Justice John G. Roberts Jr. needed to change.

“All I hear is silence from the Supreme Court right now, and that better change in the coming week,” Klobuchar said. “So not only should he recuse himself, but this Supreme Court badly needs ethics rules.”

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

washington post logoWashington Post, Opinion: The Supreme Court must protect itself from the Thomas duo, Jennifer Rubin, right (and author of the recent book Resistance, shown below), March 28, 2022. The Ginni Thomas scandal jennifer rubin new headshotsounds like a movie script gone awry. What, a wife of a Supreme Court justice is going full-on conspiracy theorist and rooting on an effort to overthrow an election? Who would buy that?

Yet here we are: In a series of 29 text messages sent after the 2020 election, Thomas communicated with then-White House chief of staff Mark Meadows, regurgitating specious claims of voter fraud and clearly egging on efforts to undo the election of Joe Biden.

The Post’s Bob Woodward and CBS News’s Robert Costa, formerly of The Post, report that the messages “reveal an extraordinary pipeline between Virginia Thomas, who goes by Ginni, and President Donald Trump’s top aide during a period when Trump and his allies were vowing to go to the Supreme Court in an effort to negate the election results.”

jennifer rubin book resistanceSupreme Court Justice Clarence Thomas, despite his wife’s deep involvement with a White House scheme to overturn the results of the election, participated in two cases involving the 2020 election — one in which the court denied certiorari in a case to throw out electoral votes and another in which the court turned down a request by Trump to halt disclosure of documents from the Trump administration relating to the coup attempt. In that case, Clarence Thomas indicated he would have granted the request.

Aside from highlighting the degree to which the political rot has permeated the Republican Party, the scandal raises the prospect that a Supreme Court justice may have ruled in cases in which he should have recused himself.

Rep. Ted Lieu (D-Calif.), who sits on the House Judiciary Committee, tells me, “Justice Thomas’s objectivity is in question and the implications of that for the Court are grave. Above all else, Supreme Court justices need to be impartial and far removed from politics.” He adds, “I think what Ginni Thomas was doing around the insurrection was crazy, but ultimately that is a matter of politics.” By contrast, Lieu argues, “Justice Thomas wielding his significant power to attempt to shield his wife and himself from scrutiny is an abuse of his role as a Supreme Court justice.”

Daniel Goldman, who served as counsel to the House managers during Trump’s first impeachment, explains: “Future recusal is necessary but not sufficient because the damage to Thomas’s appearance of impartiality is done. There will be recusal motions in the future — as there should be — but that is a difficult and unusual path because there is no code of ethics that applies to the Supreme Court.” Goldman argues that an “a congressional investigation is necessary here, especially to understand what Thomas knew and whether there was coordination between the two.” He adds: “An impeachment investigation is not at all out of the question, but I would start with a standard oversight investigation.”

The good news is that the House select committee investigating the Jan. 6 insurrection is up and running with Ginni Thomas’s texts in hand. Rep. Jamie Raskin (D-Md.), who serves on the committee, would not speak specifically to the Thomas issue, but he did tell me, “The coordinated attack on our government involved both a violent insurrection from the outside and aggressive moves on the inside to overthrow our constitutional order with a counterfeit process based on mass lies and individual usurpations of power.”

He added that he was “profoundly interested” in investigating any effort to provide “legal and constitutional cover” for the strategies to overthrow the election, including the scheme by former Trump lawyer John Eastman to have Vice President Mike Pence throw out electoral votes and the “Green Bay Sweep,” which former Trump adviser Peter Navarro devised to decertify states that went to Biden.

The Thomas scandal cannot be ignored. As University of Michigan law professor Leah Litman tells me, “The court protects its reputation in large part through good will, and by acting like a respectable institution. Ginni Thomas is burning through that good will at a rapid pace — making the court and its justices appear corrupt, as if they are or could be casting votes in cases based on the interest or possible involvement of their spouse.” Litman rightly calls Thomas’s conduct “appalling.”

We need to find out what precisely the justice knew about his wife’s activities and why he did not recuse himself from election-related cases. No entity has a greater interest in getting to the bottom of this than the Supreme Court itself. Unless it removes any hint of conflict and impropriety, the slow leak of the court’s credibility will become a torrent.

 

Supreme Court Justice nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee on Tuesday. (Anna Moneymaker/Getty Images)

Supreme Court Justice nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee on Tuesday, March 22, 2022.

washington post logoWashington Post, Opinion: The GOP magnifies a right-wing court’s legitimacy problem, E.J. Dionne Jr., right, March 28, 2022 (print ed.). By choosing the ej dionne w open necklow road and smearing Judge Ketanji Brown Jackson with false charges and vile innuendo, conservative Republicans did more than engage in self-besmirching behavior. They also missed an opportunity to advance what should have been their larger purposes. They will come to regret their choice.

President Biden nominated an exceptionally qualified and engaging jurist who is poised to become the first Black woman on the Supreme Court. Republicans had an opportunity to address two problems at once — at no cost to their overall objective of turning the U.S. Supreme Court into a rubber stamp for conservative ideology.

By offering Jackson at least a respectful hearing, Republican senators could have taken a step toward easing the legitimacy crisis the Supreme Court confronts because of the GOP’s relentless packing of the nation’s highest judicial body. Rejecting extreme partisanship might have lowered the political temperature around the court, to the benefit of its 6-to-3 conservative majority.

And by avoiding the racial tropes they trotted out — denunciations of critical race theory, which Jackson has never embraced, and talk from Sen. Ted. Cruz (R-Tex.) about books teaching that “babies are racist” — the Republicans could have shown they mean what they say about judging people by “the content of their character.” Momentarily at least, they might have backed the party away from backlash politics.

There would have been no cost to any of this because Jackson’s confirmation, now nearly assured with her endorsement on Friday from Sen. Joe Manchin III (D-W.Va.), will not change the balance on the court at all. She is replacing another liberal (and one of her mentors), Justice Stephen G. Breyer.

Alas, as Carl Hulse, the New York Times’s veteran Washington correspondent dryly observed, “Republicans could not help themselves.”

What happened last week was not just politics as usual. The relentless attack on Jackson’s sentencing in child pornography cases was despicable. By sheer force of repetition, amplified by conservative media, an obviously brilliant jurist and devoted mother will forever be branded in the minds of some Americans as “soft on child porn.”

It’s revolting because, as The Post’s Glenn Kessler showed in a meticulous fact check, the claim by Sen. Josh Hawley (R-Mo.) that Jackson “has a pattern of letting child porn offenders off the hook” amounted to “twisting the judge’s record.” It’s contemptible because as Linda Qiu reported in the New York Times, “all of the Republican critics” of Jackson “had previously voted to confirm judges who had given out prison terms below prosecutor recommendations” on child sex abuse crimes. The words “double standard” don’t begin to capture what’s going on here.

And it’s truly astonishing (though, alas, not surprising) that Cruz pressed Jackson on the racial content of children’s books that he said were taught at Georgetown Day School, where she serves on the Board of Trustees. Kudos to Jackson for telling Cruz of the books: “They don’t come up in my work as a judge which I am, respectfully, here to address.” The word “respectfully” did a lot of nice work in that sentence.

To turn the nomination of the first Black woman to the court into an occasion for raising racial themes Republicans plan to use in the 2022 and 2024 election campaigns was to kick away the chance the party had to show that it means what it says in declaring its faithfulness to “colorblindness.”

What conservatives don’t want to acknowledge is how much damage they have already done by taking control of the court through the raw exercise of political power. Beginning with the blockade of Merrick Garland’s nomination in 2016 and culminating in the rushed confirmation of Amy Coney Barrett just days before the 2020 election, Republicans have sent the message that not the law, not deliberation, but partisan manipulation is at the heart of the court’s decision-making.

A showdown seems inevitable. But Senate Republicans might have bought some time and eased the antagonism had they treated Jackson’s nomination as something other than an opportunity for mean-spirited political messaging.

March 27

washington post logoWashington Post, Analysis: Judicial confirmation process could get even more toxic, Lindsey Graham says, Paul Kane, March 27, 2022 (print ed.). Sen. Lindsey O. Graham (R-S.C.) looked briefly into the future and saw a calamitous confirmation process for Supreme Court justices and other federal judge nominees: a near total blockade.

With Republicans needing a simple one-seat gain in November to retake control of the Senate, Graham pointed to the Supreme Court fight in 2020 when not a single Democrat voted to confirm Justice Amy Coney Barrett as an ominous precedent for how a GOP majority would behave toward President Biden’s picks.

“Is that the new norm? If that’s going to be the new norm,” Graham asked, “what do you do when one party has the Senate and the other party has the White House? How do you ever get anybody confirmed?”

republican elephant logoGraham is nowhere near as relevant now as in previous years, when he oversaw Barrett’s confirmation as chairman of the Judiciary Committee and played a key role in turning the tide at Justice Brett M. Kavanaugh’s hearing in 2018 when he passionately defended the nominee and accused Democrats of “the most unethical sham since I’ve been in politics.”

But senior Republicans and Democrats agree with Graham that a judicial confirmation process that is already painfully partisan — as demonstrated by four long days of hearings over Judge Ketanji Brown Jackson’s nomination to the Supreme Court — could turn even more toxic.

Race hovered over Ketanji Brown Jackson’s confirmation hearing

Democrats recall the last two years of Barack Obama’s presidency when Sen. Mitch McConnell (R-Ky.), then majority leader, set up barricades around the top judiciary posts. Just two nominees to the circuit courts of appeal were confirmed in 2015 and 2016, the lowest two-year tally since the 19th century. When Justice Antonin Scalia died in February 2016, McConnell refused to even meet with Merrick Garland, Obama’s nominee, let alone give him a hearing or a vote.

Democrats are bracing for worse treatment next year if Republicans take charge.

“I can’t remember anything quite like it, with a Democratic president and a Senate in different hands. I don’t know where we’d go,” Sen. Richard J. Durbin (D-Ill.), chairman of the Judiciary Committee, said after Jackson’s hearings concluded Thursday.

March 26

U.S. Supreme Court Scandal

 United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r). (Safe Image)

United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r).

 washington post logoWashington Post, Analysis: Ginni Thomas’s texts reveal fears, motivation behind efforts to overturn election, Dan Balz, right, March 26, 2022. The dan balz column portraitmessages offer ample evidence that the drive to keep Trump in office went to the highest levels of the government amid fears of a Democratic administration.

“Release the Kraken and save us from the left taking America down.”

What more does anyone need to know about the many text messages sent by Virginia “Ginni” Thomas to then-White House Chief of Staff Mark Meadows in the weeks after the 2020 election? A dozen words (above) sum up everything.

That the spouse of Supreme Court Justice Clarence Thomas was imploring the president’s highest-ranking adviser to do all he could to overturn the 2020 election may seem beyond extraordinary. It is, but it is more than that.

The messages once again show how former president Donald Trump’s conspiracies, lies and obsessions infected the Republican Party (and in many quarters still do), from its rank-and-file base to some of its most establishment figures. The more that is known about the events between Election Day 2020 and the Jan. 6, 2021, attack on the U.S. Capitol, the clearer it is just how extensive the efforts to overturn the election were and how high up they went.

washington post logoWashington Post, Ethics experts see Ginni Thomas’s texts as a problem for the Supreme Court, Robert Barnes and Ann E. Marimow, March 26, 2022 (print ed.). The conservative media stars at the heart of the Ginni Thomas texts.

Justice Clarence Thomas checked out of the hospital Friday after a week-long stay and walked into the latest ethics controversy about the intersection of his Supreme Court duties and his wife’s political activism.

Democratic lawmakers and many legal ethicists said they were shocked by revelations that Virginia Thomas, known as Ginni, repeatedly pressed White House Chief of Staff Mark Meadows to pursue efforts to overturn the 2020 presidential election, at a time when President Donald Trump was saying he would challenge the results at the Supreme Court.

The Washington Post and CBS News jointly reported Thursday that in 29 text messages exchanged between Ginni Thomas and Meadows, she advocated for certain legal strategies, urged him to continue to dispute the election results and asserted that Joe Biden did not win the election.

“Help This Great President stand firm, Mark!!!” Ginni Thomas texted Meadows in November, days after the election. “… You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”

Virginia Thomas urged White House chief to pursue unrelenting efforts to overturn the 2020 election, texts show

Democrats on Capitol Hill said they were outraged by the messages and Justice Thomas’s participation in some of the election-related cases that reached the high court, none of which were decided in Trump’s favor. One of the strongest reactions came from Sen. Ron Wyden (D-Ore.).

“Justice Thomas’ conduct on the Supreme Court looks increasingly corrupt,” Wyden said in a news release. “Judges are obligated to recuse themselves when their participation in a case would create even the appearance of a conflict of interest. A person with an ounce of common sense could see that bar is met here.”

washington post logoWashington Post, Thomas’s wife is a political extremist. This is a problem for the court, Editorial Board, March 26, 2022 (print ed.). It is no revelation that conservative activist Virginia Thomas, Supreme Court Justice Clarence Thomas’s wife, is a political extremist. But The Post’s Bob Woodward and CBS News’s Robert Costa showed just how close she was to President Donald Trump’s plotting to overturn the 2020 presidential election, which culminated in the Jan. 6, 2021, Capitol ransacking. The disturbing revelations only deepen the threat her entanglements pose to the court’s legitimacy.
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Mr. Woodward and Mr. Costa revealed Thursday 29 text messages between Ms. Thomas and Trump White House Chief of Staff Mark Meadows, as Mr. Trump sought the Supreme Court’s help to reverse the election. “We are living through what feels like the end of America,” she wrote four days after Jan. 6 — but not in reference to the rioters who called for then-Vice President Mike Pence’s blood. “Most of us are disgusted with the VP and are in listening mode to see where to fight with our teams,” she said, indicating that she wished Mr. Pence had illegally overturned the election results.

Ms. Thomas flooded Mr. Meadows’s phone with bizarre far-right conspiracy theories about ballot watermarks, secret military operations and the possibility of locking up Democrats and journalists on barges off Guantánamo Bay.

The House committee investigating Jan. 6 obtained the texts from Mr. Meadows before he stopped cooperating with the panel. The 29 messages appear to be just a portion of the communications between the two, meaning there might be more that the panel will seek to force Mr. Meadows to turn over. The texts also suggest Ms. Thomas was in touch with others in the Trump White House, communications the committee will likely want to see.

This raises questions about Justice Thomas’s refusal to recuse himself from cases involving Jan. 6. In one text, Ms. Thomas talked about having a conversation with her “best friend,” apparently about the election fight. Did Ms. Thomas influence her husband’s thinking? Did Justice Thomas decline to recuse because he did not want to reveal the depth of his wife’s involvement? Justice Thomas was the only member of the court who voted against turning over White House communications to the committee.

For years, Justice Thomas’s critics have argued he should recuse himself more often from cases to which his wife has connections. Also that Congress should impose strict ethics rules on Supreme Court justices. This is harder than it sounds. Unlike in lower courts, no one can sit in for justices who have recused themselves. Also, many outstanding potential justices have professionally active spouses; they should not feel as though they must ask their partners to quit in order to serve.

Unfortunately, Ms. Thomas has abused the good faith others have offered her husband, pushing the limits of the ethical gray areas these considerations create. Justice Thomas must recuse himself whenever his wife has a financial stake in a case. The New Yorker’s Jane Mayer reported that Ms. Thomas took more than $200,000 from right-wing activist Frank Gaffney’s Center for Security Policy as Mr. Gaffney asked the court to uphold Mr. Trump’s Muslim ban, which Justice Thomas voted to do. Justice Thomas must also recuse himself from cases that could substantially affect his wife in other ways. That includes litigation regarding the Jan. 6 committee, which is examining Ms. Thomas’s communications.

Americans should expect more. The best way for the court to avoid further erosion of public faith — and congressional intervention — is for the justices to set a higher example.

washington post logoWashington Post, Investigation: Virginia Thomas urged White House chief to pursue unrelenting efforts to overturn the 2020 election, texts show, Bob Woodward and Robert Costa, March 25, 2022 (print ed.). In messages to chief of staff Mark Meadows in the weeks after Election Day, the wife of Supreme Court Justice Clarence Thomas called Joe Biden’s victory “the greatest Heist of our History” and told him that President Donald Trump should not concede.

Virginia Thomas, a conservative activist married to Supreme Court Justice Clarence Thomas, repeatedly pressed White House Chief of Staff Mark Meadows to pursue unrelenting efforts to overturn the 2020 presidential election in a series of urgent text exchanges in the critical weeks after the vote, according to copies of the messages obtained by The Washington Post and CBS News.

The messages – 29 in all – reveal an extraordinary pipeline between Virginia Thomas, who goes by Ginni, and President Donald Trump’s top aide during a period when Trump and his allies were vowing to go to the Supreme Court in an effort to negate the election results.

On Nov. 10, after news organizations had projected Joe Biden the winner based on state vote totals, Thomas wrote to Meadows: “Help This Great President stand firm, Mark!!!...You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”

When Meadows wrote to Thomas on Nov. 24, the White House chief of staff invoked God to describe the effort to overturn the election. “This is a fight of good versus evil,” Meadows wrote. “Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues. I have staked my career on it. Well at least my time in DC on it.”

Thomas replied: “Thank you!! Needed that! This plus a conversation with my best friend just now… I will try to keep holding on. America is worth it!”

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More On Supreme Court Nominee

 

Supreme Court Justice nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee on Tuesday. (Anna Moneymaker/Getty Images)

Supreme Court Justice nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee on Tuesday.

washington post logoWashington Post, Opinion: This is not advise and consent. This is smear and degrade, Ruth Marcus, right, March 26, 2022. The pretense is gone — the ruth marcus twitter Custompretense that Supreme Court confirmation hearings are about determining nominees’ fitness for office, gleaning a sense of their legal acumen and approach to judging, and gathering the information necessary to exercise a solemn senatorial power.

No longer. Advise and consent has yielded to smear and degrade. The goal is not to illuminate but to tarnish: If a nominee can’t be stopped, at least the other side can inflict some damage on her and the opposition party.

The confirmation hearings just concluded for Supreme Court nominee Ketanji Brown Jackson represented the culmination of a sad trajectory. Nominations and hearings have always had a political component; after all, the Framers assigned the confirmation power to a political branch.

But never has a confirmation hearing been less about law and more about partisan point-scoring and presidential campaign-launching.

The 1987 confirmation hearings for Robert H. Bork kicked off the modern judicial wars, and Republicans still seethe over Bork as Democrats’ original sin. “We started down this road of character assassination in the 1980s with Judge Bork’s hearings and senators have been engaged in disgusting theatrics ever since,” said Sen. Ben Sasse (R-Neb.).

I was there, and what actually happened was, to borrow Bork’s famous description of why he wanted to be a justice, an “intellectual feast” — especially in comparison with this past week’s food fight. He was defeated by a vote of 58 to 42, including six Republican senators opposed. (Two Democrats voted to confirm him.)

That wasn’t because Democrats dragged him “into the gutter,” as Sen. Ted Cruz (R-Tex.) complained. Bork defeated Bork all by himself, thanks to his earlier, incendiary writings and then his testimony before the committee. His expressed views were so extreme and so far outside the legal mainstream that his confirmation failed by the largest margin in history.

“His view of the law is at sharp variance with more than a century of Supreme Court decisions which have applied equal protection to women, aliens, illegitimates, indigents and others,” said Sen. Arlen Specter (R-Pa.), announcing his vote.

Contrast this with the case, such as it is, against Jackson. There were interludes of substance involving her judicial philosophy and methodology for deciding cases, her understanding of the substantive due process cases that led to rulings supporting abortion rights and same-sex marriage, even a case or two on which she had ruled.

But with minds made up, substantive probing mostly gave way to posturing.

“On a scale of 1 to 10, how faithful would you say you are in terms of religion?” asked Sen. Lindsey O. Graham (R-S.C.)

“Can you provide a definition for the word ‘woman’?” asked Sen. Marsha Blackburn (R-Tenn.) And, “do you believe child predators are misunderstood?” Quoting from Jackson’s college thesis, Blackburn asked, “What personal hidden agendas do you harbor or do you think other judges harbor?”
 

Supreme Court nominee Ketanji Brown Jackson tears up briefly and for the only time during her three days of confirmation testimony as U.S. Sen. Cory Booker (D-NJ) consoles her for the vicious slurs and innuendoes that Republicans on the Senate Judiciary Committee launched at her. Shown below are her parents as they observed the highs and lows (Photo via the Associated Press).

Supreme Court nominee Ketanji Brown Jackson tears up briefly and for the only time during her three days of confirmation testimony as U.S. Sen. Cory Booker (D-NJ) consoles her for the vicious slurs laced with sexual and racial innuendoes that Republicans on the Senate Judiciary Committee launched at her, most notably by Ted Cruz (TX), Josh Hawley (MO), Marsha Blackburn (TN)  and Tom Cotton (Photo via the Associated Press). Shown below are her parents as they observed the highs and lows.

washington post logoWashington Post, Opinion: Voters, remember your role in Jackson's deserved nomination, Colbert I. King, right, March 26, 2022 (print ed.). The lesson of colbert king twitterJudge Ketanji Brown Jackson’s confirmation hearings is as old as the republic itself, to wit: Elections matter.

Had Democrats Raphael G. Warnock and Jon Ossoff not won both Georgia seats up for election in January 2021, their party would not have recaptured control of the Senate. Without those victories, there’s every reason to believe that President Biden’s Supreme Court nominee would now be languishing in a GOP-dominated Judiciary Committee, much as President Barack Obama’s 2016 nominee, Merrick Garland, was denied a confirmation hearing or vote by Senate Majority Leader Mitch McConnell (R-Ky.).

That committee Republicans Lindsey O. Graham (S.C.), Ted Cruz (Tex.) and Josh Hawley (Mo.) are reduced to ranting, raving and sliming Jackson from the sidelines, as gavel-wielding Chairman Richard J. Durbin (D-Ill.) steers her nomination toward an early-April committee vote, is testament to the cleansing power of the ballot box.

Fair and just elections, however, are no shields against uncouth conduct. Republicans’ promise of a “respectful” confirmation process for Jackson proved worthless, a disappointment to those who might have taken McConnell and his allies at their word. I did not. Graham and Cruz have been true to form. Nasty and disrespectful: yelling, interrupting, maligning — that’s par-for-the-course behavior when those two spotlight-seeking demagogues enter the scene.

Cruz and Graham, joined by Hawley, tried to outdo each other in hectoring Jackson to score points with a right-wing political base that is receptive to any thought, word or deed that denigrates people unlike themselves. Meanwhile, Jackson, armed with integrity, eminent qualifications, respect of her judicial peers and a rock-steady temperament, stood well above those reveling in the disgraceful performance of her second-rate attackers.

Expect more temper tantrums when the committee meets to vote to send her nomination to the full Senate. The Senate floor debate will host more of the same with a new cast of Republicans eager to pummel Jackson’s reputation with false or exaggerated claims of her weakness on crime and sympathies for child molesters and Guantánamo Bay detainees.

She deserves confirmation to a seat on the Supreme Court. Not only will she be the first Black woman to sit on the highest court in the land — a historic and long-overdue achievement — but also a sterling choice to succeed retiring Justice Stephen G. Breyer.

And when the next election rolls around, remember how important your vote was in giving her that opportunity.

 Recent Headlines

March 25

washington post logoWashington Post, Manchin says he supports Jackson for Supreme Court, Felicia Sonmez and Mike DeBonis, March 25, 2022. Sen. Joe Manchin III (D-W.Va.) said Friday that he intends to support President Biden’s nomination of Judge Ketanji Brown Jackson to the Supreme Court, in a step toward ensuring Jackson’s confirmation.

joe manchin oManchin, right, who has been a roadblock to some of Biden’s nominees and agenda items, announced his backing of Jackson in a statement one day after the Senate Judiciary Committee concluded its confirmation hearings.

“I am confident Judge Jackson is supremely qualified and has the disposition necessary to serve as our nation’s next Supreme Court Justice,” Manchin said.

Race hovered over Ketanji Brown Jackson’s confirmation hearing

Manchin cited Jackson’s “exemplary” career and record and said that her various roles in the judicial system have provided her with “a unique perspective that will serve her well on our nation’s highest court.”

He also noted that Jackson and her family frequently visit Manchin’s home state of West Virginia.

“During our meeting, she was warm and gracious,” Manchin said. “On top of her impressive resume, she has the temperament to make an exceptional jurist. Notably, Judge Jackson and her family spend a great deal of time in West Virginia and her deep love of our state and commitment to public service were abundantly clear. I am confident Judge Jackson is supremely qualified and has the disposition necessary to serve as our nation’s next Supreme Court Justice.”

After a combined 36 hours of hearings, Jackson appeared to remain on track for confirmation early next month, according to interviews with key senators Thursday.

Jackson’s confirmation will not be overwhelmingly bipartisan, and the top Senate Republican vote-counter, Minority Whip John Thune (R-S.D.), predicted no more than three GOP votes in her favor. But leaders of both parties agreed the long and often tense interrogation did not alter the fundamental dynamics around the nomination.

Senators: Jackson appears ‘on track’ for confirmation to Supreme Court

washington post logoWashington Post, Justice Thomas released from hospital after week-long stay, Robert Barnes, March 25, 2022. Supreme Court Justice Clarence Thomas was released from the hospital after a nearly week-long stay to treat an infection, the court’s press office said Friday.

Thomas, 73, was admitted to Sibley Memorial Hospital in Washington Friday night, complaining of flu-like symptoms. Sunday night, the court said in a new release that he had been diagnosed with an infection and was being treated with intravenous antibiotics.

A court spokeswoman said that Thomas had been vaccinated and boosted against the coronavirus, and that his illness was not covid-related.

Thomas is the court’s longest-serving member, chosen in 1991 by Republican President George H.W. Bush. He is also its second oldest after 83-year-old Justice Stephen G. Breyer, who plans to retire at the end of the term.

Justices decide for themselves how much health information they will release to the public, and there had been no additional guidance since then until Friday’s brief notice from Supreme Court Public Information Officer Patricia McCabe. “Justice Thomas was discharged from the hospital earlier today,” she said in a release emailed to reporters.

washington post logoWashington Post, Wesley Hawkins, talk of the Jackson hearings, describes life after pornography sentence, Aaron C. Davis, March 25, 2022. Wesley Hawkins heard a few weeks ago that a Black woman had been nominated to the Supreme Court and wondered why her name, Ketanji Brown Jackson, sounded so familiar. Then, he saw her picture and knew. Jackson was the judge who had sentenced him for possession of child pornography nine years earlier, when he was a teenager.

Hawkins, now 27, gave the matter little additional thought. But in recent days, unbeknown to him, Hawkins’s 2013 sentencing became central to the partisan battle over confirming Jackson to the high court.

Looking for full-time employment, Hawkins this week repeatedly crisscrossed a neighborhood in view of the U.S. Capitol in his hunt — unaware that inside, members of Congress were talking at length about him and his case in nationally televised hearings.

In an interview Thursday at a relative’s home in the District, Hawkins was in disbelief. “My case?” he asked a Washington Post reporter. “They’re talking about my case?” Soon, he was watching YouTube clips, his mouth agape.

After his release, Hawkins said he worked for a few years in retail before being laid off. He has since gotten by on temporary jobs. He also has completed a number of training programs, including certification as an IT worker, he said.

Senate Republicans mentioned Hawkins’s name more than 30 times over three days to try to paint Jackson as dangerously soft on crime during her nearly 10 years on the federal bench. Republicans dwelled on how Jackson, 51, repeatedly handed down sentences below federal guidelines for child pornography convictions, even though that is the norm in seven in 10 cases nationally, according to statistics from the U.S. Sentencing Commission.
Republican senators question Judge Jackson about sentencing history

Republicans argued that in the Hawkins case, they had found a particularly egregious example. Jackson imposed a sentence of three months for Hawkins’s plea of guilty to a felony offense. “You can get more than that almost for a speeding ticket,” said Sen. Ted Cruz. (R-Tex.)

Taking in the sparring in the YouTube cuts, Hawkins’s wide frame hunched forward and he balled up his hands in front of his white T-shirt. Over two hours, he appeared to cycle through shock, anger, frustration and finally, calm.

The Hawkins case was one of the first to come before Jackson after she was confirmed by the Senate as a federal-district court judge in Washington in 2013.

Hawkins was found with 17 videos and 16 images, several depicting prepubescent boys engaged in sex acts. Hawkins cooperated with police, admitted possession and entered a pre-indictment guilty plea. He also wrote a letter taking responsibility and expressing remorse.

Federal guidelines called for a sentence of eight to 10 years. Prosecutors recommended two years, given Hawkins’s age and lack of a criminal record. A U.S. probation officer recommended a year and a half. Hawkins’s defense attorney asked for just one day in jail and five years of supervised release.

Jackson said in court that Hawkins had committed “a very serious and, in many ways, heinous crime” but noted that Hawkins had not produced any of the videos or taken any of the pictures. She also said she had to weigh Hawkins’s age in relation to the age of the children in many of the images. He was not much older than they, she said. “This seems to be a situation in which you were fascinated by sexual images involving what were essentially your peers,” Jackson said. “And, as the psychological report concluded, there’s no reason to believe that you are a pedophile or that you pose any risk to children.”

March 24

Overturning 2020 U.S. Election, Russian Influences Claims

 

 United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r). (Safe Image)

United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r).

washington post logoWashington Post, Investigation: Virginia Thomas urged White House chief to pursue unrelenting efforts to overturn the 2020 election, texts show, Bob Woodward and Robert Costa, March 24, 2022. In messages to chief of staff Mark Meadows in the weeks after Election Day, the wife of Supreme Court Justice Clarence Thomas called Joe Biden’s victory “the greatest Heist of our History” and told him that President Donald Trump should not concede.

Virginia Thomas, a conservative activist married to Supreme Court Justice Clarence Thomas, repeatedly pressed White House Chief of Staff Mark Meadows to pursue unrelenting efforts to overturn the 2020 presidential election in a series of urgent text exchanges in the critical weeks after the vote, according to copies of the messages obtained by The Washington Post and CBS News.

The messages – 29 in all – reveal an extraordinary pipeline between Virginia Thomas, who goes by Ginni, and President Donald Trump’s top aide during a period when Trump and his allies were vowing to go to the Supreme Court in an effort to negate the election results.

On Nov. 10, after news organizations had projected Joe Biden the winner based on state vote totals, Thomas wrote to Meadows: “Help This Great President stand firm, Mark!!!...You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”

When Meadows wrote to Thomas on Nov. 24, the White House chief of staff invoked God to describe the effort to overturn the election. “This is a fight of good versus evil,” Meadows wrote. “Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues. I have staked my career on it. Well at least my time in DC on it.”

Thomas replied: “Thank you!! Needed that! This plus a conversation with my best friend just now… I will try to keep holding on. America is worth it!”

It is unclear to whom Thomas was referring.

The messages, which do not directly reference Justice Thomas or the Supreme Court, show for the first time how Ginni Thomas used her access to Trump’s inner circle to promote and seek to guide the president’s strategy to overturn the election results – and how receptive and grateful Meadows said he was to receive her advice. Among Thomas’s stated goals in the messages was for lawyer Sidney Powell, who promoted incendiary and unsupported claims about the election, to be “the lead and the face” of Trump’s legal team.

washington post logoWashington Post, The Archives: Justice often runs into conflicts of interest with wife’s activism, critics say, Michael Kranish, Jan. 31, 2022. Ginni Thomas’s name stood out among the signatories of a December letter from conservative leaders, which blasted the work of the House committee investigating the Jan. 6 insurrection as “overtly partisan political persecution.”

One month later, her husband, Supreme Court Justice Clarence Thomas, took part in a case crucial to the same committee’s work: former president Donald Trump’s request to block the committee from getting White House records that were ordered released by President Biden and two lower courts.

Thomas was the only justice to say he would grant Trump’s request.

That vote has reignited fury among Clarence Thomas’s critics, who say it illustrates a gaping hole in the court’s rules: Justices essentially decide for themselves whether they have a conflict of interest, and Thomas has rarely made such a choice in his three decades on the court.

“I absolutely do believe that Clarence Thomas should have recused from the Jan. 6 case,” said Gabe Roth, executive director of Fix the Court, a nonpartisan advocacy group, who called the Supreme Court “the most powerful, least accountable, institution in Washington.”

While the Supreme Court is supposed to operate under regulations guiding all federal judges, including a requirement that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” there’s no procedure to enforce that rule. Each justice can decide whether to recuse, and there is no way to appeal a Supreme Court member’s failure to do so.

Unlike in lower courts, there is no other judge that can step in, and thus a recusal by one justice would mean considering the case with only eight justices, increasing the chance it could not be resolved.

Thomas, 73, has recused himself 32 times in the last 28 years, mostly on petitions never granted by the court, according to research by Roth’s group. (He recused himself more often in his first two years on the court, due partly to conflicts involving his previous employment.) He has recused himself in a family matter, sitting out a case involving a college that his son attended. But Thomas has never bowed out of a case due to alleged conflicts with his wife’s activism, according to Roth.

Ginni Thomas has long been one of the nation’s most outspoken conservatives. During her husband’s time on the Supreme Court, she has run organizations designed to activate right-wing networks, worked for Republicans in Congress, harshly criticized Democrats who she said were trying to make the country “ungovernable,” and handed out awards to those who agree with her agenda. Ginni Thomas also worked closely with the Trump administration and met with the president, and has come under fire over messages praising Jan. 6 crowds before the attack on the Capitol. In a number of instances, her activism has overlapped with cases that have been decided by Clarence Thomas.
Supreme Court allows release of Trump's Jan. 6 records
On Jan. 19, the Supreme Court rejected former president Donald Trump’s request to withhold records from the House committee investigating the Capitol attack. (Reuters)

Thomas’s vote in the Jan. 6 case is such a striking conflict of interest, critics say, that some hope it sparks further support for long-sputtering efforts to toughen rules governing the justices — an effort bolstered by a White House commission last month that noted the inherent problem with court’s recusals.

 

Democratic 2016 Presidential Nominee Hillary Clinton squared off against GOP nominee Donald Trump in their third debate that fall as Clinton accused Trump of being a Russian Democratic 2016 Presidential Nominee Hillary Clinton squared off against GOP nominee Donald Trump in their third debate that fall as Clinton accused Trump of being a Russian "puppet" and Trump responded by shouting "You're the puppet! You're the puppet!"

washington post logoWashington Post, Analysis: Trump’s lawsuit against Clinton and 47 others is a predictable mess, Aaron Blake, March 24, 2022. From the very beginning of Donald Trump’s lawsuit against Hillary Clinton and a smattering of nearly 50 others, it becomes abundantly clear what this is about — and it’s not about winning a legal judgment.

“In the run-up to the 2016 Presidential Election, Hillary Clinton and her cohorts orchestrated an unthinkable plot — one that shocks the conscience and is an affront to this nation’s democracy,” the lawsuit, filed March 24, begins. It soon adds that the alleged plot was “so outrageous, subversive and incendiary that even the events of Watergate pale in comparison.”

In other words: This is a press release.

What the lawsuit lacks in subtlety, though, it more than makes up for in false claims, errors and dubious inferences.

The lawsuit contains a veritable smorgasbord of debunked and conspiratorial assertions about just how the Russia investigation came about. It’s clearly an effort to play into the emerging theories about what special counsel John Durham might be pursuing — i.e., that the Russia probe was not a product of FBI malfeasance, as Trump has long claimed, but rather that it’s something the FBI was duped into pursuing by nefarious Democrats.

But Trump’s legal team can’t shoot straight.

Before it even gets to the opening sentiments quoted above, the lawsuit stumbles through multiple typos. It announces it is suing 10 anonymous people whose names might be “fictious.” (The word is misspelled three more times before the 108-page lawsuit is finished.) The lawsuit also sues “Phillipe Reines” rather than Clinton adviser Philippe Reines. It is at least the fourth lawsuit filed by Trump and his allies which features a misspelling on the very first page.

(In fairness, I have misspelled Reines’s name before; I am not, however, suing him in a court of law.)

By Page 4, the lawsuit asserts that, upon learning there was no back-channel between the Trump campaign and a Russian bank, “the Defendants resorted to truly subversive measures — hacking servers at Trump Tower, Trump’s private apartment, and, most alarmingly, the White House.”

 

Supreme Court Confirmation Hearing

 

Supreme Court Justice nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee on Tuesday. (Anna Moneymaker/Getty Images)

Supreme Court Justice nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee on Tuesday. 

washington post logoWashington Post, Hearings conclude as witnesses praise Jackson’s ‘impeccable’ credentials, John Wagner, Amy B Wang, Mariana Alfaro, Eugene Scott and Felicia Sonmez, March 24, 2022. American Bar Association representatives said they said they found no evidence to support repeated criticism from Republican senators that Ketanji Brown Jackson was lenient in her sentencing as a federal trial court judge.

The fourth and final day of confirmation hearings for Supreme Court nominee Ketanji Brown Jackson concluded Thursday after the Senate Judiciary Committee heard from an array of outside witnesses, including representatives of the American Bar Association, who said President Biden’s nominee would bring “impeccable” credentials to the job.

Witnesses invited by Democrats highlighted Jackson’s temperament and the historic nature of her nomination. She would be the first Black woman on the court in its 233-year history. Those invited by Republicans questioned Jackson’s judicial philosophy and whether she would try to use her position to remake the court system.

The ABA representatives said they said they found no evidence to support repeated criticism from Republican senators that Jackson was lenient in her sentencing as a federal trial court judge.

Here’s what to know

  • The committee is expected to vote April 4 on the nomination of Jackson, who currently sits on the U.S. Court of Appeals for the District of Columbia Circuit.
  • If Democrats stick together, Jackson could be confirmed by the full Senate without any Republican support in the evenly divided chamber, with Vice President Harris casting a deciding vote. Former senator Doug Jones (D-Ala.) said Thursday that he is hopeful Jackson’s nomination will attract some GOP support.
  • Jackson, 51, has been nominated by Biden to replace Justice Stephen G. Breyer, who is retiring. Breyer, 83, the high court’s oldest justice, has been a reliable liberal vote.

Key updates

  • The child pornography case at the center of Jackson’s hearing
  • Alabama attorney general baselessly claims Jackson wants to reform the criminal justice system
  • ABA leaders praise Jackson as ‘brilliant,’ ‘first rate,’ ‘smart judge without any biases’

washington post logoWashington Post, Analysis: Ketanji Brown Jackson’s striking non-endorsement of ‘super precedents,’ Aaron Blake, March 24, 2022. When Judge Ketanji Brown Jackson’s confirmation hearings haven’t devolved into tense battles over her rather unremarkable sentencing decisions in child pornography cases, they’ve actually included some pretty interesting exchanges on her judicial philosophy.

And subtly high on that list: How much she undercut the left’s effort to establish certain cases as “super precedents.”

If that phrase sounds familiar, it’s because it has come up in nearly every Supreme Court confirmation hearing in the 21st century. Generally speaking, senators who support abortion rights would like the nominees to say they regard Roe v. Wade and the cases affirming it to be “super precedents” — or precedents the would-be justices would find extraordinarily difficult to overturn.

But Jackson stopped well short of endorsing that idea — and even seemed to argue quite the opposite: that precedents aren’t a matter of degree.

Sen. Dianne Feinstein (D-Calif.) on Tuesday asked Jackson (as she has other nominees) whether she regarded these cases as “super precedents.” Jackson did not say yes.

“Well, Senator, all Supreme Court cases are precedential; they’re binding,” Jackson said, while noting that Roe v. Wade had been repeatedly affirmed in cases like Planned Parenthood v. Casey.

By Wednesday, Jackson got a similar question from the right side of the aisle. Sen. John Cornyn (R-Tex.) broached the “super precedent” concept and asked whether a case like D.C. v. Heller — a landmark case expanding gun rights — is “equivalent in terms of its precedents to Roe versus Wade.”

Jackson responded: “I’m not aware of any ranking or grading of precedents; all precedents of the Supreme Court are entitled to respect on an equal basis.”

And for once, a GOP senator liked what he had heard from Jackson. “I agree with you,” Cornyn said. “That’s why it kind of blows my mind when people talk about ‘super precedents,’ as if somehow one precedent was different, in terms of its significance or priority under the Constitution, than others.”

washington post logoWashington Post, Opinion: The Jackson hearings show a GOP in decay, Michael Gerson, March 24, 2022. If the Senate’s current exercise of Supreme Court advice and consent needed a title, it might be “The puzzlement of Judge Jackson.”

When Judge Ketanji Brown Jackson has fielded a question about the influence of critical race theory on children or has been asked, for the record, to define a woman, she has often reacted with a puzzled pause before offering a measured response. What must she be thinking? Should she advocate for sleeping infants rather than woke ones (a populist cause if ever there was one)? How current are Republican senators on their sex ed? Should she start with the birds and the bees?

Jackson’s performance during her confirmation hearing this week has been impressive for its restraint and general grace. But the deliberations of the Senate Judiciary Committee may be remembered for her understandable confusion about topics that make complete sense only among movement conservatives. On the evidence of Jackson’s most tenacious questioners, this is now what it takes to win prominence in the modern GOP: a quiver full of culture-war attacks and a stout willingness to look foolish in public.

It is sad and sobering to have seen the decline of the Supreme Court nomination process firsthand. I worked in the Senate in the 1980s and 1990s. When I wrote the floor statement of my conservative Republican boss Sen. Dan Coats supporting Ruth Bader Ginsburg’s nomination, we were applying an older tradition of confirmation that looked mainly at disqualifications. Did the nominee lack integrity, impartiality or a judicial temperament? Had he or she violated any ethical or professional standards? The power of appointing Supreme Court justices was generally thought to reside in the executive branch. The president was given wide latitude. The Senate acted as a filter of unfitness.

In the post-Robert Bork era — after a lot of mutual recrimination and a period of adjustment and (sometimes) inconsistency — this undoubtedly changed. The focus of conservatives turned to judicial philosophy, particularly the constraints of originalism and textualism. This was the ascent of ideology, in which Republicans grew very comfortable criticizing judicial overreach. Everyone knew the real game was Roe v. Wade. But the standard of public judgment was provided by the Federalist Society. (Rather slyly, Jackson defused this debate during her hearing. “I am focusing on original public meaning because I’m constrained to interpret the text,” she said. This “adherence to the text is a constraint on my authority.”)

What we have seen among Republican senators this time around — with a few notable exceptions — is a departure from what preceded it. And it says far more about the state of the GOP than it does about the views of the nominee.

Jackson’s main Republican questioners are not focused on qualifications, temperament or even judicial theory. Their clear objective has been to trip up the nominee by asking about the latest Republican culture-war debates. It is surprising to me how little Republicans have emphasized judicial theory. For now, the culture war is all.

This is not just change; it is decay. Republicans have gone from arguing about the intent of the Founders to reproducing the night’s lineup of questions from Tucker Carlson.

This has, no doubt, been favorable to the judge’s confirmation. In the comparison of intellectual seriousness, Jackson is the clear winner. She is a responsible judge of moderate temperament, as well as an admirable human being, who will often do liberal things on the high court. What else could Republicans expect in this circumstance?

The GOP performance is particularly disturbing because it is not the direct result of incitement by Donald Trump. The former president does not lack for provocation. As a district court judge, Jackson joined in decisions that limited executive privilege. “Stated simply,” she wrote in November of 2019, “the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.” “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

No one has issued a more direct assault on the philosophic basis of Trumpism — that one former president should effectively be king. But Trump has said next to nothing about the Jackson nomination. Instead, he talks endlessly about the illegitimacy of the 2020 election. So the approach among the senators is moving on its own power and momentum within the Republican Party.

Opinion: Republicans promised ‘no circus’ at Jackson’s hearing. Then the clown car rolled in.

The MAGA world now has animating manias beyond Trump’s immediate priorities. The circus in the Senate is how ambitious elected Republicans understand the avenue to influence — with or without Trump’s direction. And they are probably reading the base of the GOP correctly. The problem, as usual, is deeper and greater than Trump. The shallowness and cynicism of the nomination process may well be previewing our political future.

ted cruz ketanji brown jackson hearing baby book 2022The Nation, Commentary: Ketanji Brown Jackson’s Long Pause Explained Racism and Sexism in America, Elie Mystal, March 24, 2022. In that pregnant moment, everybody who was watching got to see how power and privilege work.

For me, it was the pause. I knew that the confirmation hearings for Ketanji Brown Jackson would produce a lot of insults and smears from Republicans trying to be racist enough for Fox News viewers to get the message but not so racist that The New York Times would have to acknowledge it. Jackson surely knew it too. And despite over 20 hours of questioning over two days, during which Republicans yelled at her and grandstanded and repeatedly insinuated that she was a terrorist and child-sex-trafficker sympathizer in front of her daughters and parents, she never once lost her cool.

But she did take one really long pause. During Tuesday’s opening round of questions, Senator Ted Cruz went into full racist smear mode. Cruz is a former law school classmate and Harvard Law Review colleague of Jackson’s, but as for many, many white boys from that school, the comity and collegiality of a shared alma mater only seems to extend to fellow whites. Jackson is a Black woman, and Cruz’s teeth were out. He was trying to scare white voters by implying that Jackson was a black radical who believes in “critical race theory” and would use her position on the court to put dangerous thoughts in the minds of white children.

Only it was Ted Cruz doing this, so his teeth were crooked, dull, and almost unintentionally comical. Cruz came prepared with posters, like an office manager who never learned how to use PowerPoint. The posters were blown-up pages from a children’s book, Antiracist Baby, written by Dr. Ibram X. Kendi, so the images were of a blobbishly drawn, racially indistinct baby in a diaper playing with blocks. Remember, this is in the middle of a Senate confirmation hearing for a lifetime appointment to the highest court in the land, and Cruz was up there with his picture-book report and arts and crafts. Cruz pointed to his poster and, in his most wolfishly serious voice, asked, “Do you agree…that babies are racist?”

Jackson started to answer. She said, “Senator.” And then she sighed. And then she paused. For a long time. As the silence filled the room, I felt like I could see Jackson make the same calculation nearly every Black person and ancestor has made at some point while living in the New World. It’s the calculation enslaved people made before trying to escape to freedom, or activists made before sitting down at the white lunch counter. But it’s also the calculation a woman makes before responding to the e-mail of the failson who was just promoted ahead of her, or the calculation I make when a white executive comments on my Twitter feed but not my published columns. It’s the calculation when black people try to decide: “Am I gonna risk it all for this?”

Jackson took a moment to decide if it was worth it to throw everything away—her chance, her good name, maybe even her whole career—just to tell Ted Cruz, a man she’s known for over 25 years, what she really thought of him.

She decided against it, of course. She eventually spoke: “I do not believe that any child should be made to feel as though they’re racist…” She then resumed her normal posture and didn’t repeat the sigh, or the pause, for the rest of the hearing.

Toni Morrison says “the very serious function of racism is distraction,” but Jackson knew it wasn’t worth being distracted by Cruz, or any of the small-minded and condescending white people arrayed against her on the Senate Judiciary Committee. She’s worked too hard and bested too many of the white man’s little traps to get tripped up near the finish line by senators who debase themselves and their offices for 30 seconds of attention on Tucker Carlson’s show. Jackson passed her test.

But it was hard to watch her be put through the crucible of white approval. The attacks used by Republicans against her weren’t about her qualifications: Everybody knows she’s more than qualified to be on the Supreme Court, and even most of the Republicans said so. The attacks weren’t about her personal behavior or ethics: Again, even Republicans remarked that she had lived a good life and there’s been no whiff of scandal, and no suggestion of sexual assault (which is not something you can say for all Supreme Court nominees).

Instead, Republicans simply pronounced her guilty by association with people and stereotypes of people they don’t think belong in America.

washington post logoWashington Post, Opinion: Cruz attacks Jackson over CRT — but sends his own daughters to learn it, Dana Milbank, right, March 24, 2022 (print ed.). Sen. dana milbank newestTed Cruz seldom overlooks a chance to be underhanded, and, sure enough, the Texas Republican led the effort to imbue this week’s Supreme Court confirmation hearings with the latest effort by the right to make White America fear Black America.

Cruz attempted to tie Ketanji Brown Jackson, the first Black woman nominated to the high court, to the supposed menace of “critical race theory” — because, he said, this theory is taught at the private school where she serves on the board (and where she sent her daughters).

“If you look at the Georgetown Day School’s curriculum, it is filled and overflowing with critical race theory,” Cruz alleged, holding up books he said the school has on reading lists, including “Stamped (for Kids): Racism, Antiracism and You,” by Ibram X. Kendi and Jason Reynolds. “It is an astonishing book,” charged Cruz, who had found it “offensive” that President Biden had promised to nominate a Black woman to the court. “On Page 33, it asks the question, ‘Can we send White people back to Europe?’ … Are you comfortable with these ideas being taught to children as young as 4?”

Georgetown Day School, in the nation’s capital, does indeed take a strong “anti-racism” approach. So does St. John’s School, the private school in Houston where, as the New Republic’s Timothy Noah noted, Cruz sends his daughters.

As the headmaster and chair of the board of trustees at St. John’s put it in 2020: “Black lives matter. … St. John’s, as an institution, must be anti-racist and eliminate racism of any type — including institutional racism. ”

To its credit, the school has vowed to continue to “ensure that diversity, equity and inclusion are foundational aspects of our educational program,” and to “incorporate cultural proficiency, diversity, global awareness, and inclusivity into all facets of the K-12 curricula.”

A St. John’s class called “Issues of Justice and Equity in the Twenty-First Century” is labeled a “Critical Race Training Course” by the right-wing Legal Insurrection Foundation.

Jezebel, Commentary: The Sordid History of Right-Wing Pedophilia Conspiracy Theories, Kylie Cheung, March 23, 2022. Republican attacks framing Judge Ketanji Brown Jackson as "soft" on child sex offenders are part of a greater conservative trend to disrupt social progress.

Ahead of Judge Ketanji Brown Jackson’s historic Senate confirmation hearings this week, Republican Sen. Josh Hawley of Missouri injected a predictable dose of nastiness into the dialogue when—sans evidence—he accused the Supreme Court nominee of enabling child sex offenders.

Hawley backed up his claim by misrepresenting Jackson’s record of sentencing offenders in several child pornography cases to less prison time than was recommended by federal sentencing guidelines, which is an ordinary practice within the federal judiciary. At Jackson’s Tuesday confirmation hearing, she clarified that she had ruled on 14 cases involving child pornography or sex crimes related to children, and in 10 of those cases, she imposed a sentence consistent with or greater than what was recommended by the government.

If Hawley and other Republicans’ bizarre fixation on framing Jackson as supposedly soft on child sex crimes feels like a twistedly familiar right-wing song and dance at this point, that’s because it is. There’s a reason 15% of Americans have said they believe Satan-worshiping pedophiles run the country. From Pizzagate—the viral 2016 conspiracy theory that the Hillary Clinton campaign ran a child sex trafficking ring at restaurants including a pizzeria in DC—to QAnon, the very online far-right has relied on equating the Democratic Party with pedophilia as its go-to smear. And actual prominent Republican politicians like Hawley, Sen. Ted Cruz (R-Texas), and others have not-so-subtly been taking their cues from these conspiracy theorists.

None of this is new. Cultural panics involving child porn and pedophilia have long been weaponized to stymie social progress, Jeffrey Debies-Carl, a professor of sociology at the University of New Haven whose research has focused on online conspiracy theories, told Jezebel. “People often make these accusations kind of cynically, because they have an agenda, because they know a lot of people will believe them,” he said. “These theories are frequently reactionary, or there’s some sort of threat perception involved that’s usually progressive in some way.”

Historically, the rise of cultural lore about supposed pedophilia and child sexual abuse at daycare centers in the 1980s was deployed as part of anti-feminist backlash against mothers for supposedly endangering their kids by dropping them off at daycare to go to work. More recently, the right wing has used egregious sexual violence cases involving children to argue for more policing, despite lack of evidence that registries or expanding the carceral system keeps children safe at all.

  President Biden's Supreme Court Nominee, U.S. Circuit Court of Appeals Judge Ketanji Brown Jackson, center, is shown in file photos with Republican Senate Judiciary Committee members Ted Cruz (TX), left, and Josh Hawley (MO).hawley

President Biden's Supreme Court Nominee, U.S. Circuit Court of Appeals Judge Ketanji Brown Jackson, center, is shown in file photos with Republican Senate Judiciary Committee members Ted Cruz (TX), left, and Josh Hawley (MO).

ny times logoNew York Times, Analysis: Judging a Judge on Race and Crime, Jonathan Weisman and Jazmine Ulloa, March 24, 2022 (print ed.). G.O.P. Plays to Base and Fringe. Conservative senators painted Judge Ketanji Brown Jackson, the Supreme Court nominee, as a jurist who had coddled criminals and embraced “woke” education.

After all of the entreaties from top Republicans to show respect at Judge Ketanji Brown Jackson’s confirmation hearings, Senator Ted Cruz on Tuesday afternoon chose to grill the first Black woman nominated for the Supreme Court on her views on critical race theory and insinuate that she was soft on child sexual abuse.

ketanji brown jackson robeThe message from the Texas Republican seemed clear: A Black woman vying for a lifetime appointment on the highest court in the land would, Mr. Cruz suggested, coddle criminals, go easy on pedophiles and subject white people to the view that they were, by nature, oppressors.

The attack, the most dramatic of several launched from inside and outside the Senate Judiciary Committee’s hearing room, contained barely coded appeals to racism and clear nods to the fringes of the conservative world. Two other Republican senators, Josh Hawley of Missouri and Marsha Blackburn of Tennessee, had already signaled they would go after Judge Jackson by accusing her of having a soft spot for criminals, especially pedophiles, and an allegiance to “woke” racialized education. Senator Tom Cotton, Republican of Arkansas, also pressed the issue on Tuesday night.

None of those issues were connected to cases coming before the Supreme Court — or to cases ever decided by the court. They were amplified outside the chamber by institutional Republicans and the conservative media. Fox News ran a headline reading “Ketanji Brown Jackson serves on board of school that promotes critical race theory,” and the Republican National Committee shared a GIF on Twitter showing the judge’s picture with her initials, “KBJ,” crossed out and replaced by “CRT.”

washington post logoWashington Post, Jackson defends sentencing decisions on a tense Day 3, Ann E. Marimow, Seung Min Kim and Robert Barnes, March 24, 2022 (print ed.). Committee is expected to vote on April 4. Ketanji Brown Jackson said for the first time that she would recuse herself from an upcoming ffirmative action case.

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washington post logoWashington Post, Opinion: The Supreme Court isn’t bothering to hide its designs on our democracy, Paul Waldman, right, and Greg Sargent, March 24, paul waldman2022. There are few things for which the current Supreme Court has been more roundly criticized than its extended attack on voting rights.

In cases dating back to the evisceration of the Voting Rights Act in 2013, the conservative majority has essentially unleashed Republican state governments to suppress votes and gerrymander Democrats out of power, further entrenching counter-majoritarian features of our system.

That has been a resoundingly successful assault on democracy. But it has also damaged the court’s image. So you’d think the conservative justices might be reluctant to be seen reaching down to put a thumb on the scale for Republicans quite so often and so blatantly.

You’d be mistaken.

On Wednesday, in an unsigned opinion on the “shadow docket,” the court granted emergency relief to Republicans in Wisconsin, who objected to a new map of legislative districts the state Supreme Court had decided on.

Now consider the big picture. The court’s legitimacy in the eyes of the public is clearly eroding. This comes as the court is showing newfound determination to weaken voting rights protections for minority voters, leading observers to discern a new level of hostility to democracy.

washington post logoWashington Post, Supreme Court throws out Wisconsin legislative maps adopted by state’s high court, a win for Republicans, Robert Barnes, March 23, 2022. In a separate case, the Supreme Court on Wednesday refused to block a new congressional map that Wisconsin's high court had selected.

A divided Supreme Court on Wednesday threw out Wisconsin state legislative maps that were drawn by the state’s Democratic governor and adopted by its highest court, a win for Republicans who control the legislature.

In a separate case, the high court refused to block a new congressional map that the Wisconsin court had selected.

Republicans who control the state legislature filed an emergency request that the U.S. Supreme Court to intervene in the legislature redistricting case, saying Gov. Tony Evers shifted too many voters to create an additional majority-Black district that Democrats said was required by the federal Voting Rights Act (VRA).

In an unsigned opinion, the justices said the Wisconsin Supreme Court’s decision was flawed. “We agree that the court committed legal error in its application of decisions of this Court regarding the relationship between the constitutional guarantee of equal protection and the VRA,” the opinion said.

The Wisconsin court “believed that it had to conclude only that the VRA might support race-based districting — not that the statute required it,” the opinion said. “Our precedent instructs otherwise.”

The justices said the court should have considered “whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.”

The case came to the U.S. Supreme Court on an emergency basis, or what critics call its “shadow docket,” in which justices make decisions without oral argument or extensive briefing.

Dissenting Justices Sonia Sotomayor and Elena Kagan said that was a mistake.

“The Court’s action today is unprecedented,” wrote Sotomayor. “In an emergency posture, the Court summarily overturns a Wisconsin Supreme Court decision resolving a conflict over the State’s redistricting, a decision rendered after a 5-month process involving all interested stakeholders.”

Both the governor’s map and the one proposed by the legislature leave the GOP in commanding position to control the legislature.

The Supreme Court’s opinion said the Wisconsin court “is free to take additional evidence if it prefers to reconsider the Governor’s maps rather than choose from among the other submissions. Any new analysis, however, must comply with our equal protection jurisprudence.”

BIG, Commentary: Judges Behaving Badly: Amazon Antitrust Suit Dismissed, Matt Stoller, right, March 24, 2022. It was a good week for Amazon, with the firm matt stolleralso closing on the MGM merger. But the antitrust meat grinder goes on.

Three items this week:

  • An incompetent judge let Amazon off the hook for monopolization.
  • Why hasn’t the FTC challenged the Amazon-MGM merger?
  • Is Congress about to fix our shipping mess? Sort of!

Last May, I wrote a long piece explaining the scam at the heart of Amazon Prime. When you think about it, Prime doesn’t really make any economic sense. Prime members pay a small annual or monthly fee, and in return get massively valuable and expensive benefits like free shipping, free movies and TV, video games, and so forth. Amazon likely gets between $10-20 billion a year in Prime fees, but delivering these services costs Amazon probably upwards of $80-100 billion a year. That means Amazon has to find $70 billion of cash somewhere as an endless subsidy. Yet, Amazon is profitable, and prices for goods on Amazon are almost always the lowest you can find online. How does Amazon pull this off?

amazon logo smallThere are three steps. First, Amazon acquired enough customers for its retail division to monopolize online buying and selling. It did this by offering free shipping and other benefits at a vastly subsidized rate to Prime members. For consumers, this seemed like a great deal. They got a very good reliable place to buy stuff online. But on the other side of the market, for sellers, many of whom sold 80-100% of their wares on Amazon’s Marketplace, Amazon acquired substantial market power. “[We] have nowhere else to go and Amazon knows it,” said one seller that sells products on Amazon.

Second, Amazon forced these captive sellers to pay massive fees to sell on its marketplace, by making them use its fulfillment and warehousing (as well as other services). Amazon took those fees, which brought in $121 billion in 2021, to pay for its various Prime benefits, including shipping. And third, and this is where it becomes brilliant, Amazon then forced those sellers to keep their prices high through non-Amazon sales channels. If they ever sold elsewhere for less, they would be de facto kicked off Amazon.

These three steps were each pivotal. Without the subsidy of Prime, it wouldn’t have been possible for Amazon to capture control over most online buying. Without the seller fees, Amazon couldn’t afford that subsidy. And without forcing sellers to raise their prices elsewhere to ensure Amazon had the lowest prices online, you’d see signs like ‘Buy cheaper at eBay.com’ or ‘Walmart.com costs less than Amazon’ everywhere, and Amazon would be undercut in the marketplace. But you don’t see such signs. Consumers think they are getting the best deal at Amazon, and they usually are.

It’s a genius scheme, because it gives the appearance that Amazon offers the lowest price and free shipping, when in fact consumers pay a higher cost karl racinefor products without realizing it. I first wrote about Prime because of an antitrust suit filed by D.C. Attorney General Karl Racine, right, who filed a case in district court spelling out this scheme in a rigorous and detailed way. There are a bunch of investigations going on into Amazon, and this was the first case filed that came out of them. Filing this case was a sort of loner approach by Racine, who is an aggressive and fearless litigator. It was an excellent complaint -- detailed, factually rigorous, and legally sound -- and a class action case with a very similar theory just passed the critical motion to dismiss stage in a Seattle courtroom with a Bush-appointee judge.

I thought it was going to be a titanic clash, and it brought critical legal questions into the courts to be hashed out by a jury. Unfortunately, the judge Racine got assigned to this case, Hiram Puig-Lugo, did not agree. Earlier this week, at what looked like a routine scheduling hearing, Puig-Lugo, whose expertise is in family law, shocked everyone involved by dismissing Racine’s Amazon complaint outright. That means the case is over, unless Racine appeals. And how Puig-Lugo dismissed the case was as odd as his choice to do so. For important complaints like this, judges almost always put down in writing their rationale for making decisions at key stages. But Puig-Lugo did not. He simply read from the bench that he didn’t think the claimed conduct violated the law.

The deeper you go, the more odd the decision. According to Law360, Puig-Lugo said in his ruling that maybe it was just a coincidence that merchants were raising prices on other channels. They could be engaged in “lawful, unchoreographed free-market behavior.” Such a statement makes no sense, because there were explicit contracts between Amazon and sellers mandating higher prices. And yet, the judge simply said when making his ruling from the bench, "That's how the market works.”

There are bad decisions in antitrust law, ones that make the law harder to enforce going forward. Usually bad decisions are on the outer edge of precedent, and have legal reasoning that is illogic but coherent. This, however, wasn’t just a bad decision. It was the decision of someone who didn’t care to learn the facts of the case before him, or even how antitrust law itself works. Frankly I’m not sure Puig-Lugo even read the complaints, though it’s also possible he’s just dumb. There are dumb judges. Or maybe he wanted the case to go away; his interest is in family law and trafficking, not complex business litigation. In any case, Puig-Lugo dismissed a well-prepared complaint on a very important part of the economy, without even explaining himself in writing.

Obviously, Racine should appeal. I would normally say this dismissal is good news for Amazon, or that this case shows that antitrust law needs to be rewritten by Congress or the states, but it was such an outlandish and stupid decision that it doesn’t strike me as having any broader lessons except that some judges are really bad at their job. (Though we do very much have a problem with bad judging!) It’s also embarrassing to cite it elsewhere, but since Puig-Lugo didn’t write anything, what could you even cite?!?

The one upside of this decision is that Puig-Lugo was appointed by Bill Clinton, which validates my theory that Bill Clinton ruined everything.

Anyway, stay tuned, because there will be more on the legality of Amazon Prime.

  • New York Times, Justice Clarence Thomas Hospitalized With Flu-Like Symptoms, Court Says

March 23

 

djt phone amazon public images

ny times logoNew York Times, Trump Is Guilty of ‘Numerous’ Felonies, Prosecutor Who Resigned Says, William K. Rashbaum, Ben Protess and Jonah E. Bromwich, March 23, 2022. Mark F. Pomerantz, who had investigated the former president, left after the Manhattan district attorney, Alvin Bragg, halted an effort to seek an indictment.

One of the senior Manhattan prosecutors who investigated Donald J. Trump believed that the former president was “guilty of numerous felony violations” and that it was “a grave failure of justice” not to hold him accountable, according to a copy of his resignation letter.

The prosecutor, Mark F. Pomerantz, submitted his resignation last month after the Manhattan district attorney, Alvin Bragg, abruptly stopped pursuing an indictment of Mr. Trump.

Mr. Pomerantz, 70, a prominent former federal prosecutor and white-collar defense lawyer who came out of retirement to work on the Trump investigation, resigned on the same day as Carey R. Dunne, another senior prosecutor leading the inquiry.

Mr. Pomerantz’s Feb. 23 letter, obtained by The New York Times, offers a personal account of his decision to resign and for the first time states explicitly his belief that the office could have convicted the former president. Mr. Bragg’s decision was “contrary to the public interest,” he wrote.

Mark Pomerantz, one of two lawyers who were leading a criminal inquiry into former President Donald J. Trump’s business practices, said in his resignation letter that he believed Mr. Trump had committed felonies.

“The team that has been investigating Mr. Trump harbors no doubt about whether he committed crimes — he did,” Mr. Pomerantz wrote.

Mr. Pomerantz and Mr. Dunne planned to charge Mr. Trump with falsifying business records, specifically his annual financial statements — a felony in New York State.

Mr. Bragg’s decision not to pursue charges then — and the resignations that followed — threw the fate of the long-running investigation into serious doubt. If the prosecutors had secured an indictment of Mr. Trump, it would have been the highest-profile case ever brought by the Manhattan district attorney’s office and would have made Mr. Trump the first American president to face criminal charges.

Earlier this month, The Times reported that the investigation unraveled after weeks of escalating disagreement between the veteran prosecutors overseeing the case and the new district attorney. Much of the debate centered on whether the prosecutors could prove that Mr. Trump knowingly falsified the value of his assets on annual financial statements, The Times found, a necessary element to proving the case.

While Mr. Dunne and Mr. Pomerantz were confident that the office could demonstrate that the former president had intended to inflate the value of his golf clubs, hotels and office buildings, Mr. Bragg was not. He balked at pursuing an indictment against Mr. Trump, a decision that shut down Mr. Pomerantz’s and Mr. Dunne’s presentation of evidence to a grand jury and prompted their resignations.

Mr. Bragg has said that his office continues to conduct the investigation. For that reason, Mr. Bragg, a former federal prosecutor and deputy New York State attorney general who became district attorney in January, is barred from commenting on its specifics.

Mr. Bragg’s predecessor, Cyrus R. Vance Jr., had decided in his final days in office to move toward an indictment, leaving Mr. Trump just weeks away from likely criminal charges. Mr. Bragg’s decision seems, for now at least, to have removed one of the greatest legal threats Mr. Trump has ever faced.

The resignation letter cast a harsh light on that decision from the perspective of Mr. Pomerantz, who wrote that he believed there was enough evidence to prove Mr. Trump’s guilt “beyond a reasonable doubt.”

“No case is perfect,” Mr. Pomerantz wrote. “Whatever the risks of bringing the case may be, I am convinced that a failure to prosecute will pose much greater risks in terms of public confidence in the fair administration of justice.”

In a statement responding to the letter, Mr. Trump’s lawyer, Ronald P. Fischetti, said that charges were not warranted and that Mr. Pomerantz “had the opportunity to present the fruits of his investigation to the D.A. and his senior staff on several occasions and failed.”

Mr. Fischetti, who was Mr. Pomerantz’s law partner in the 1980s and early 1990s, added: “We should applaud District Attorney Alvin Bragg for adhering to the rule of law and sticking to the evidence while making an apolitical charging decision based solely on the lack of evidence and nothing else.”

In its own statement, Mr. Trump’s company, the Trump Organization, called Mr. Pomerantz “a never-Trumper” and said: “Never before have we seen this level of corruption in our legal system.”

washington post logoWashington Post, Opinion: Supreme Court, Jackson exposes the real judicial radicals, Jennifer Rubin, March 23, 2022. Not so long ago, “conservatives” used to insist that the judiciary operate within constraints. Judges shouldn’t venture far from precedent, they finger-wagged. They should spell out the reasoning behind their rulings. In statutory interpretation, they should stick to the words of a text and the intent of its drafters.

That description, usually referred to as “judicial restraint,” bears no resemblance to the current right-wing justices on the Supreme Court. Indeed, Supreme Court nominee Ketanji Brown Jackson during her confirmation hearing this week has offered a refreshing reminder about how judges should comport themselves — and how radical the current majority on the court has become.

It’s no secret that right-wing justices are on a crusade to rip up precedent. From their efforts to weaken union rights to their threats of abandoning decades of abortion law, they have revealed their willingness to undertake dramatic shifts in law simply because they now have the votes to do so.

In 2019, within the space of six weeks, the right-wing majority took a sledgehammer to precedent twice. As NPR reported on the court’s ruling in Knick v. Township of Scott, Pennsylvania, “The 5-4 decision overturned decades of precedent that barred property owners from going to federal court until their claims had been denied in state court.” Justice Elena Kagan pointed out in her dissent: “The majority today holds, in conflict with precedent after precedent, that a government violates the Constitution whenever it takes property without advance compensation — no matter how good its commitment to pay. . . . Its consequence is to channel a mass of quintessentially local cases involving complex state-law issues into federal courts. And it transgresses all usual principles of stare decisis.”

Before that, in Franchise Tax Board of California v. Hyatt, the court made hash out of decades-old precedent, reversing a ruling that the Constitution does not bar suits brought against a state by an individual in the courts of another state. Justice Stephen G. Breyer sounded apoplectic in his dissent: “I understand that judges, including Justices of this Court, may decide cases wrongly. I also understand that later-appointed judges may come to believe that earlier-appointed judges made just such an error. And I understand that, because opportunities to correct old errors are rare, judges may be tempted to seize every opportunity to overrule cases they believe to have been wrongly decided.” However, he warned, “the law can retain the necessary stability only if this Court resists that temptation, overruling prior precedent only when the circumstances demand it.” Breyer added, “Today’s decision can only cause one to wonder which cases the Court will overrule next.”

washington post logoWashington Post, Supreme Court throws out Wisconsin legislative maps adopted by state’s high court, a win for Republicans, Robert Barnes, March 23, 2022. In a separate case, the Supreme Court on Wednesday refused to block a new congressional map that Wisconsin's high court had selected.

A divided Supreme Court on Wednesday threw out Wisconsin state legislative maps that were drawn by the state’s Democratic governor and adopted by its highest court, a win for Republicans who control the legislature.

In a separate case, the high court refused to block a new congressional map that the Wisconsin court had selected.

Republicans who control the state legislature filed an emergency request that the U.S. Supreme Court to intervene in the legislature redistricting case, saying Gov. Tony Evers shifted too many voters to create an additional majority-Black district that Democrats said was required by the federal Voting Rights Act (VRA).

In an unsigned opinion, the justices said the Wisconsin Supreme Court’s decision was flawed. “We agree that the court committed legal error in its application of decisions of this Court regarding the relationship between the constitutional guarantee of equal protection and the VRA,” the opinion said.

The Wisconsin court “believed that it had to conclude only that the VRA might support race-based districting — not that the statute required it,” the opinion said. “Our precedent instructs otherwise.”

The justices said the court should have considered “whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.”

The case came to the U.S. Supreme Court on an emergency basis, or what critics call its “shadow docket,” in which justices make decisions without oral argument or extensive briefing.

Dissenting Justices Sonia Sotomayor and Elena Kagan said that was a mistake.

“The Court’s action today is unprecedented,” wrote Sotomayor. “In an emergency posture, the Court summarily overturns a Wisconsin Supreme Court decision resolving a conflict over the State’s redistricting, a decision rendered after a 5-month process involving all interested stakeholders.”

Both the governor’s map and the one proposed by the legislature leave the GOP in commanding position to control the legislature.

The Supreme Court’s opinion said the Wisconsin court “is free to take additional evidence if it prefers to reconsider the Governor’s maps rather than choose from among the other submissions. Any new analysis, however, must comply with our equal protection jurisprudence.”

March 22

 

 President Biden's Supreme Court Nominee, U.S. Circuit Court of Appeals Judge Ketanji Brown Jackson, center, is shown in file photos with Republican Senate Judiciary Committee members Ted Cruz (TX), left, and Josh Hawley (MO).hawley

President Biden's Supreme Court Nominee, U.S. Circuit Court of Appeals Judge Ketanji Brown Jackson, center, is shown in file photos with Republican Senate Judiciary Committee members Ted Cruz (TX), left, and Josh Hawley (MO).

washington post logoWashington Post, Jackson pledges independence, neutrality in confirmation hearing, Seung Min Kim, Ann E. Marimow and Aaron C. Davis, March 22, 2022 (print ed.). Judge Ketanji Brown Jackson, who will be the first Black woman on the Supreme Court if confirmed, spent her official introduction before the Senate Judiciary Committee detailing her approach as a judge.

Supreme Court nominee Ketanji Brown Jackson on Monday promised she would be an independent jurist who will decide cases “without fear or favor” — emphasizing her neutrality on the bench in hopes of heading off the expected criticism from Republicans that she has been a judicial activist.

ketanji brown jackson robeJackson, right, who will be the first Black woman on the Supreme Court if confirmed, spent her official introduction before the Senate Judiciary Committee detailing her approach as a judge, describing it as narrowly focused on resolving the issues before her. She has been a federal judge for nine years, both on the trial court and now on the U.S. Court of Appeals for the District of Columbia Circuit.

“I know that my role as a judge is a limited one — that the Constitution empowers me only to decide cases and controversies that are properly presented. And I know that my judicial role is further constrained by careful adherence to precedent,” Jackson said.

In anticipation of questions from Republicans about her judicial philosophy and rulings against the Trump administration, Jackson emphasized that she decides cases from a “neutral posture.”

“I evaluate the facts, and I interpret and apply the law to the facts of the case before me, without fear or favor, consistent with my judicial oath,” she said.

Jackson’s opening remarks capped off a day when both Democratic and Republican senators — who took turns delivering their own statements on the first day of Jackson’s four-day confirmation hearings — indicated they were eager to turn a page away from the bitterness and heated rhetoric of past Supreme Court confirmation battles.

Yet at the same time, a handful of Senate Republicans unspooled years of political grievances about the judiciary wars, as they invoked not just the grueling fight over now-Justice Brett M. Kavanaugh’s confirmation nearly four years ago but also the treatment of other GOP judicial nominees dating back to Robert Bork in 1987.

washington post logoWashington Post, Live Reports: Senators to question Ketanji Brown Jackson on Day 2, John Wagner, March 22, 2022. Republicans signaled they’ll probe historic nominee’s judicial philosophy and record; Video: How other Supreme Court nominees answered questions on "Roe v. Wade"; Durbin pushes back on allegations from GOP colleagues Blackburn and Hawley.

Supreme Court nominee Ketanji Brown Jackson will face a first round of questioning Tuesday from the Senate Judiciary Committee during the second day of her confirmation hearings. While Democrats have lauded President Biden’s historic nominee, Republicans have signaled they will probe Jackson’s judicial philosophy and her record as a public defender and member of the U.S. Sentencing Commission.

During an opening statement Monday, Jackson, who has been a federal judge for nine years, promised she would be an independent jurist who will decide cases “without fear or favor.” If confirmed, she would be the first Black woman on the Supreme Court in its 233-year history.

Here’s what to know

  • Senators will get a second opportunity to question Jackson on Wednesday. Thursday will feature testimony from outside witnesses.
    Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) has set a goal of confirming Jackson before the Easter recess, which is scheduled to begin April 8.
  • Jackson is widely expected to be confirmed, as no Democratic senator so far has signaled any concern about supporting her nomination and only a simple majority of the 50-50 Senate is needed for confirmation, with Vice President Harris empowered to break ties.
  • Jackson, 51, has been nominated by Biden to replace retiring Justice Stephen G. Breyer. Breyer, 83, the high court’s oldest justice, has been a reliable liberal vote.
  • Starting at 8:30 a.m. Eastern, The Washington Post will present a “Special Report with Libby Casey” featuring reporting and analysis of the confirmation hearings.

March 21

 

President Biden and Vice President Kamala Harris introduce at a White House ceremony Supreme Court nominee Kentaji Brown Jackson, center, a judge on the U.S. District of Columbia Court of Appeals (pool photo, Feb. 25, 2022).

President Biden and Vice President Kamala Harris introduce at a White House ceremony Supreme Court nominee Kentaji Brown Jackson, center, a judge on the U.S. District of Columbia Court of Appeals (pool photo, Feb. 25, 2022).

 ny times logoNew York Times, Supreme Court Live Updates: Confirmation Hearings for Ketanji Brown Jackson Begin, Staff Reports, March 21, 2022 (video). 
President Biden’s nominee to the Supreme Court is facing the first of four days before the Senate Judiciary Committee. Senators are making opening statements, and Judge Jackson will deliver her own remarks.

The Senate Judiciary Committee on Monday will kick off a historic set of hearings on President Biden’s nominee for the Supreme Court, Ketanji Brown Jackson, who would be the first Black woman to serve there.

The proceedings will introduce Judge Jackson, who currently sits on the influential U.S. Court of Appeals for the District of Columbia Circuit, to much of the country, and give senators a high-profile opportunity to question her on matters of law and policy.

Here’s how it will unfold and what to keep an eye on.

At 11 a.m., the Senate Judiciary Committee is scheduled to begin the hearing, which is to take place in a cavernous room outfitted in white marble and wood paneling near the Capitol. Senators will take turns making opening statements, and Judge Jackson will deliver her own remarks.

The hearings are very likely to end in Judge Jackson’s confirmation; Democrats can confirm her without a single Republican vote if they stay united. But they would like some G.O.P. support, and Monday’s session will signal how aggressively Republicans plan to question her, an early indicator of her chances of winning anyone over. Republicans have conceded it is a sensitive situation, considering that her confirmation is likely and they are loath to be seen as piling on against a woman of color with a gold-plated legal résumé and a reputation as a solid jurist.

The Hill, Commentary, Republicans are attacking Judge Jackson for defending poor people's rights, Austin Sarat and Dennis Aftergut, March 21, 2022.  Public defenders represent poor people who are accused of committing crimes. They do so not because they condone what their clients do, but because the rule of law and the Constitution require that no one be denied the right to counsel simply because they cannot afford to pay.

What public defenders do is as American as apple pie and the Fourth of July.

But you would never know it from listening to what Republicans have been saying about President Biden’s nomination of Judge Ketanji Brown Jackson to the Supreme Court.

As her confirmation hearings begin, we can expect them to continue to try to revive a tried-and-true party playbook stratagem by highlighting the “horrible” crimes committed by people she represented as a public defender and waving the banner of law and order.

On March 16, Sen. Minority Leader Mitch McConnell (R-Ky.) laid the groundwork for Republican members of the Senate Judiciary Committee to play the dog-eared “soft on crime” card against Jackson.

Never mind that before Jackson became a federal judge in 2013, she spent seven years at large law firms and seven at the United States Sentencing Commission. Not important to McConnell. He focused exclusively on Jackson’s time as a public defender from 2005-2007.

The last Supreme Court justice to have defended indigent people accused of crime was also Black: His name was Thurgood Marshall.

Because Jackson would be the first Black female Supreme Court Justice, the “soft on crime” meme in 2022 is about as subtle a dog whistle as was Richard Nixon’s “law and order” presidential campaign, or that of racist third-party candidate George Wallace, back in 1968.

Sens. Josh Hawley (R-Mo.), Ted Cruz (R-Texas) and Tom Cotton (R-Ak.), all putative competitors for the 2024 Republican Presidential nomination, will likely double down on McConnell’s concerns about Judge Jackson’s work zealously defending the rights of poor people.

That trio rehearsed this line of attack during Judiciary Committee hearings on other Biden nominees to the federal judiciary who were public defenders. They have repeatedly tried to question their anti-crime bona fides.

Add to them Sen. Chuck Grassley (R-Iowa), also on the committee. In June 2021, he said, “We need to carefully scrutinize these federal defender nominees because the left seems to think they’ll rule in a certain way.” Neither Grassley nor his Senate Republican colleagues expressed similar concerns about bias when former President Trump sent them the names of lawyers whose primary qualification seemed to be their devotion to protecting the rights of polluters, denying rights to workers or ending abortion.

There’s more than a hint of hypocrisy in the attack on Judge Jackson’s service as a public defender.

Hawley, Cruz, Cotton and Grassley voiced no concerns about two of Trump’s judicial nominees who had worked as public defenders. They all voted for Trump judicial nominee Clifton L. Corker and for Roderick C. Young, though Corker and Young had spent part of their careers as public defenders.

And the two-facedness of claiming to be defenders of “law-and-order” hardly ends there. Think about the Jan. 6 violent attack on the Capitol. Hawley has used the photo of his famous pre-siege fist-pump to the Jan. 6 crowd to fundraise. Ted Cruz walked back his description of the participants in the Capitol siege as “terrorists” after Tucker Carlson criticized him for it. Cotton and Grassley both voted against a bipartisan commission to investigate the violence.

washington post logoWashington Post, Opinion: Ketanji Brown Jackson shows why she was nominated, Jennifer Rubin, March 21, 2022. Much of the first day of the confirmation hearing for Ketanji Brown Jackson, President Biden’s nominee for the Supreme Court, was not about Jackson at all.

Instead, Senate Republicans whined about the treatment of past nominees, going all the way back to Robert H. Bork’s hearing nearly 35 years ago. Have these Republicans forgotten that none of these nominees were denied a hearing, unlike Merrick Garland? Or that six of the nine justices on the court are partisan right-wingers chosen to deliver their preferred legal rulings?

Their histrionics was a sign of how little Republicans have to work with in opposing Jackson. Their accusations were as diverse as they were flimsy: Jackson is a zealot, they said. She is a pick of the radical left. She was a public defender who — gasp! — represented criminals. Sen. Josh Hawley (R-Mo.) repeated his already debunked claims that she is a softy on child porn defendants. Perhaps the lowest point came from Sen. Marsha Blackburn (R-Tenn.), who ranted about everything from masks to transgender children.

The day served as a reminder of how unpleasant, partisan and unenlightening these hearings have become — and of the low quality of senators in attendance compared to their predecessors. It is unimaginable that a Howard Baker of Tennessee or an Alan Simpson of Wyoming would behave like this.

If there was a pleasant surprise, it came in the form of energetic remarks from Thomas Griffith, a well-respected, retired D.C. Circuit Court judge whom George W. Bush appointed. Griffith noted that an appearance by a retired judge nominated by a president of another party should not be so unusual. That his introduction of Jackson seemed abnormal, he said, was a measure of “hyperpartisanship.” He added that judges are not supposed to be “partisans in robes.” Alas, Griffith’s words came at a time when the right-wing majority on the Supreme Court appears to be just that — partisans willing to twist procedural and substantive rules, rewrite statues and rip up decades-old precedents all to the benefit of Republicans.

Griffith gave Jackson his full-throated endorsement: She “is independent and adjudicates based on the facts and the law, and not as a partisan,” he said. “Time and again, she has demonstrated that. ... Her rule is simple: follow the law.”

It was then Jackson’s turn. She thanked God, her glowing family, her friends and her country. She invoked Justice Stephen G. Breyer, for whom she clerked, a not-too-subtle reminder that if the Senate found him acceptable, there should be no reason to oppose her. She gave a nod to Constance Baker Motley, the first African American woman appointed to the federal judiciary. And Jackson reaffirmed her “careful adherence to precedent,” acknowledging her tendency to write long opinions so people know exactly her reasons for deciding a case. (If only the Supreme Court’s right-wing justices felt similarly and stopped abusing the “shadow docket” and issuing orders without written opinions.)

Jackson provided a succinct description of her own view of what it means to be a judge: “I have been a judge for nearly a decade now, and I take that responsibility and my duty to be independent very seriously,” she said. “I decide cases from a neutral posture. I evaluate the facts, and I interpret and apply the law to the facts of the case before me.”

She is so manifestly qualified, so perfectly embodies the American dream and is so blessed with superior judicial temperament that it is obvious why Republicans are struggling. They just can’t seem to find a way to knock down a super-qualified, charming, humble and brilliant Black woman. It seems it does not occur to them that they should stop looking for the limelight (to further their presidential ambitions), ask short and reasonable questions and then vote to confirm on her qualifications. And that tells you everything you need to know about the decline of both the Senate and the Supreme Court.

 

supreme court Custom

ny times logoNew York Times, Supreme Court Live Updates: Confirmation Hearings for Ketanji Brown Jackson Begin, Staff Reports, March 21, 2022 (video). 
President Biden’s nominee to the Supreme Court is facing the first of four days before the Senate Judiciary Committee. Senators are making opening statements, and Judge Jackson will deliver her own remarks.

The Senate Judiciary Committee on Monday will kick off a historic set of hearings on President Biden’s nominee for the Supreme Court, Ketanji Brown Jackson, who would be the first Black woman to serve there.

The proceedings will introduce Judge Jackson, who currently sits on the influential U.S. Court of Appeals for the District of Columbia Circuit, to much of the country, and give senators a high-profile opportunity to question her on matters of law and policy.

Here’s how it will unfold and what to keep an eye on.

At 11 a.m., the Senate Judiciary Committee is scheduled to begin the hearing, which is to take place in a cavernous room outfitted in white marble and wood paneling near the Capitol. Senators will take turns making opening statements, and Judge Jackson will deliver her own remarks.

The hearings are very likely to end in Judge Jackson’s confirmation; Democrats can confirm her without a single Republican vote if they stay united. But they would like some G.O.P. support, and Monday’s session will signal how aggressively Republicans plan to question her, an early indicator of her chances of winning anyone over. Republicans have conceded it is a sensitive situation, considering that her confirmation is likely and they are loath to be seen as piling on against a woman of color with a gold-plated legal résumé and a reputation as a solid jurist.

March 20

 

President Biden and Vice President Kamala Harris introduce at a White House ceremony Supreme Court nominee Kentaji Brown Jackson, center, a judge on the U.S. District of Columbia Court of Appeals (pool photo, Feb. 25, 2022).

President Biden and Vice President Kamala Harris introduce at a White House ceremony Supreme Court nominee Kentaji Brown Jackson, center, a judge on the U.S. District of Columbia Court of Appeals (pool photo, Feb. 25, 2022).

ny times logoNew York Times, On Eve of Confirmation Hearings, G.O.P. Steps Up Attacks on Jackson, Carl Hulse, March 20, 2022. The White House and Democrats have pushed back against new claims that the Supreme Court nominee Judge Ketanji Brown Jackson was too lenient in some cases.

Republicans are intensifying their attacks on Judge Ketanji Brown Jackson after weeks of publicly reserving judgment on President Biden’s Supreme Court nominee, ahead of historic hearings on the first Black woman to be put forward as a justice.

Republican leaders, wary of engaging in a potentially racially charged spectacle that could prompt a political backlash, have promised a more dignified review of the latest Supreme Court candidate, after a series of bitter clashes over the court. But in recent days, with the approach of the Senate Judiciary Committee’s hearings on her nomination that begin on Monday, their tone has shifted.

Last week, Senator Josh Hawley, a Missouri Republican who sits on the panel and will question Judge Jackson, claimed his review of her judicial record had determined that she had been lenient in sentencing some sex offenders and those convicted of possessing child pornography. He also suggested that, as a member of the United States Sentencing Commission, she worked to reduce penalties for those caught with child pornography. A detailed background paper prepared for the Judiciary Committee made a similar case.

At the same time, Senator Mitch McConnell, Republican of Kentucky and the minority leader, has doubled down on his suggestion that Judge Jackson’s experience as a public defender could influence her view of the law and lead her to favor criminal defendants.

 

supreme court Custom

March 19

washington post logoWashington Post, Analysis: Five questions Ketanji Brown Jackson may face in Supreme Court hearing, Amber Phillips, March 19, 2022. When Judge ketanji brown jackson robeKetanji Brown Jackson appears before senators for her confirmation hearing to be the next Supreme Court justice, she’ll face a number of friendly Democrats — and some firebrand Republicans who are expected to ask her heated questions about race, ethics and her background as a public defender.

But Jackson has lots of recent precedent to avoid answering even the most basic questions. Previous nominees, especially recent ones, made it a practice to constantly dodge questions about what they believe and even long-decided cases. They came under a great deal of criticism from the other party for it, but not enough that it derailed their nominations.

Here are five of the most hot-button questions Jackson is likely to face in her confirmation hearing, and how she might respond — if at all.

March 18

washington post logoWashington Post, Former judiciary workers urge Congress to protect court employees from discrimination and harassment, Ann E. Marimow, March 18, 2022 (print ed.). Former law clerks and other federal judiciary employees shared highly personal stories of workplace harassment and discrimination Thursday, urging Congress to pass legislation that would better protect such workers and ensure an impartial system for reporting misconduct.

Lawmakers from both parties said that, despite efforts by the U.S. courts to overhaul their system, problems persist because the judiciary’s more than 30,000 employees still lack the same legal rights as other government and private-sector workers.

“Judicial branch employees continue to be harassed and discriminated against with little recourse,” Rep. Hank Johnson (D-Ga.) said during the House Judiciary Committee hearing. “Time and time again, representatives of the judiciary have told us that there isn’t a problem, that we should let them handle it themselves.”

Three former federal judiciary employees — a law clerk, public defender and high-level administrative official — told the committee about a workplace culture that has discouraged reporting, describing harassment they had endured and what they said are shortcomings in the process for resolving misconduct claims.

Last year, lawmakers introduced bipartisan legislation to extend to judiciary employees the same anti-discrimination rights afforded to other government employees and to protect whistleblowers. The proposal would create an independent special counsel to investigate workplace complaints and report its findings to Congress and an oversight commission made up of people with experience enforcing civil rights laws.

Roberts says federal judiciary has some issues but doesn’t need congressional intervention

Leaders of the federal judiciary acknowledged their work is not done, but said Thursday that sweeping legislation is unnecessary and inappropriate. The court system, said U.S. District Judge Julie A. Robinson, has already made “significant strides and improvements and has done so expeditiously” by creating new paths for reporting, providing confidential guidance for employees and expanding protections against abusive conduct.

“Some changes don’t occur overnight. This is a continuing effort, and we expect some changes will need time to take root,” said Robinson, a member of an advisory group, which has recommended a long list of changes in judiciary policies.

Robinson and Judge M. Margaret McKeown echoed concerns of Chief Justice John G. Roberts Jr. about Congress interfering with the inner workings of a separate, equal branch of government.

Rep. Darrell Issa (R-Calif.) said he understands the separation-of-powers concerns and the imperative for the judiciary to retain independence.

“Self-rule by a separate branch” of government is “acceptable, but it has to be comparable, accountable and transparent,” he said, adding “we have to hold everyone accountable.”

Laura C. Minor, who worked for the Administrative Office of the U.S. Courts for more than two decades, told lawmakers that the judiciary has long struggled to deal with misconduct. The judiciary’s proposed changes are insufficient, she said, and many complaints are still not reported because people fear retaliation.

“From what I can see today and what we all have heard, the judiciary’s insistence on self-policing only serves its interest in self-protection,” said Minor, who was the equal employment opportunity officer for the court’s administrative office and former secretary of the Judicial Conference, the policymaking body for the federal courts.

March 14

 United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r). (Safe Image)

United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r).

 

Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). 

washington post logoWashington Post, Ginni Thomas, wife of Supreme Court justice, says she attended Jan. 6 ‘Stop the Steal’ rally before Capitol attack, Mariana Alfaro, March 14, 2022. Thomas, the wife of Clarence Thomas, said she left the rally before President Donald Trump took the stage.

Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, for the first time has publicly acknowledged that she participated in the Jan. 6, 2021, “Stop the Steal” rally on the Ellipse that preceded the storming of the Capitol by a pro-Trump mob, raising questions about the impartiality of her husband’s work.

In an interview with the conservative Washington Free Beacon that was published Monday, Thomas, who goes by Ginni, said she was part of the crowd that gathered on the Ellipse that morning to support President Donald Trump. Trump was claiming falsely that widespread voter fraud had delivered the presidency to Democrat Joe Biden — a falsehood he continues to repeat.

Thomas said she was at the rally for a short time, got cold and went home before Trump took the stage at noon that day.

“I was disappointed and frustrated that there was violence that happened following a peaceful gathering of Trump supporters on the Ellipse on Jan. 6,” the conservative activist told the publication. “There are important and legitimate substantive questions about achieving goals like electoral integrity, racial equality, and political accountability that a democratic system like ours needs to be able to discuss and debate rationally in the political square. I fear we are losing that ability.”

A spokeswoman for the Supreme Court did not immediately respond to a request for comment.

In February 2021, Thomas apologized to her husband’s former law clerks after a rift developed among them over her election advocacy of Trump and endorsement of the Jan. 6 rally that led to violence and death at the Capitol.

The attack by a pro-Trump mob trying to stop the confirmation of Biden’s electoral college win left the Capitol vandalized and resulted in the deaths of five people and injuries to 140 members of law enforcement.

“I owe you all an apology. I have likely imposed on you my lifetime passions,” Thomas wrote to a private Thomas Clerk World email list of her husband’s staff over his three decades on the bench.

Ginni Thomas apologizes to husband’s Supreme Court clerks after Capitol riot fallout

As an outspoken activist, Ginni Thomas has drawn scrutiny to her husband’s work on the court and his impartiality, most recently in connection with the Jan. 6 attack and the House select committee tasked with investigating the riot.

While Ginni Thomas’s activism has, in multiple instances, overlapped with cases that have been decided by her husband, her connection to the rally that preceded the insurrection has reignited fury among his critics, who say it illustrates a gaping hole in the court’s rules: Justices essentially decide for themselves whether they have a conflict of interest.

March 5

 

Attorney Gen. William Barr, center, announces his version of the findings of Special Counsel Robert Mueller, flanked by aides Rod Rosenstein and Edward O'Callaghan (C-SPAN photo).

Attorney Gen. William Barr, center, announces his version of the findings of Special Counsel Robert Mueller in 2019, flanked by aides Rod Rosenstein and Edward O'Callaghan, while keeping the text of the Mueller Report largely secret for weeks while news coverage focused on the Barr verbal version, supplemented by his written excerpts (C-SPAN photo).

washington post logojeffrey toobinNew York Times, Book Review: William P. Barr’s Good Donald Trump and Bad Donald Trump, Jeffrey Toobin, right, March 5, 2022

ONE DAMN THING AFTER ANOTHER
Memoirs of an Attorney General
By William P. Barr

It’s a rare Washington memoir that makes you gasp in the very second sentence. Here’s the first sentence from William P. Barr’s One Damn Thing After Another, an account of his two turns as attorney general: “The first day of December 2020, almost a month after the presidential election, was gray and rainy.” Indeed it was. Here’s the second: “That afternoon, the president, struggling to come to terms with the election result, had heard I was at the White House. …” Uh, “struggling to come to terms with”? Not exactly. How about “struggling to overturn the election he just lost” or “struggling to subvert the will of the voters”? Maybe “struggling to undermine American democracy.”

Such opening vignettes serve a venerable purpose in the Washington memoir genre: to show the hero speaking truth to power. Barr had just told a reporter that the Justice Department had “not seen fraud on a scale that could have effected a different outcome in the election.”

This enraged the president. “You must hate Trump,” Trump told Barr. “You would only do this if you hate Trump.” But Barr stood his ground. He repeated that his team had found no fraud in the election results. (This is because there was none.)

By the end of the book, Barr uses the election controversy as a vehicle for a novel interpretation of the Trump presidency: Everything was great until Election Day, 2020. As Barr puts it, “In the final months of his administration, Trump cared only about one thing: himself. Country and principle took second place.” For Barr, it was as if this great president experienced a sudden personality transplant. “After the election,” Barr writes, “he was beyond restraint. He would only listen to a few sycophants who told him what he wanted to hear. Reasoning with him was hopeless.”

The heart of One Damn Thing After Another concerns the earlier days of Trump’s presidency when, apparently, “country and principle” took first place. In his December confrontation with Trump, Barr recalls a comment that may be more revealing than he intends: “‘No, Mr. President, I don’t hate you,’ I said. ‘You know I sacrificed a lot personally to come in to help you when I thought you were being wronged.’”

Robert Mueller (FBI Official Photo)This, as the rest of the book makes clear, is the real reason Barr came out of a comfortable retirement in early 2019 to serve as Jeff Sessions’s successor as attorney general. Barr — who thought Trump was “being wronged” by the investigation into the 2016 election led by Robert S. Mueller III, left, the special counsel — wanted to come to Trump’s defense.

Barr refers to the allegations that Trump colluded with the Russians in the lead-up to the election as, variously, the “Russiagate lunacy,” the “bogus Russiagate scandal,” “the biggest political injustice in our history” and the “Russiagate nonsense” (twice). Barr was as good as his word and sought to undermine Mueller and protect Trump at every opportunity. As Barr reveals in his book, Trump first asked him to serve on his defense team, but Barr later figured he could do more good for the president as attorney general. He was right.

Throughout, Barr affects a quasi-paternal tone when discussing Trump, as if the president were a naughty but good-hearted adolescent. When Trump James Comeysays repeatedly that he fired the F.B.I. director James Comey, right, because of the Russia investigation, Barr spins it as, “Unfortunately, President Trump exacerbated things himself with his clumsy miscues, notably making imprecise comments in an interview with NBC News’s Lester Holt and joking around with the Russian foreign minister and ambassador the day after firing Comey.” The just-joking defense is a favorite for Barr, as it is for the former president. In a strikingly humorless book, there is one “funny” line from Trump: “‘Do you know what the secret is of a really good tweet?’ he asked, looking at each of us one by one. We all looked blank. ‘Just the right amount of crazy,’ he said.” (Rest assured that Barr says the president spoke “playfully.”)

During his confirmation hearing, Barr promised to make Mueller’s report public — and he contrived to do so in the most helpful way for the president. In the key part of the report, concerning possible obstruction of justice by Trump (like firing Comey to interfere with the Russia investigation), Mueller said he was bound by Justice Department policy barring indictments of sitting presidents. So, instead of just releasing the report as he had promised, Barr took it upon himself to decide whether Trump could be charged with obstruction of justice. Barr “cleared the decks to work long into the night and over the weekend, studying the report. I wanted to come to a decision on obstruction.” And then, mirabile dictu, Barr concluded that the president had not violated the law, and wrote a letter to that effect. When the Justice Department got around to releasing the actual report several weeks later, it became apparent that the evidence against Trump was more incriminating than Barr let on, but by that point the attorney general had succeeded in shaping the story to the president’s great advantage.

djt barr conferring headshotsBarr, shown conferring at left with Trump, portrays Mueller, a former colleague and friend from their service in the George H W. Bush administration, as a feeble old man pushed around by liberals on his staff. To thwart them, Barr took extraordinary steps to trash Mueller’s work. On the eve of the sentencing of Roger Stone, Trump’s longtime political adviser, for obstruction of justice, Barr overruled the prosecutors and asked for a lighter sentence: “While he should not be treated any better than others because he was an associate of the president’s, he also should not be treated much worse than others.” In fact, Stone was being sentenced pursuant to guidelines that apply in all cases, but in this one and only instance, Barr decided to intervene.

michael flynn wh podium CustomEven more dramatic was Barr’s intercession on behalf of Michael Flynn, right, who pleaded guilty to lying to the F.B.I. Prodded by Flynn’s attorney, Sidney Powell, who later emerged as a principal conspiracy theorist in the post-2020 election period, Barr not only allowed Flynn to revoke his guilty plea but then dismissed the case altogether. “I concluded that the handling of the Flynn matter by the F.B.I. had been an abuse of power that no responsible A.G. could let stand,” he writes. Suffice it to say that none of the thousands of other cases brought by the Justice Department during Barr’s tenure received this kind of high-level attention and mercy; moreover, it was rare, and perhaps even unprecedented, for the department to dismiss a case in which the defendant pleaded guilty.

The only scalps Barr wanted were of those in the F.B.I. who started the Russia investigation in the first place. He writes, “I started thinking seriously about how best to get to the bottom of the matter that really required investigation: How did the phony Russiagate scandal get going, and why did the F.B.I. leadership handle the matter in such an inexplicable and heavy-handed way?” He appointed a federal prosecutor named John Durham to lead this probe, which has now been going on longer than the Mueller investigation, with little to show for it.

Barr’s odd theory about Good Trump turning into Bad Trump may have more to do with his feelings about Democrats than with the president he served. “I am under no illusion about who is responsible for dividing the country, embittering our politics and weakening and demoralizing our nation,” he writes. “It is the progressive left and their increasingly totalitarian ideals.” In a way, it’s the highest praise Barr can offer Trump: He had the right enemies.

Jeffrey Toobin, the chief legal analyst at CNN, is writing a book about the Oklahoma City bombing.

ny times logoNew York Times, Supreme Court Restores Death Sentence for Boston Marathon Bomber, Adam Liptak, March 5, 2022 (print ed.). The Biden administration, which announced a moratorium on federal executions, has pursued the case against Dzhokhar Tsarnaev, who helped carry out the 2013 bombings.

The Supreme Court on Friday reinstated the death sentence of Dzhokhar Tsaraev HS Tsarnaev, right, who was convicted of helping carry out the 2013 Boston Marathon bombings that killed three and injured hundreds more.

The vote was 6 to 3, with the court’s three liberal members in dissent. The majority sided with the Biden administration in ruling that a federal appeals court had erred in overturning the death sentence a jury had handed down for Mr. Tsarnaev’s role in the bombings.

“Dzhokhar Tsarnaev committed heinous crimes,” Justice Clarence Thomas wrote for the majority. “The Sixth Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one.”

Friday’s ruling cleared the way for Mr. Tsarnaev’s execution, but that is unlikely to happen in the near future in light of a moratorium the Biden administration has imposed on carrying out the federal death penalty.

The bombings, near the finish line of the marathon, transformed a beloved tradition into bloody carnage. The attack left 260 injured, many of them grievously. Seventeen people lost limbs.

tamerlan tsarnaev hsDzhokhar Tsarnaev and his older brother Tamerlan, Justice Thomas wrote, “each brought a backpack containing a homemade pressure-cooker bomb packed with explosives inside a layer of nails, BBs and other metal scraps.”

“Each detonation sent fire and shrapnel in all directions,” Justice Thomas wrote. “The blast from Tamerlan’s bomb shattered Krystle Campbell’s left femur and mutilated her legs. Though bystanders tried to save her, she bled to death on the sidewalk.”

“Dzhokhar’s bomb ripped open the legs of Boston University student Lingzi Lu,” he wrote. “Rescuers tried to stem the bleeding by using a belt as a makeshift tourniquet. She too bled to death.”

A law enforcement officer was killed as the brothers fled a few days later. Tamerlan Tsarnaev died after a shootout with the police during which he was run over by his brother, who was driving a stolen vehicle.

A three-judge panel of the U.S. Court of Appeals for the First Circuit, in Boston, upheld Dzhokhar Tsarnaev’s convictions in 2020 on 27 counts. But the appeals court ruled that his death sentence should be overturned because the trial judge had not questioned jurors closely enough about their exposure to pretrial publicity and had excluded evidence concerning Tamerlan Tsarnaev.

Justice Thomas wrote that the appeals court was wrong on both points.

Judge George A. O’Toole Jr., who presided over the trial, had conducted a detailed and thorough questioning of 256 prospective jurors over three weeks, Justice Thomas wrote, after culling an initial pool of 1,373 jurors using a 100-question form.

Mr. Tsarnaev’s lawyers had asked that jurors be required to detail what they had heard and read in news reports about the bombing. Judge O’Toole rejected the request, calling it unfocused and unmanageable, a ruling that Justice Thomas wrote was “reasonable and well within his discretion.”

“In sum,” Justice Thomas wrote, “the court’s jury selection process was both eminently reasonable and wholly consistent with this court’s precedents.”

The dissenting justices did not quarrel with Justice Thomas’s analysis of Mr. Tsarnaev’s objections to how the jury was selected. The justices diverged, however, on whether evidence concerning Tamerlan Tsarnaev should have been admitted.

March 2

Roll Call, Ketanji Brown Jackson begins historic first steps toward Supreme Court, Todd Ruger, March 2, 2022. Judiciary Committee confirmation hearings are scheduled for week of March 21.

Judge Ketanji Brown Jackson visited with key senators Wednesday, the first of what could be dozens of short face-to-face, get-to-know-you meetings ahead of her confirmation hearing in three weeks.

Senate Judiciary Chairman Richard J. Durbin announced that the hearings will take place the week of March 21, with a traditional schedule of one day for introductions and senator statements, two days for senator questions and one day for outside witnesses.

“As I have said from the time that Justice [Stephen G.] Breyer announced his retirement, the Committee will undertake a fair and timely process to consider Judge Jackson’s nomination,” Durbin wrote in a letter to the committee members.

Durbin was also one of the first four senators with whom Jackson met for about 30 minutes each on her first day in the Capitol on Wednesday as part of the confirmation process. After the meeting, Durbin said there were a handful of Republicans who might vote for her and the confirmation process for her appeals court spot last year, during which the committee looked at her record and asked her questions on the record, meant her hearing for the high court could move forward quickly.

“There’s little mystery as to how she views a case and analyzes it,” Durbin told reporters, since she has written nearly 600 opinions. Ultimately, three Republican senators voted to confirm her to her seat on the U.S. Court of Appeals for the District of Columbia Circuit: Susan Collins of Maine, Lindsey Graham of South Carolina and Lisa Murkowski of Alaska.

Jackson also met with Senate Majority Leader Charles E. Schumer, Minority Leader Mitch McConnell and Sen. Charles E. Grassley of Iowa, the top Republican on the Judiciary Committee, who told reporters that a certain date for the hearing is “not the important thing right now.”

“The important thing is whatever it takes to do the proper vetting, and I can’t put days on that, but there ought to be a chance for any Republican that wants to have a face-to-face meeting to have a face-to-face meeting,” Grassley said. “Now, I don’t know what time that takes, because I don’t know how many people want to do that.”

Grassley said the other 10 Republicans on the committee likely will want face-to-face meetings, but he was going to ask on Wednesday about the rest of the 50-senator GOP conference and what their preferences are.

At the same time, Grassley hinted that the meetings with Supreme Court nominees aren’t too substantive for him.

March 1

washington post logoWashington Post, Supreme Court conservatives seem skeptical of EPA emissions regulation, Robert Barnes, March 1, 2022 (print ed.). Some of the Supreme Court’s conservative justices seemed skeptical Monday that the Environmental Protection Agency can proceed with sweeping regulation of climate-warming emissions from the nation’s power plants without clearer authority from Congress.

Such a finding would be in step with the justices’ worry that federal agencies are exceeding the powers granted to them. But it would be a huge blow for the Biden administration, which has ambitious plans to drastically cut emissions and would like the U.S. power grid to run entirely on clean energy by 2035.

In Monday’s two-hour hearing, Justice Samuel A. Alito Jr. indicated that the ambitious plans of the administration implicated the “major questions” doctrine. That says agencies undertaking such actions must be clearly authorized by Congress, rather than relying on general language in federal law, in this case the Clean Air Act.

washington post logoWashington Post, Supreme Court to review Indian Child Welfare Act, which prioritizes adoptions by Native American parents, tribes, Robert Barnes, March 1, 2022 (print ed.). The Supreme Court will consider the constitutionality of a federal law intended to rectify past abuses of Native American children being removed from their homes and tribes, the justices announced Monday.

The court consolidated four cases about the 1978 Indian Child Welfare Act (ICWA), which prioritizes placement of Indian children with relatives, other Native Americans or a tribe. The act was intended to stop past practices in which hundreds of thousands of Native American children were removed from their homes by adoption agencies and placed with White families or in group settings.

Native Americans say the law is essential to them, and have pledged to defend it.

 

February 2022

Feb. 25-26

 

President Biden and Vice President Kamala Harris introduce at a White House ceremony Supreme Court nominee Kentaji Brown Jackson, center, a judge on the U.S. District of Columbia Court of Appeals (pool photo, Feb. 25, 2022).

President Biden and Vice President Kamala Harris introduce at a White House ceremony Supreme Court nominee Kentaji Brown Jackson, center, a judge on the U.S. District of Columbia Court of Appeals (pool photo, Feb. 25, 2022).

washington post logoWashington Post, Supreme Court Live Updates: Biden touts Jackson’s integrity as he names Supreme Court pick, John Wagner, Mariana Alfaro, Felicia Sonmez and Eugene Scott, Feb. 26, 2022 (print ed.). Jackson, who would be the first Black female justice, says U.S. is ‘greatest beacon’ of democracy.

President Biden on Friday announced his historic pick of federal judge Ketanji Brown Jackson to serve on the Supreme Court, following through on a campaign pledge to nominate the first Black woman to the nation’s highest court in its 223-year history.

During an event at the White House, Biden said Jackson is “someone with extraordinary character” and “will bring to the Supreme Court an independent-minded, uncompromising integrity.” After being introduced, Jackson said the United States is “the greatest beacon of hope and democracy.”

If confirmed, Jackson would replace Justice Stephen G. Breyer, who announced last month that he would retire when the court term ends this summer. Democrats are determined to move swiftly to confirm Jackson, whom Biden elevated last year to the influential U.S. Court of Appeals for the D.C. Circuit.

Here’s what to know

  • Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) has publicly set a goal of confirming Biden’s nominee before the Easter recess, which is scheduled to begin April 8.
  • Although Biden made history with his choice, it will not change the court’s 6-to-3 conservative majority.
  • Biden’s pick comes amid the unusual circumstances of an ongoing invasion of Ukraine by Russia that has dominated the news for several days.
  • Biden interviewed at least two other candidates for the job: J. Michelle Childs, a federal judge in South Carolina, and Leondra Kruger, a justice on the California Supreme Court, according to people familiar with the process.
  • Black activists and women’s groups that banded together to protect Vice President Harris from racist and sexist attacks before and after the 2020 election are remobilizing for the battle over Biden’s nominee.

 

supreme court Custom

washington post logoWashington Post, D.C. Circuit judge would be third African American in Supreme Court history, Tyler Pager, Sean Sullivan, Seung Min Kim and ketanji brown jackson robeAnn E. Marimow, Feb. 26, 2022 (print ed.). U.S. Circuit Court of Appeals Judge Kentaji Brown Jackson, right, would be the first Black woman on the high court, and the first justice since Thurgood Marshall with significant experience as a criminal defense attorney, Robert Barnes and Emily Guskin, Feb. 25, 2022.  

washington post logoWashington Post, What you need to know about Ketanji Brown Jackson, Marc Fisher, Ann E. Marimow and Lori Rozsa, Feb. 26, 2022 (print ed.). How Jackson found a path between confrontation and compromise. Biden’s Supreme Court nominee was a ‘child of the ’70s’ who overcame obstacles by finding middle ground.

washington post logoWashington Post, Analysis: 4 issues to watch in the confirmation fight, Aaron Blake, Feb. 26, 2022 (print ed.). Jackson has been considered the front-runner throughout much of the process. Although the hearings are expected to be contentious, given the stakes and the 50-50 Senate — another finalist, J. Michelle Childs, was the preferred pick for some Republicans — Jackson was confirmed to a federal appeals court just last year, and she has had some bipartisan support.

What to know about Ketanji Brown Jackson

It’s not clear at this point how much resistance Republicans will put up to her nomination, given it won’t change the balance of power on the court and Democrats have the necessary 50 votes.

But it’s worth looking at any potential hurdles she might face. Although both of Jackson’s confirmations — last year and in 2012 to a federal-district court — were relatively amicable, Republicans have isolated a few things that could come up.

Her work on Guantánamo detainee cases. One line of potential attack spanned both her confirmations, but without Republicans going at it too hard: her representation of a Guantánamo Bay detainee, Khi Ali Gul.

washington post logoWashington Post, Inside Biden’s pick of Ketanji Brown Jackson for the Supreme Court, Seung Min Kim, Sean Sullivan and Tyler Pager, Feb. 26, 2022. While the White House sought to portray a deliberative process, few in Washington expected the president to choose anyone other than the appellate court judge.

washington post logoWashington Post, For Black women, this is ‘magic on such a profound level,’ Vanessa Williams and Cleve R. Wootson Jr., Feb. 26, 2022. Three years ago, a photo of 19 African American women — all candidates for judgeships in Harris County, Tex. — went viral. The image seemed to capture the hearts and hopes of Black women across the country.

Judge LaShawn A. Williams, one of the women in that photo, recalled the sisterhood she felt as part of that “Black Girl Magic” campaign. When asked about President Biden’s decision to nominate Ketanji Brown Jackson as the first Black woman nominated to the Supreme Court, she felt something even more powerful, she said.

“This is angelic,” she said. “This is magic on such a profound level.”

Williams, who serves on the county’s civil court, didn’t get to see the ceremony in which Biden introduced Jackson. She was on the bench Friday, presiding over cases. But she described herself as being “over the moon” about the president’s choice to fill his first vacancy on the high court.

“She’s a real sister,” Williams said, noting that Jackson wears her hair in Sisterlocks. “A beautiful Brown sister. So smart, so eloquent … I have been beaming all day.”

If she is confirmed by the Senate, Jackson would become the third Black person and sixth woman to serve on the Court since its 1789 founding. The 51-year-old currently serves on the U.S. Court of Appeals for the D.C. Circuit.

Feb. 25

washington post logoWashington Post, D.C. Circuit judge would be third African American in Supreme Court history, Tyler Pager, Sean Sullivan, Seung Min Kim and ketanji brown jackson robeAnn E. Marimow, Feb. 25, 2022. U.S. Circuit Court of Appeals Judge Kentaji Brown Jackson, right, would be the first Black woman on the high court, and the first justice since Thurgood Marshall with significant experience as a criminal defense attorney, Robert Barnes and Emily Guskin, Feb. 25, 2022.  

washington post logoWashington Post, What you need to know about Ketanji Brown Jackson, Marc Fisher, Ann E. Marimow and Lori Rozsa, Feb. 25, 2022. How Jackson found a path between confrontation and compromise. Biden’s Supreme Court nominee was a ‘child of the ’70s’ who overcame obstacles by finding middle ground.

washington post logoWashington Post, Analysis: 4 issues to watch in the confirmation fight, Aaron Blake, Feb. 25, 2022. Jackson has been considered the front-runner throughout much of the process. Although the hearings are expected to be contentious, given the stakes and the 50-50 Senate — another finalist, J. Michelle Childs, was the preferred pick for some Republicans — Jackson was confirmed to a federal appeals court just last year, and she has had some bipartisan support.

What to know about Ketanji Brown Jackson

It’s not clear at this point how much resistance Republicans will put up to her nomination, given it won’t change the balance of power on the court and Democrats have the necessary 50 votes.

But it’s worth looking at any potential hurdles she might face. Although both of Jackson’s confirmations — last year and in 2012 to a federal-district court — were relatively amicable, Republicans have isolated a few things that could come up.

Her work on Guantánamo detainee cases. One line of potential attack spanned both her confirmations, but without Republicans going at it too hard: her representation of a Guantánamo Bay detainee, Khi Ali Gul.

Feb. 23

 

 United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r). (Safe Image)

United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r).

Proof, Investigation: New Revelations Indicate Ginni Thomas Was a Key Author of Trump’s January 6 Coup Plot, Seth Abramson, left, Feb. 23, seth abramson graphic2022. A recent NYT report explosively updates past reporting at PROOF on Ginni Thomas’s involvement in January 6. The new revelations—taken in sum—position Thomas as a chief author of the insurrection.

Introduction The most comprehensive reporting on Ginni Thomas’s involvement in the January 6 attack on the U.S. Capitol continues to seth abramson proof logobe this exclusive Proof report from January.

However, the New York Times just published a very lengthy feature on the Thomases—Ginni Thomas and her husband, Supreme Court Justice Clarence Thomas—that gave its readers a series of buried ledes about Ginni Thomas and January 6.

It’s unclear why the Times did little to highlight these revelations; all are ensconced deep within an article it takes more than an hour and half to listen to via an audio reading supplied by the newspaper. Whatever the explanation for the odd framing of Ginni Thomas’s role in January 6 by the Times, Proof has decided to update its prior report with a summary of the Times feature that focuses only on the elements of the feature that will matter to federal investigators.

These elements, combined with the January Proof report, confirm that Ginni Thomas was one of the chief architects of the events of January 6, 2021. While it remains unclear whether the House January 6 Committee will now subpoena Ginni Thomas, it is increasingly evident that the Committee is gathering all available data on potential witnesses—including data published in venues like Proof, which the Committee has previously cited in its formal filings.

For this reason, the article below may be of assistance to decision-makers wondering if Ginni Thomas has valuable evidence about the January 6 attack on the Capitol to offer both Congress and the FBI. The short answer: she does. And indeed the evidence curated in the article that follows warrants the immediate issuance of a subpoena to Ginni Thomas for both testimony and documents. It warrants, further, the interrogation of Thomas by agents of the FBI.

Addressing the Elephant in the Room: Clarence Thomas: The New York Times focuses a majority of its article on Ginni Thomas on her husband, Clarence Thomas—a common mistake that Proof warned about at the very beginning of its own feature on Ginni Thomas.

Ginni Thomas’s activities are considerably more newsworthy and influential than her husband’s, deserving coverage exclusive from any consideration of Justice Thomas’s arch-conservative jurisprudence.

Seth Abramson, shown at right, founder of Proof, is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

Feb. 22

ny times logoNew York Times Magazine, The Long Crusade of Clarence and Ginni Thomas, Danny Hakim and Jo Becker, Feb. 22, 2022. The Supreme Court justice and his wife have long battled for a more conservative America. New reporting shows how far Ginni Thomas was willing to go.

The call to action was titled “Election Results and Legal Battles: What Now?” Shared in the days after the 2020 presidential election, it urged the members of an influential if secretive right-wing group to contact legislators in three of the swing states that tipped the balance for Joe Biden — Arizona, Georgia and Pennsylvania. The aim was audacious: Keep President Donald J. Trump in power.

The group, the Council for National Policy, brings together old-school Republican luminaries, Christian conservatives, Tea Party activists and MAGA operatives, with more than 400 members who include leaders of organizations like the Federalist Society, the National Rifle Association and the Family Research Council. Founded in 1981 as a counterweight to liberalism, the group was hailed by President Ronald Reagan as seeking the “return of righteousness, justice and truth” to America.

As Trump insisted, without evidence, that fraud had cheated him of victory, conservative groups rushed to rally behind him. The council stood out, however, not only because of its pedigree but also because one of its newest leaders was Virginia Thomas, the wife of Justice Clarence Thomas and a longtime activist in right-wing circles.

She had taken on a prominent role at the council during the Trump years and by 2019 had joined the nine-member board of C.N.P. Action, an arm of the council organized as a 501(c)4 under a provision of the tax code that allows for direct political advocacy. It was C.N.P. Action that circulated the November “action steps” document, the existence of which has not been previously reported. It instructed members to pressure Republican lawmakers into challenging the election results and appointing alternate slates of electors: “Demand that they not abandon their Constitutional responsibilities during a time such as this.”

Such a plan, if carried out successfully, would have almost certainly landed before the Supreme Court — and Ginni Thomas’s husband. In fact, Trump was already calling for that to happen. In a Dec. 2 speech at the White House, the president falsely claimed that “millions of votes were cast illegally in swing states alone” and said he hoped “the Supreme Court of the United States will see it” and “will do what’s right for our country, because our country cannot live with this kind of an election.”

clarence virginia thomas swearing inThe Thomases (shown at a 1991 swearing in ceremony at the White House) have long posed a unique quandary in Washington. Because Supreme Court justices do not want to be perceived as partisan, they tend to avoid political events and entanglements, and their spouses often keep low profiles. But the Thomases have defied such norms. Since the founding of the nation, no spouse of a sitting Supreme Court justice has been as overt a political activist as Ginni Thomas. In addition to her perch at the Council for National Policy, she founded a group called Groundswell with the support of Stephen K. Bannon, the hard-line nationalist and former Trump adviser. It holds a weekly meeting of influential conservatives, many of whom work directly on issues that have come before the court.

Ginni Thomas insists, in her council biography, that she and her husband operate in “separate professional lanes,” but those lanes in fact merge with notable frequency. For the three decades he has sat on the Supreme Court, they have worked in tandem from the bench and the political trenches to take aim at targets like Roe v. Wade and affirmative action. Together they believe that “America is in a vicious battle for its founding principles,” as Ginni Thomas has put it. Her views, once seen as on the fringe, have come to dominate the Republican Party. And with Trump’s three appointments reshaping the Supreme Court, her husband finds himself at the center of a new conservative majority poised to shake the foundations of settled law. In a nation freighted with division and upheaval, the Thomases have found their moment.

This article draws on hours of recordings and internal documents from groups affiliated with the Thomases; dozens of interviews with the Thomases’ classmates, friends, colleagues and critics, as well as more than a dozen Trump White House aides and supporters and some of Justice Thomas’s former clerks; and an archive of Council for National Policy videos and internal documents provided by an academic researcher in Australia, Brent Allpress.

The reporting uncovered new details on the Thomases’ ascent: how Trump courted Justice Thomas; how Ginni Thomas used that courtship to gain access to the Oval Office, where her insistent policy and personnel suggestions so aggravated aides that one called her a “wrecking ball” while others put together an opposition-research-style report on her that was obtained by The Times; and the extent to which Justice Thomas flouted judicial-ethics guidance by participating in events hosted by conservative organizations with matters before the court. Those organizations showered the couple with accolades and, in at least one case, used their appearances to attract event fees, donations and new members.

New reporting also shows just how blurred the lines between the couple’s interests became during the effort to overturn the 2020 election, which culminated in the rally held at the Ellipse, just outside the White House grounds, aimed at stopping Congress from certifying the state votes that gave Joe Biden his victory. Many of the rally organizers and those advising Trump had connections to the Thomases, but little has been known about what role, if any, Ginni Thomas played, beyond the fact that on the morning of the March to Save America, as the rally was called, she urged her Facebook followers to watch how the day unfolded. “LOVE MAGA people!!!!” she posted before the march turned violent. “GOD BLESS EACH OF YOU STANDING UP or PRAYING!”

But her role went deeper, and beyond C.N.P. Action. Dustin Stockton, an organizer who worked with Women for America First, which held the permit for the Ellipse rally, said he was told that Ginni Thomas played a peacemaking role between feuding factions of rally organizers “so that there wouldn’t be any division around January 6.”

“The way it was presented to me was that Ginni was uniting these different factions around a singular mission on January 6,” said Stockton, who previously worked for Bannon. “That Ginni was involved made sense — she’s pretty neutral, and she doesn’t have a lot of enemies in the movement.”

Ginni Thomas, who turns 65 on April 25, did not respond to requests for comment, and Justice Thomas, who is 73, declined to comment through a court spokesperson.

ny times logoNew York Times, Supreme Court to Hear Case of Web Designer Who Objects to Same-Sex Marriage, Adam Liptak, Feb. 22, 2022. The Supreme Court agreed on Tuesday to hear an appeal from a Colorado web designer who objects to providing services for same-sex marriages, returning the justices to a battleground in the culture wars pitting claims of religious freedom against laws prohibiting discrimination on the basis of sexual orientation.

The court last considered the clash in 2018, when a similar dispute between a Colorado baker and a gay couple failed to yield a definitive ruling.

The precise question the justices agreed to decide in the new case is “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

The court will hear the case, 303 Creative LLC v. Elenis, No. 21-476, in its next term, which starts in October. It concerns Lorie Smith, who owns a website design company that says it serves gay customers but intends to limit its wedding-related services to celebrations of heterosexual unions. Ms. Smith has said she intends to post a message saying the company’s policy is a product of her religious convictions.

The case may settle a question left open in 2018: how to reconcile claims of religious liberty with laws barring discrimination based on sexual orientation.

Feb. 18

washington post logoWashington Post, Opinion: We now see stark evidence of Trump’s toxic judicial legacy, Ruth Marcus, right, Feb. 18, 2022. Another Trump judge ruth marcushas struck, in another bid to defang the Voting Rights Act. This decision wouldn’t ordinarily merit much notice — it’s a single opinion by a district court judge. But it offers stark evidence of Donald Trump’s toxic judicial legacy, illustrates how conservative justices invite legal mischief to bubble up from the lower courts, and threatens what remains of one of the country’s proudest legislative achievements.

The ruling came Thursday from U.S. District Judge Lee Rudofsky of Little Rock, a Harvard Law School graduate, Federalist Society member (of course) and former Arkansas solicitor general. Rudofsky found that Section 2 of the Voting Rights Act, which protects minority voters against unfair redistricting or other voting practices that have discriminatory effects, can only be enforced by the Justice Department. No civil rights groups, no individual voters need apply — I mean, are entitled to file suit.

This radical interpretation flies in the face of the history, purpose and longtime interpretation of the Voting Rights Act; it ignores congressional lee rudofskyintent and long-standing Supreme Court rulings. And, if it were to stand, it would all but guarantee that the protections of the Voting Rights Act would be meaningless whenever there is a Republican in the White House.

No judge has ever — ever — thrown out a Section 2 claim on the grounds that the law barred suits by private plaintiffs. Even Arkansas, whose newly redrawn state legislative district lines were at issue in the case before Rudofsky, left, didn’t make this argument. Rudofsky raised it on his own — and said he would toss the case unless the Justice Department decided to join it in the next five days.

This is part of an ugly pattern that has left the Voting Rights Act in tatters. In 2013’s Shelby County v. Holder, the Supreme Court’s conservative majority eviscerated Section 5 of the law, which required certain states to obtain advance approval for voting changes. That pretty much just left Section 2, which allows lawsuits after changes are enacted.

But last year, in an Arizona case, Brnovich v. Democratic National Committee, the high court engaged in a wholesale rewriting of Section 2 that drained it of effectiveness in cases involving voting rules and procedures. Just last week, intervening in an Alabama redistricting case, the court signaled new hostility to using Section 2 to challenge district lines that reduce the ability of minority voters to elect candidates of their choice.

Rudofsky’s ruling is a direct outgrowth of Brnovich. The majority opinion was so egregious — it “mostly inhabits a law-free zone,” Justice Elena Kagan wrote in dissent — that hardly anyone paid attention to a concurring opinion by Justices Neil M. Gorsuch and Clarence Thomas that said it was “an open question” whether private parties could sue under Section 2.

As I’ve written before, the Gorsuch-Thomas concurrence was an especially dishonest piece of work. To buttress their bias against private suits, Gorsuch and Thomas cited a single appeals court case from 1981 that simply mentioned the issue. For decades, before and after a congressional rewrite of the law in 1982, the existence of a private right of action was assumed; Brnovich, which itself involved a lawsuit by a private party, cited nine other such cases. The question wasn’t ajar — not until Gorsuch and Thomas cracked it open.

Their gambit worked. When civil rights groups challenged Texas’s new voting law under Section 2, the state took up the Gorsuch-Thomas offer and argued that the plaintiffs didn’t have any right to sue. Texas lost, with the judge writing in December that “it would be ambitious indeed for a district court ... to deny a private right of action in the light of precedent and history.”

Not too ambitious for Rudofsky, who proclaimed he was just doing his job, even if it led to unfortunate results.

Why does all this matter? Because Rudofsky might be just the start. Because the federal government has limited resources to bring these voting rights cases and, under Republican administrations, demonstrably limited interest in doing so. And because, as Kagan put it last week, “a law this Court once knew to buttress all of American democracy” is increasingly being whittled into insignificance by activist judges who claim they are simply following the law, even as they strain to neuter it.

washington post logoWashington Post, Opinion: Republicans’ buffoonish, disingenuous attacks on an Innocence Project attorney, Radley Balko, right, Feb. 18, 2022. radley balko catoThis week, Republicans on the Senate Judiciary Committee lined up to pummel Innocence Project attorney Nina Morrison, President Biden’s nominee for the U.S. District Court for the Eastern District of New York. Morrison has helped free about 30 innocent people from prison in her career and would bring desperately needed balance to a federal judiciary loaded with ex-prosecutors.

Rather than recognize her qualifications, Republican after Republican beclowned themselves with misleading attacks and self-serving theater.

Start with Sen. Josh Hawley (R-Mo.), who solemnly told Morrison, left, “I will oppose you and anyone else the administration sends to us who nina morrisondo not understand the necessity of the rule of law.” Hawley’s emphasis on “the rule of law” was interesting, given that at that very moment, his campaign was hawking trinkets emblazoned with the senator’s fist-pumping efforts to overturn the 2020 election.

Sen. Mike Lee (R-Utah) criticized an op-ed Morrison wrote for the New York Times about prosecutor misconduct, because Morrison didn’t emphasize that such misconduct is rare. But misconduct is documented only in a small percentage of cases. That’s likely because there’s little incentive for anyone — including defense attorneys — to report it. And Morrison’s essay criticized the fact that even when prosecutorial misconduct is reported and proved, the offending prosecutors are rarely punished. That’s the surest sign of a broken system.

If these Republicans truly cared about the rule of law, they would be heaping praise on attorneys such as Morrison. As with any other institution, we improve the criminal justice system by exposing and correcting its flaws, not by pretending those flaws don’t exist.

The policies people such as like Morrison recommend to uproot the causes of wrongful convictions — such as stronger rules ensuring prosecutors share all evidence with the defense, tighter controls on cognitive bias in forensics and restrictions on testimony from jailhouse informants — can also help apprehend and convict the real perpetrators before they strike again. When police and prosecutors can’t use quack experts and jailhouse snitches to confirm shaky theories — when they’re forced to remain open-minded to all possible suspects — they’re more likely to follow the evidence.

According to a 2021 Cato Institute study, former prosecutors and government attorneys outnumber former defense and civil rights attorneys on the federal bench by about seven to one. There hasn’t been anyone on the Supreme Court with significant criminal defense experience in 30 years. The Biden administration deserves praise, not scorn, for addressing that imbalance.

For senators such as Cruz, Cotton, Lee and Hawley, however, this is all mere sport. It really doesn’t matter that they’re wrong on the facts, or that they’ve mischaracterized Morrison’s career. For them, this is about sowing fear and anger to position themselves for the midterms and later runs for office.

But the people Morrison freed from prison have little time for politics as sport. Time is what was taken from them. Her nomination to the federal bench is validation that their suffering mattered — that should some wrongly convicted prisoner try to raise an innocence claim in the future, there would be at least one more voice on the federal bench willing to take them seriously. And it’s infuriating to watch these senators make a mockery of it all.

Feb. 13

Steady, Opinion: Precedent Be Damned, Dan Rather, right (author, commentator and former CBS Nightly News Anchor and Managing Editor), and dan rather 2017Elliot Kirschner, Feb. 13, 2022. Of all the challenges to American democracy we currently face, one that hasn’t gotten enough attention is the United States Supreme Court.

To be sure, the Court is on the political radar. But a lot of the coverage and awareness focuses on the impact of individual rulings (or expected rulings) that upend the current status of the law on such issues as voting rights, affirmative action, abortion, and the ability of the federal government to regulate areas like the environment. Another line of coverage deals with the justices themselves, and trying to tease apart their whims and states of mind to handicap how they might rule.

All of this is important. But these are but individual tiles in a much larger mosaic -- a mosaic I hope the national press will spend more time piecing together. What is required is to step back and see the big picture. And what one sees is deeply disturbing.

Instead of reasoned argumentation, we see snap judgments. Instead of deliberation we see grandstanding. Instead of humility we see a cocky disregard for precedent. The legitimacy of the Supreme Court is wavering -- some might argue it has already been debased. And with it, the larger legal system quakes with uncertainty.

The latest outrage came this past week when the Court stayed a unanimous ruling by a three-judge district court panel which said that Alabama’s new congressional map violated the Voting Rights Act by denying fair representation for Black Alabamians. The immediate effect of this is that Black residents, who make up 27 percent of the state’s population, will only be the majority in one of seven districts in the 2022 elections (and likely thereafter). More generally, it means the Voting Rights Act has been dealt another grave blow.

It should be noted that two of the three judges who ruled in the matter at the district court had been appointed by President Trump -- so not exactly bleeding heart liberals. And their ruling striking down the Alabama map was not considered particularly controversial because, as many legal analysts noted, what the state did was as clear a violation of the law and of precedent as you are likely to find. Five justices on the highest court didn’t care.

As someone who has covered Alabama and the plight of civil rights there since the 1960s, I can tell you that the long history of repression and discrimination in a state whose nickname is the “Heart of Dixie” is a secret to no one. And while it is tempting to see these kinds of cases in terms of their sweeping import, we cannot forget the individuals on the ground in what was known as the Black Belt are being denied fair representation of their needs in Congress. This is exactly what the Voting Rights Act of 1965 was supposed to protect against.

For all of those who would argue that the protections of that landmark legislation are no longer needed, we can find ample evidence to the contrary in the rising divisive racial animus plaguing our country. Furthermore, the ongoing fight over access to the polls, and for representation in Congress, shows that the battle for the ballot box remains far from settled.

It is tempting to contextualize the Supreme Court’s ruling as nothing more than a political calculation. But it is hard to tell, because the Court’s majority didn’t even issue a formal decision. This was due once again to the justices’ use of the so-called “shadow docket.” Rather than the methods by which Supreme Court cases, especially ones that overturn longterm precedent, are supposed to be decided -- briefings, oral arguments, deliberations -- this was an emergency measure, a stay of a lower court’s ruling, that essentially eviscerated one of the seminal pieces of American legislation.

With today's decision, the Supreme Court's five far-right justices have effectively rewritten the Voting Rights Act, obliterating its vital protections against racial gerrymandering—and doing it through the shadow docket.

And here is where the full picture starts to come into view. This was always the hope of Mitch McConnell and the Federalist Society, which fought to fill the ranks of the U.S. Judiciary with hard-right true believers. They understood that even if they lost the other levers of federal power, Congress and the presidency, they could still shape the law of the land by owning the courts. In so doing, as we are seeing, their judges (I hesitate to call them conservative, because there is nothing conservative in their approach) could nullify the products of the democratic process in ways that promote their interests.

In light of the political valence which hangs heavily over our current age, it is possible to infer that what happened in the Alabama case was “Republican justices” wanting to make sure the Democrats didn’t get another seat in the House of Representatives. Whether that is fair or not to the justices in the majority we have no way of knowing. And that is exactly the problem. We don’t know, because there was no argumentation and no attempt to tether their decision to the law. So suspicion hangs over the entire enterprise.

It is the job of the press to explain both the actions and the stakes. And it is the responsibility of American voters to decide whether this is how they want their nation’s business to be conducted.

Feb. 12

washington post logoWashington Post, Opinion: Once again, the Supreme Court shows whose rights it protects, Ruth Marcus, right, Feb. 12, 2022. Whose rights matter? As ruth marcusthe Supreme Court grapples with when to intervene in an ongoing case and when to hold back, it slings around a lot of impartial-sounding legal jargon: “likelihood of success on the merits,” “balance of equities,” “irreparable harm.” But the fundamental question boils down to the justices’ conflicting visions of whose rights they deem worthy of protection — and whose they are willing to see violated.

Time after time, in case after case, from capital punishment to voting, from pandemic restrictions to abortion, the conservative justices’ priorities manifest themselves. They leap to act on behalf of state officials who might be inconvenienced by having to wait for a full ruling; they are similarly solicitous of religious individuals who claim that their constitutional protections are being infringed. Meanwhile, inmates facing execution, women seeking abortions, minority voters challenging voting restrictions — their arguments for urgent intervention are routinely discounted and rejected.

This judicial double standard was once again on flagrant display Monday as the court, splitting 5 to 4, intervened in an Alabama redistricting case. African Americans, who account for 27 percent of Alabama residents, constitute a majority in just one of its seven congressional districts.

The justices agreed to review that ruling — fair enough. But in the meantime, the conservative majority stepped in to put on hold the lower court’s order that the state draw a new map, in time for the midterm elections, including a second majority-Black district.

Whose rights matter? In this case, the conservative majority airily privileged the convenience of state legislators over the ability of Black voters to secure fair representation — all while pretending it was simply following the rules rather than putting a heavy thumb on the scale for one side.

“Pretending” might overstate matters, since the majority did not explain its action. That was left to a concurrence from Justice Brett M. Kavanaugh. Joined by Justice Samuel A. Alito Jr., Kavanaugh insisted that blocking the lower-court order was a simple matter of maintaining regular judicial process, letting the case be decided after full briefing and argument. He invoked what he described as a “bedrock tenet of election law” — that courts shouldn’t “swoop in and re-do a State’s election laws in the period close to an election.”

Except that Alabama’s primary isn’t until late May. Absentee voting will start on March 30 — but that leaves plenty of time for the legislature to redraw a few districts. It took just five days to produce the new map. “Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others,” Kavanaugh lamented.

What’s missing here is any expression — any hint — of concern for the countervailing rights of Black voters. Inconvenience to state officials who have to scramble to redraw maps or candidates who aren’t sure about the contours of their districts? Huge. Infringement on the ability of Black residents to have their political voices fully heard? Not so much.

When it comes to this Supreme Court, some rights are more equal than others. Some state officials deserve deference and accommodation; others are subject to judicial second-guessing. This is two-tier justice, as sloppily reasoned as it is unfairly dispensed.

Feb. 11

 

djt hands open amazon safe

Press Run, Commentary: How Trump gets away with shredding everything, Eric Boehlert, right, Feb. 11, 2022. The consummate bully. We just witnessed eric.boehlertanother textbook example this week of how Trump gets away with bending rules in his favor, and without having to pay a price from the press or the Beltway establishment.

It’s maddening to watch and it highlights just how unprepared D.C. institutions still are in terms of dealing with an unapologetic authoritarian like Trump who, through his entire adult life, has always assumed rules do not apply to him. And they clearly do not.

The media continue to normalize his criminality, in this case absconding from the White House with classified documents as he readies another presidential run. (And shredding other docs.) It’s the same D.C. press corps that crucified Hillary Clinton for years simply because journalists thought her email story might have a hint of criminality to it. It never did.

What Trump has done since he first arrived in Washington, D.C., in January 2017 was shred longstanding Beltway protocols; traditions that for decades and sometimes centuries were based on a ‘gentleman’s agreement’ on the proper way to behave and the ethical course that should be followed while running the government. The consummate bully and liar, Trump didn’t care about any of those rules and began obliterating them immediately. He flooded the zone with crass, outlandish and destructive behavior, which the press tried to keep pace with the first. Shattering Beltway protocols used to carry a penalty, which was handed out by the press.

Eventually, as the years passed, news outlets mostly gave up, especially with the day-to-day transgressions, adopting a Trump-being-Trump view of his chronic rule breaking. Beltway institutions, particularly within the federal government, embraced the same mealy-mouthed approach, which gave Trump the okay to trample norms. “He didn’t think the rules applied to him,” a former White House aide told CNN this week. And he was right.

That’s why he packed up 15 boxes of presidential documents, some of them marked “top secret,” and shipped them off to Mar-a-lago, even though all the contents should have been sent to the National Archives, because the Presidential Records Act requires that all records created by presidents be turned over at the end of their administrations. Previously, Trump spent years destroying presidential documents, which is not allowed by law.

The whole story revolved around “the Trump administration flagrantly violating federal law by removing and destroying protected federal records,” as Media Matters noted. But that’s not how it got played in the press this week.

The Washington Post, which broke the 15-boxes story on Monday, politely carried spin from unnamed Trump advisers saying there had been no “nefarious intent” in keeping the batch of documents, some of which the January 6 committee want as part of its insurrection investigation. Instead, there had been a “frenzied packing process” in the wake of Trump’s defeat, the Post explained.

The newspaper actually granted anonymity to a “former Trump White House official,” so he or she could be quoted as saying that Trump packing up the 15 boxes was just an honest mistake by a man who would never consider breaking the rules — the same Trump who told more than 20,000 lies while in office.

Following up the Post’s credulous reporting, the New York Times managed to be equally obsequious, as it typed up the same spin from the same former Trump officials. Shorter Times: Nothing to see here folks, it was all just a misunderstanding.

Feb. 10

ny times logoNew York Times, Guest Essay: The Supreme Court Has Crossed the Rubicon, Linda Greenhouse, Feb. 10, 2022 (print ed.). Ms. Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 through 2021.

You know the Rubicon has been crossed when the Supreme Court issues a conservative voting rights order so at odds with settled precedent and without any sense of the moment that Chief Justice John Roberts feels constrained to dissent.

This is the same John Roberts who in 1982, as a young lawyer in the administration of President Ronald Reagan, fought a crucial amendment to the Voting Rights Act of 1965; whose majority opinion in 2013 gutted one-half of the Voting Rights Act and who joined an ahistoric opinion last summer that took aim at the other half; and who famously complained in dissent from a 2006 decision in favor of Latino voters in South Texas that “it is a sordid business, this divvying us up by race.”

Yes, that Chief Justice Roberts. What the 5-to-4 majority did was that far out of line.

The unsigned order that drew the chief justice’s dissent Monday night blocked the decision by a special three-judge Federal District Court ordering the Alabama Legislature to draw a second congressional district in which Black residents constitute a majority. Alabama’s population is 27 percent Black. The state has seven congressional districts. The lower court held that by packing some Black voters into one district and spreading others out over three other districts, the state diluted the Black vote in violation of the Voting Rights Act.

The Supreme Court will hear Alabama’s appeal of the district court order in its next term, so the stay it granted will mean that the 2022 elections will take place with district lines that the lower court unanimously, with two of the three judges appointed by President Donald Trump, found to be illegal.

Chief Justice Roberts objected that the ordinary standards under which the Supreme Court grants a stay of a lower court opinion had not been met. “The district court properly applied existing law in an extensive opinion with no apparent errors for our correction,” he wrote. Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, also dissented in a more extensive opinion that accused the majority of using the court’s emergency “shadow docket” not only to intervene improperly on behalf of the state but also to change voting rights law in the process.

This is no mere squabble over procedure. What happened Monday night was a raw power play by a runaway majority that seems to recognize no stopping point.

Linda Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008. She is the author of “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.”

ny times logoNew York Times, A Product of Public Universities, Michelle Childs Would Be an Unconventional Court Pick, Erica L. Green and Rick Rojas, Feb. 10, 2022 (print ed.). The judge is seen by some as a long shot for the Supreme Court, but supporters say her bipartisan backing and the appeal of her humble ascent should not be overlooked.

It was just before Christmas, and Jean H. Toal, then the chief justice of the South Carolina Supreme Court, was in a bind. She needed an emergency order drawn up, but the courthouse in Columbia, the state capital, was empty. She was relieved to reach someone who assured her, “Chief, I got it.”

It was J. Michelle Childs, then a state circuit court judge who had made a name for herself as one of the most adept on the bench.

The memory sums up the reputation of Judge Childs, now a Federal District Court judge in South Carolina, who rose through the ranks of state schools, local government and the South Carolina legal system to the short list of potential Supreme Court nominees for President Biden, who has pledged to nominate a Black woman to replace Justice Stephen G. Breyer.

The 55-year-old judge, who has served on the federal bench since 2010, is seen in elite circles as a long shot compared with other Black female candidates whose high-profile connections and Ivy League pedigrees fit the mold of a traditional Supreme Court appointee. But Judge Childs’s powerful champions in Congress — particularly Representative James E. Clyburn, the South Carolina Democrat who is widely credited with saving Mr. Biden’s presidential candidacy — and the broad appeal of her humble ascent could make her a formidable contender.

“If you make assumptions about South Carolina, and a certain type of a judge and a non-Ivy League education, you won’t know what you’re missing in Michelle Childs — she is brilliant,” said Judge Toal, who would often tap Judge Childs to serve in an acting capacity on the state’s high court.

People who have known Judge Childs for decades, personally and professionally, struggle to assign her a political ideology. Many describe a pragmatic approach to her rulings, which they say she issues after intense preparation and deliberation.

“I could have as easily seen Judge Childs be nominated by a Republican than as a Democrat,” said William C. Hubbard, the dean of the University of South Carolina School of Law, who first met Judge Childs when she was a law student there. “I think that is a reflection of how people view her, not as an ideologue but a fair judge.”

On Wednesday, Jen Psaki, the White House press secretary, said Mr. Biden was seeking advice from a range of elected and nonelected officials, and approaching the nomination process in “a bipartisan manner.”

washington post logoWashington Post, Opinion: For Republicans, being ‘qualified’ has nothing to do with merit, Jennifer Rubin, right, Feb. 10, 2022. Republicans, if nothing else, are jennifer rubin new headshotconsistent when it comes to considering women of color for political appointments. They have expressed indignation toward President Biden’s pledge to appoint a Black woman to the Supreme Court. It’s affirmative action, they say. It’s “insulting.” She will be a “lesser Black woman,” as one conservative academic put it.

The assertion that women of color are radical and hence unqualified has been echoing through the Senate halls for more than a year now.

Shortly after Biden took office, Republicans declared Neera Tanden, an Indian American woman nominated to lead the Office of Management and Budget, unfit for the position because of acerbic tweets. Then, Kristen Clarke, Biden’s choice to head the Justice Department’s civil rights division, came under baseless attacks that she was racist and anti-Semitic. Meanwhile, Vanita Gupta, chosen by Biden for the No. 3 position at the Justice Department, was accused of being anti-police despite endorsements from many law enforcement groups.

Now, Senate Minority Leader Mitch McConnell (R-Ky.), who delighted in rubber-stamping judges from a list curated by the Federalist Society during the Trump administration, is warning the president not to “outsource” his selection “to the radical left.” Apparently, a pick that passes muster with civil rights groups will be suspect.

It is commonplace for Republicans to tag women of color as extreme, radical, angry and hyperpartisan. When it comes to their own nominees, it is not as if they have a strong record of choosing sober-minded, restrained and respectful nominees. Justice Brett M. Kavanaugh couldn’t get through his confirmation hearings without smearing senators and screaming about a plot against him.

washington post logoWashington Post, Black female lawmakers warn against fighting over Supreme Court pick, Marianna Sotomayor, Feb. 10, 2022. They want to make sure the eventual nominee is not tainted by pitting candidates against each other ahead of expected GOP attacks.

Black female lawmakers are elated that President Biden will soon nominate the first Black woman to sit on the Supreme Court.

But there are concerns that the early jockeying over whom he should choose will pit potential nominees against each other at a time when the party should be focused on celebrating a historic moment.

“I just don’t think it’s our place to pit Black women against each other in trying to get this spot. No,” Rep. Cori Bush (D-Mo.) told reporters Tuesday when asked if the Congressional Black Caucus is uniting around any potential nominees. “Let’s push all of them up there. And whoever has all the things that’s needed to get this job done, the qualifications, the experience, the will — they got to have the will to do this because it’s going to be tough — let’s let that person rise.”

Labor groups wary of potential Supreme Court pick backed by top House Democrat

The issue has arisen, in part, because of aggressive public lobbying by House Majority Whip James E. Clyburn (D-S.C.), the highest-ranking Black member of Congress, who is calling on Biden to nominate his preferred pick — U.S. District Judge J. Michelle Childs of South Carolina. That, in turn, has led labor groups to push against her candidacy, pointing to her time working on behalf of employers against worker claims while in private practice.

Among the other potential nominees mentioned most often are Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit and Leondra Kruger, a California Supreme Court justice, both of whom have their own advocates looking to boost their chances.

Several Black female lawmakers interviewed for this article did not criticize Clyburn for his advocacy for Childs, noting he has been promoting her for judgeships for years by making the case she is well respected in his home state and that her background, including being educated at state schools, would give the federal judiciary a needed and different perspective.

But they made clear it is not an approach they plan to take.

“We don’t see any reason to chime up, certainly not before [Biden] comes forward with a nominee considering how many are so, not only qualified, but overqualified. So we have not taken a position yet,” said Del. Eleanor Holmes Norton (D-D.C.), who heads the Congressional Black Caucus’s judicial nominations task force.

Feb. 9

 

leondra kruger

washington post logoWashington Post, Potential Supreme Court nominee faces questions on religious rights case, Robert Barnes, Feb. 9, 2022. Leondra R. Kruger, above, argued 12 cases at the Supreme Court, representing the United States in both Republican and Democratic administrations, and one of them is receiving special scrutiny as President Biden decides whether to nominate her to the bench.

The Supreme Court’s 2012 decision in Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission was a unanimous loss for the Obama administration and a landmark win for religious organizations. The justices for the first time agreed with lower courts and the organizations that the Constitution provides a “ministerial exception” that shields churches and other religious groups from anti-discrimination laws in certain hiring and firing decisions.

Kruger, then a lawyer in the solicitor general’s office and now a justice on the California Supreme Court, failed to win even the vote of her recent boss — Justice Elena Kagan, who was confirmed to the court in 2010 after serving as President Barack Obama’s solicitor general. Kagan termed the government’s argument “amazing,” and not in a good way.

Kruger, 45, is on Biden’s shortlist to replace retiring Justice Stephen G. Breyer, and conservative groups are promoting Kruger’s role in the case as evidence she might not protect religious rights as a Supreme Court justice. Defenders say she was simply a lawyer arguing a case for a client, the messenger for an administration position that found no favor on the court.

If nominated, the Senate will want to know “whether this was her position, or was she simply arguing a position that the solicitor general or possibly EEOC had given her,” said Michael W. McConnell, director of the Stanford Constitutional Law Center. “Having been in that office, I know from experience it could be either way.”

Donald B. Verrilli Jr., the solicitor general at the time and Kruger’s former boss, said it is the latter.

 

Trump Attorneys Rudy Giuliani and Jenna Ellis raising claims of 2020 election fraud at a hearing in Michigan in December 2020.

Trump Attorneys Rudy Giuliani and Jenna Ellis raising claims of 2020 election fraud at a hearing in Michigan in December 2020.

washington post logoWashington Post, Investigation: Mich. prosecutor says Giuliani asked him to hand over voting machines, Jon Swaine, Emma Brown and Jacqueline Alemany, Feb. 9, 2022. A Washington Post examination found that a phone call between President Donald Trump’s legal team and Antrim County prosecutor James Rossiter was part of a behind-the-scenes intervention that helped twist a mistake in the county’s reporting of election results into supposed proof of a vast conspiracy.

In the weeks after the 2020 election, Rudolph W. Giuliani and other legal advisers to President Donald Trump asked a Republican prosecutor in northern Michigan to get his county’s voting machines and pass them to Trump’s team, the prosecutor told The Washington Post.

michigan mapAntrim County prosecutor James Rossiter said in an interview that Giuliani and several colleagues made the request during a telephone call after the county initially misreported its election results. The inaccurate tallies meant that Joe Biden appeared to have beaten Trump by 3,000 votes in a Republican stronghold, an error that soon placed Antrim at the center of false claims by Trump that the election had been stolen.

Rossiter said he declined. “I said, ‘I can’t just say: give them here.’ We don’t have that magical power to just demand things as prosecutors. You need probable cause.” Even if he had had sufficient grounds to take the machines as evidence, Rossiter said, he could not have released them to outsiders or a party with an interest in the matter.

Legal scholars said it was unusual and inappropriate for a president’s representatives to make such a request of a local prosecutor. “I never expected in my life I’d get a call like this,” Rossiter said.

Giuliani declined to comment in response to questions from The Post, his attorney said.

Giuliani’s team called Rossiter around Nov. 20, 2020, Rossiter said, as it worked to overturn Trump’s defeat to Biden. The direct appeal to a local law enforcement official was part of a broader effort by Trump’s allies to access voting machines in an attempt to prove that the election had been stolen. That effort extended to a recently disclosed draft executive order for Trump’s signature to have National Guard troops seize machines across the nation.

washington post logoWashington Post, Covid deaths highest in a year as omicron hits unvaccinated and elderly, Fenit Nirappil and Dan Keating, Feb. 9, 2022 (print ed.). Omicron has been particularly lethal to people over 75, the unvaccinated and the medically vulnerable, according to doctors and public health officials.

Though considered milder than other coronavirus variants, omicron has infected so many people that it has driven the number of daily deaths beyond where it was last spring, before vaccines were widely available, according to Washington Post data.

Omicron has been particularly lethal to people over 75, the unvaccinated and the medically vulnerable, according to doctors and public health officials. The soaring death toll also illustrates why experts pleaded with the public to beware of the highly contagious variant even though it is less virulent than others.

“That feels quite jarring to people who may have assumed omicron is generally on a per-case level less severe and given the fact we have vaccinated at least some portion of the country,” said Jennifer Nuzzo, an epidemiologist at the Johns Hopkins Bloomberg School of Public Health. “Even if on a per-case basis fewer people develop severe illness and die, when you apply a small percentage to a very large number, you get a substantial number.”

Yet the seven-day average of deaths during the omicron surge has reached 2,600 in recent days, climbing past the late September peak of about 2,000 average daily fatalities during the surge of the more dangerous delta variant, according to Post tracking. The ranks of hospitalized patients with covid-19 reached record highs in January. Coronavirus deaths lag hospitalizations.

 

Trump counsel Rudy Giuliani leads a news conference at Republican National Committee headquarters in Washington, DC on Nov. 19, 2020.

Trump counsel Rudy Giuliani leads a news conference at Republican National Committee headquarters in Washington, DC on Nov. 19, 2020. At left above is attorney Sidney Powell, whom the Trump White House announced earlier in November as one of its lawyers before firing.

washington post logoWashington Post, Analysis: Sidney Powell: ‘Perhaps’ the Kraken wasn’t real after all, Aaron Blake, Feb. 9, 2022 (print ed.). The Kraken is still backtrackin.’

The many dubious and false claims of voter fraud and irregularities made by lawyers aligned with Donald Trump after the 2020 election have forced something of a legal reckoning — a legal reckoning that continues apace. And perhaps nobody exemplifies that like former Trump lawyer Sidney Powell, who has now been forced on multiple occasions to acknowledge that the Kraken wasn’t what it was cracked up to be.

During the period between Election Day and Joe Biden’s win being finalized, Powell made all manner of claims about massive voter fraud. Not only that, she said she had proof — proof that was always seemingly right around the corner.

“President Trump won by a landslide,” she said at that infamous November 2020 news conference at the Republican National Committee. “We are going to prove it.”

“I’m going to release the Kraken,” she said around the same time.

Since then, though, Powell has found herself vulnerable to both financial penalties (being sued by voting machine companies Smartmatic and Dominion) and legal penalties, possibly including disbarment. And she has offered a very different take on the evidence she had.

In response to the voting-machine lawsuit, Powell’s legal team in March argued that “reasonable people would not accept such statements as fact” but, rather, merely as claims to be evaluated in court. She said she was merely serving as an advocate for Trump. She even said that her legal opponents calling her claims “wild accusations” and “outlandish” only reinforced that the claims were not to be taken at face value.

Now, Powell has filed another such document, in response to an effort to sanction her professionally, which a federal judge moved along last summer in a scathing ruling. And again, the big takeaway is that she’s backing off.

The big line, as first spotlighted by Adam Klasfeld, is when Powell and another Trump-aligned lawyer say the claims made were only “perhaps” true — but that they were legitimate because lots of people believed them.

“Millions of Americans believe the central contentions of the complaint to be true,” the filing says, “and perhaps they are.”

The filing also notes that “dozens of laws have been enacted by state legislatures in response to concerns similar to those raised in the complaint.”

That latter statement is most certainly true. But, as with the GOP push for rewriting such election laws, there’s a bit of a chicken-and-egg question. Republicans have indeed often justified those new laws by pointing to the perception of voter fraud and other irregularities, rather than actual proof. But that perception itself owes in large part to the efforts of Powell and her ilk. Polls suggest such claims caught on with a majority of Republicans despite the utter lack of substantiation or wins in court.

 

guy wesley reffitt via FBI 1

ny times logoNew York Times, Government Reveals Trove of Evidence in First Jan. 6 Trial, Alan Feuer, Feb. 9, 2022 (print ed.). With a Texas man set to go on trial this month, prosecutors released a detailed list of their witnesses and evidence, including testimony from the defendant’s two teenage children.

Prosecutors have provided a revealing glimpse of their strategy for the first trial stemming from the attack on the Capitol, unveiling an inventory of the extensive evidence they intend to introduce, including surveillance videos, police communications, text messages, geolocation data and testimony from a Secret Service agent and the defendant’s own children.

The defendant in the trial, set to begin on Feb. 28, is Guy Wesley Reffitt, above, an oil industry worker who prosecutors say was a member of the Texas Three Percenters, a far-right group connected to the gun rights movement. Mr. Reffitt stands accused of storming the Capitol with a pistol at his waist. The charges against him include interfering with law enforcement officers during a civil disorder and obstructing Congress’s duty to certify the results of the 2020 election.

The trial — the earliest of several related to the events of Jan. 6, 2021, scheduled this year — will mark a major turning point in the Justice Department’s vast investigation of the Capitol attack. About 200 people have pleaded guilty so far to charges connected to the violent assault that disrupted the peaceful transfer of power. Of those, nearly 90 have already been sentenced.

The Reffitt trial, which will take place in Federal District Court in Washington, is expected to be the first time that prosecutors will publicly offer evidence of the allegations they have made against scores of other similar defendants. Under what is sure to be enormous scrutiny, the prosecutors will have to demonstrate that law enforcement officers were “adversely affected” by the riot and that Mr. Reffitt was part of a pro-Trump mob that illegally stopped the work of Congress.

To that end, the prosecutors have amassed an expansive array of witnesses and evidence, according to the list they filed Monday night. While much of the information they plan to introduce had been revealed in previous court papers and hearings, some of it was new, suggesting that they may have similarly undisclosed evidence waiting in the wings for future trials.

Mr. Reffitt’s lawyer, William L. Welch III, did not respond to a request for comment on the government’s evidence, but his client has openly pushed back against accusations that he took part in anything untoward at the Capitol on Jan. 6. In a letter obtained by ProPublica last spring, Mr. Reffitt wrote of the attack, “There was no insurrection, no conspiracy, no sinister plan and no reason to think otherwise.”

While Mr. Reffitt’s trial is certain to attract attention for being the first, other larger and more complicated trials are tentatively scheduled for later in the year. Four leaders of the far-right nationalist group the Proud Boys are set to go on trial in Washington in May. And in July, prosecutors plan to try 11 members of the Oath Keepers militia — including its leader Stewart Rhodes — on charges of seditious conspiracy.

The Reffitt trial is likely to begin with an overview of the tumult on Jan. 6 offered by an officer who worked that day at the U.S. Capitol Police’s command center, overseeing a video surveillance system, and radio and phone communications, prosecutors said. The officer will “explain the progression of the riot” through a compilation of surveillance videos from both inside and outside the building and will show the jury a separate video of former Vice President Mike Pence’s motorcade leaving the east plaza of the Capitol at 1:57 p.m.

Three other Capitol officers are scheduled to testify about their direct interactions with Mr. Reffitt and others members of the mob, prosecutors said. These officers are expected to describe their experiences trying to control the crowd by firing pepper balls and other projectiles and to give accounts of failing to subdue Mr. Reffitt and his fellow rioters with chemical spray.

Feb. 7

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

washington post logoWashington Post, Supreme Court stops lower court order requiring Alabama to draw a new congressional district favorable to Black residents, Robert Barnes, Feb. 7, 2022. The Supreme Court on Monday put on hold a lower court’s order that Alabama must create a second congressional district favorable to Black voters, over the objections of Chief Justice John G. Roberts Jr. and the court’s three liberals.

The court’s most consistently conservative justices put on hold a decision of a special panel of three federal judges that threw out Alabama’s new congressional map Jan. 24. That map had continued to draw only one of the state’s seven congressional districts to have a majority of Black voters.

Dissenting Justice Elena Kagan called the court’s order “a disservice to Black Alabamians who under [Supreme Court] precedent have had their electoral power diminished — in violation of a law this Court once knew to buttress all of American democracy.”

The unanimous lower court panel noted that over the past decade, the number of White Alabamians had declined while the state’s Black population grew, and now accounts for 27 percent of the state’s overall population. That means the state’s map should contain two districts with either Black majorities or “in which Black voters otherwise have an opportunity” to elect representatives they favor, the panel said.

“Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress,” the panel wrote in a 225-page ruling, finding challengers of the map were “substantially likely” to prevail on claims that the new maps violate the Voting Rights Act.

“We find that the plaintiffs will suffer an irreparable harm if they must vote in the 2022 congressional elections based on a redistricting plan that violates federal law,” the ruling stated.

The creation of a second congressional district favorable to minorities would be a boon for Democrats, who hold only one district.

The panel was composed of Judge Stanley Marcus from the U.S. Court of Appeals for the 11th Circuit, nominated by President Bill Clinton, and District Court Judges Anna M. Manasco and Terry F. Moorer, both chosen by President Donald Trump.

The case is the first for current Supreme Court justices to consider how to apply the Voting Rights Act to racial gerrymandering. In 2019, the court said federal courts had no role in policing partisan gerrymandering.

The judges delayed the qualifying period for congressional elections and gave the Alabama legislature two weeks to draw a new map. The judges said it would not be difficult because plaintiffs had already submitted nearly a dozen maps that showed that it could be done.

Alabama Attorney General Steve Marshall (R) told the Supreme Court that the lower court got it wrong.

“The court-ordered redraw marks a radical change from decades of Alabama’s congressional plans,” Marshall wrote. “It will result in a map that can be drawn only by placing race first above race-neutral districting criteria, sorting and splitting voters across the State on the basis of race alone.”

Alabama’s Republican members of Congress running for reelection also asked the Supreme Court to step in.

“Alabama’s long-standing single majority-minority district comes as no surprise,” they wrote. “It is a consequence not of nefarious motives, but of dispersion and intermingling of state residents regardless of race.”

Marshall said the only way to create a second district majority-minority district would be to “split Gulf-area residents along racial lines, connecting black voters in urban Mobile with black voters in rural counties stretching more than 200 miles to the east.”

Alabama’s lone majority-Black district was also created by federal court order, decades ago, and has always been represented by a Black Democrat, currently Rep. Terri A. Sewell.

The challengers to the plan passed by the legislature and signed by Gov. Kay Ivey (R) include a state senator and the Alabama NAACP. They contend that Sewell’s district had been packed with more Black voters than necessary to ensure a minority candidate would win, and that the rest of the state’s Black voters have been spread across other congressional districts in numbers too small to make a difference.

In their filing, they say they have fulfilled Supreme Court precedent by “showing that it is possible to draw an additional majority-Black district in Alabama consistent with traditional districting principles.”

They said drawing such districts does not require race “to predominate over other factors. Alabama’s contrary argument seeks a wholesale revision” of Voting Rights Act precedent.

The case is Merrill v. Milligan.

Feb. 6

 leondra kruger

ny times logoNew York Times, California’s Supreme Court Was Split. Leondra Kruger Found the Center, Shawn Hubler and Katie Benner, Feb. 6, 2022. Known for her ‘elegant’ mind, the moderate judge, now on President Biden’s short list of potential high court nominees, could be a mediating force in Washington.

In 2014, when then-Governor Jerry Brown nominated Leondra R. Kruger, shown above, to the California Supreme Court, the immediate reaction in her home state was: Leondra who?

She was just 38. While she was born and brought up in California, her career had been in Washington, D.C., as a government lawyer. A retired veteran of the state appellate bench complained that her nomination was a “slap in the face” because she had “never been a judge at any level.” Willie Brown, a former mayor of San Francisco, asked in The San Francisco Chronicle “why the governor had to go all the way to the East Coast” for a new justice.

“Were there no qualified African Americans in California?” wrote the mayor, who is African American.

supreme court graphicWithin weeks, however, Justice Kruger was unanimously confirmed; the hearing was so deferential and swift that the court’s chief justice was still asking who was in favor when the confirmation panel — which included the state’s then-attorney general, Kamala Harris — interrupted with “aye” votes. Eight years later, she has forged a reputation as one of the most influential voices on the highest court in the nation’s most populous state.

It is an achievement that now could prove as consequential as any Beltway credential. If selected from President Biden’s short list of candidates to succeed Justice Stephen G. Breyer on the U.S. Supreme Court, she could become not only the first Black female justice, but also a mediating force on an institution notable for its polarization.

Senate Republican leaders have warned that they will oppose “radical left” nominees. But jurists across the political spectrum say that, like the president, Justice Kruger’s hallmark is moderation.

“She’s a consensus builder,” said Tani Cantil-Sakauye, the chief justice of the California Supreme Court, who was appointed in 2011 by a Republican governor, Arnold Schwarzenegger. “Beyond her obviously glittering Ivy League education and her brilliant mind is this incredibly humble, self-effacing personality who is very persuasive in bringing groups together on different legal arcs.”

That instinct for reasoned persuasion has made Justice Kruger, 45, a powerful backstage force on a split court whose majority has shifted from right to left during her tenure. Since her arrival, California’s high court — notorious as recently as a decade ago for its partisanship and division — has voted unanimously in nearly nine out of 10 decisions, a rate that far outstrips the U.S. Supreme Court’s unanimity.

David A. Carrillo, executive director of the California Constitution Center at the University of California, Berkeley, said Justice Kruger has been “a key factor” in that shift, working behind the scenes to craft decisions that keep to the letter of the law and transcend ideological viewpoints. In a recently published analysis, Mr. Carrillo found that she rarely dissents, “and when she does it’s usually to argue that the court has gone too far.”

Her opinions on occasion have evoked sharp dissents from liberal colleagues. In 2018, for instance, she authored a 4-3 ruling upholding a state requirement that felony arrestees — even before they are convicted — surrender DNA samples, a law that dissenting liberal justices decried as an unconstitutional “biological dragnet.”

Joined by the court’s Republican appointees, she relied on U.S. Supreme Court precedent to determine that a DNA swab was legitimately taken from an accused arsonist, but deliberately left open the larger constitutional question. The dissenting justices argued the court should have been bolder in protecting privacy rights given California’s own laws, with one deriding the majority opinion as “in tension even with its own logic.”

Another dissent warned that the ruling meant “it is not that far a step for the state to collect and retain DNA from law-abiding people in general.”

But Justice Kruger’s defenders note that, by drawing the decision narrowly, she arguably prevented the U.S. Supreme Court from subsequently overturning the ruling. Many liberal jurists in the state are still smarting.

Feb. 5

 

cyril wecht oswald jfk ny post composite

Dr. Cyril Wecht was the first non-governmental forensic pathologist to gain access to the National Archives to examine the assassination materials on JFK in 1972. He discovered that Kennedy's brain was missing as well as many shocking lapses in the official probe into his death. NY Post photo composite

New York Post, JFK assassination expert: Lee Harvey Oswald lone gunman theory is ‘bulls–t,’ Heather Robinson, Feb. 5, 2022. Dr. Cyril Wecht was the first non-governmental forensic pathologist to gain access to the National Archives to examine the assassination materials on JFK in 1972. He discovered that Kennedy’s brain was missing as well as many shocking lapses in the official probe into his death.

Dr. Cyril Wecht distrusts the US government. And he’s proud of it.

The forensic pathologist — who declared in 1978 that Lee Harvey Oswald did not act alone in assassinating President John F. Kennedy — is now 90 and still sticking to his story.

Wecht’s latest book, The JFK Assassination Dissected (Exposit Books), summarizes his six decades of research into the subject, and pokes cyril wecht jfk assassination dissectedholes in the conclusion made by the seven-man Warren Commission that Oswald, without any help, shot and killed Kennedy when his motorcade drove past the Texas School Book Depository in Dallas on Nov. 22, 1963.

“Young people are still being taught that the 35th president was murdered by a lone gunman, and that is simply bulls–t,” Wecht boomed during an interview at his modest office in downtown Pittsburgh last month.

Nearly 60 years ago, the commission concluded that Oswald killed Kennedy because he was a disaffected, profoundly maladjusted loner with communist sympathies. But Wecht still believes the shooter may have been a hired gun committing murder for the CIA.

Oswald “had almost certainly been a CIA agent of some kind,” says Wecht, but the directive to kill may have come from higher up. Allen Dulles, director of the CIA from 1953 to 1961, had overseen the disastrous Bay of Pigs invasion to oust Cuban dictator Fidel Castro and had reason to be disgruntled. Dulles also ended up in prime position to participate in a coverup, Wecht conjectured.

“Kennedy had fired Allen Dulles because he was really pissed off about what the CIA was doing,” said Wecht. “Then who gets appointed to the Warren Commission? Dulles. It stinks to high heaven.”

Tanned, vigorous and dressed sharply in a black jacket and red necktie, Wecht said he wrote his book now for the sake of the truth — and his advancing age.

“I don’t intend to live forever, just for a long time,” said Wecht, who has a wife, Sigrid Wecht, and four children. “I felt I wanted to lay out all the things I’ve experienced and done and the people I’ve met, and it was time. I’ve been working on the book for six years.”

The former coroner of Allegheny County, Pa., Wecht is both a trained lawyer and doctor who has conducted more than 17,000 autopsies and also provided expert testimony on high-profile cases including the deaths of Robert F. Kennedy, Martin Luther King Jr., Elvis Presley, JonBenet Ramsey and Laci Peterson.

The first non-governmental forensic pathologist to gain access to the National Archives to examine the assassination materials in 1972, Wecht discovered and exposed the ghastly fact that the 35th president’s brain had vanished.

“As we sit and talk today, the president’s brain remains missing. Unaccounted for,” he said.

Interest in the assassination — and speculation about a conspiracy — has simmered for decades, gaining steam after Oliver Stone’s 1991 movie “JFK” disputed the belief that Oswald acted alone. (Wecht consulted on Stone’s film and dedicated a chapter to his experience on the movie set. Stone, in turn, wrote the book’s foreword).

In 1992, after a public outcry, Congress passed the JFK Assassination Records Collection Act requiring release of all JFK assassination files by 2017. The deadline has come and gone with US presidents citing national security concerns Biden has scheduled release of the final documents for December 2022.

Wecht is dubious that all the relevant documents will be released but predicts that if they are, it could be revelatory.

“There might be something supporting more than one gunman, evidence of witness manipulation, or failure to call key witnesses,” he said.

In the decades since the assassination, most Americans have continued to believe that Oswald did not act alone. In 1976, one year after the public release of the Zapruder film, a 1963 home movie made by Dallas clothier Abraham Zapruder capturing the moment JFK was shot, 81 percent said they believed more than one gunman was involved.

By 2017, that figure was still high at 60 percent.

‘Young people are still being taught the 35th president was murdered by a lone gunman. That is simply bulls–t.’

Wecht’s book contains never-before published details of his meetings with Oswald’s widow, Marina, left, who, although unhappily married to marina oswald country styleOswald, validated her husband’s claim that he was “just a patsy,” as well as of Wecht’s meeting with George de Mohrenschildt, a shadowy CIA-connected figure who befriended the Oswalds prior to the assassination and, before committing suicide himself in 1977, corroborated Marina’s assessment of Oswald as a fall guy.

The book describes the defection of Oswald, a trained marksman, Marine, and fluent Russian speaker, to the USSR for two-and-a-half years, and his trouble-free return to the US with bride Marina, niece of a high-ranking KGB officer, at the height of the Cold War. (The implication is that Oswald had friends in high places).

After a 10-month investigation, the Warren Commission concluded that Oswald fired three times. One shot missed, another hit Kennedy in the back, and the third hit him in the head. Rather than explain the sequence of the hits, the commission presented three slightly different scenarios, but each scenario ended with the conclusion that just one gunman killed the president.

In 1978, Wecht, as a member of the forensic pathology panel assembled by the House Select Committee on Assassinations (HSCA), testified in favor of a second gunman. He was the lone dissenter.

“I really stood alone,” he said.

For one, the gunshot wound in Kennedy’s back — which the Warren Commission said had an upward trajectory — couldn’t have been caused by Oswald as the sole assassin firing from above, Wecht said.

“Under the single bullet theory, Oswald is the sole assassin, he’s firing from the sixth-floor window of the Texas School Book Depository building, so the bullet is moving from up, downward, right? So how the hell could it go upward?”

Wecht believes an additional shot, from a second gunman, was “fired from the front, behind the picket fence on the grassy knoll” and that “two bullets hit Kennedy . . . one from the rear, one from the front.”

He also recounts that the chief medical examiner for the Dallas Coroner’s office, Dr. Earl Rose, whose office was located at Parkland Memorial Hospital in Dallas where JFK received treatment and died, was manhandled by the Secret Service to prevent him from conducting the autopsy.

“The agent . . . put his arms under Rose’s armpits, lifted him into the air, and set him down gently against a wall. It wasn’t an action designed to hurt Dr. Rose but to show him who was boss,” Wecht writes.

“They swore, they put Dr. Rose up against the wall,” he added.

Instead, JFK’s corpse was flown to Washington, DC, where an autopsy was done by two physicians, neither of whom was board certified in forensic pathology, and neither of whom “had ever done a gunshot wound autopsy in their entire careers,” he said.

The autopsy materials, “including clothing, X-rays, bullet,” “amazingly, belonged to Jacqueline Kennedy,” who donated them to the National Archives in Washington, DC, with the proviso that nobody could see those effects for 75 years, except that after five years, a “recognized expert in the field of pathology with a serious historic purpose” could apply to examine them, Wecht said.

Wecht fought to fill that slot and was given permission to conduct the probe in 1972. That’s when he discovered that JFK’s brain, despite being listed in the inventory of assassination materials, was “no longer available.”

“If they had dissected the brain, they would’ve seen there were two bullets that hit Kennedy in the brain, one from the rear, and one from the front,” said Wecht. His theory that the president was hit in the head twice is “based on witness testimony, the Zapruder film, and medical evidence.”

Critics argue that professionals like Wecht questioning the Warren Commission’s findings have contributed to a general erosion of trust in authority and spawned an industry of conspiracy-theorizing, prompting potentially harmful doubts about everything from vaccines to elections.

But Wecht doesn’t mind the term “conspiracy theorist.”

“I am amused by the audacity and hypocrisy of people calling me a conspiratorialist,” he said. “I have always had a majority of Americans on my side. How many things are there that maintain a majority consensus?

“Go back and talk with older people, before Watergate and Vietnam,” he says. “Pretty much what the government said, that was it, you did not question.

“Go back and talk with older people, before Watergate and Vietnam,” he says. “Pretty much what the government said, that was it, you did not question.

“We are still learning things the government covered up.”

Feb. 4

 washington post logoWashington Post, Gorsuch to speak at Federalist Society; media barred, Mariana Alfaro, Feb. 4, 2022. The Supreme Court justice’s headline appearance at the conservative group event raises concerns of partisanship.

Justice Neil M. Gorsuch is speaking to the conservative Federalist Society as part of a political lineup of former vice president Mike Pence, Florida Gov. Ron DeSantis (R) and Donald Trump’s onetime press secretary, an appearance that comes as his fellow justices repeatedly dismiss criticism that the Supreme Court is partisan.

neil gorsuch headshotWhat Gorsuch, right, says Friday night will only be known to the organization’s guests. The media is barred from listening to his remarks.

Gorsuch’s participation in the weekend-long event comes in the midst of a monumental time for the court as it could roll back or overturn Roe v. Wade, the 1973 decision that guarantees a woman’s right to abortion, in the coming months. The court also could be asked to rule on issues related to the House committee investigation of the Jan. 6 attack on the Capitol by a pro-Trump mob — with Pence a potential witness.

It is unclear whether Gorsuch will be paid by the group for his appearance. Neither the Federalist Society nor the Supreme Court responded to requests for comment.

The Federalist Society is an influential nonprofit organization for conservative and libertarian lawyers that served as a pipeline for former president Donald Trump’s judicial choices, including Gorsuch. The justice will be addressing the Florida chapter at Disney’s Yacht and Beach Club Resort in Lake Buena Vista, Fla.

The conference, to be held Friday and Saturday, will feature a keynote speech from Pence, who is a possible 2024 presidential candidate; and a conversation between DeSantis, who is seeking reelection and also mentioned as a White House hopeful, and Trump’s White House press secretary Kayleigh McEnany.

washington post logoWashington Post, Opinion: Republicans’ animus toward Biden’s court pledge shows they’re not veiling racism, Eugene Robinson, right, Feb. 4, 2022 (print eugene robinson headshot Customed.). If the Republican Party has any sort of platform these days, it appears to involve stoking White grievance and opposing even modest steps to foster diversity.

That’s not a partisan argument; I’m just noting what Sen. Ted Cruz (R-Tex.) and a few of his colleagues are saying about President Biden’s promise to nominate a Black woman to the Supreme Court. On his podcast, “Verdict With Ted Cruz,” the senator recently called Biden’s pledge “offensive.”

“The fact that he’s willing to make a promise at the outset, that it must be a Black woman, I got to say that’s offensive,” Cruz said. “You know, Black women are, what, 6 percent of the U.S. population? He’s saying to 94 percent of Americans, ‘I don’t give a damn about you. You are ineligible.’”

Cruz went on to argue that promising to nominate a Black woman was, somehow, “actually an insult to Black women.” I’d like to see what data he’s relying on to support that claim. I happen to know quite a few Black women — my wife, my sister, lots of other family members, many friends, co-workers and acquaintances — and not a single one has expressed to me the slightest sense of being insulted. I’ve heard reactions of joy and pride but not a scintilla of outrage.

Eventually, Cruz got to his real point: He claimed Biden is saying that “if you’re a White guy, tough luck. If you’re a White woman, tough luck. You don’t qualify.”

And there you have it. Republicans no longer accidentally say the quiet part out loud; they shout it from the rooftops — or at least preach it on their podcasts.

Feb. 3

 

supreme court resized 2021

ny times logoNew York Times, Opinion: The Most Important Thing Missing From the Supreme Court Today, Adrian Vermeule, Feb. 3, 2022.  Justice Stephen Breyer last week announced that he will retire at the end of this Supreme Court term. If the recent past is any guide, whoever is nominated to replace him will face a barrage of attacks from political opponents.

Every Supreme Court nomination is now a battleground, featuring slander and even angry demonstrations, as when protesters of Justice Brett Kavanaugh’s nomination invaded the Senate building and attacked the very doors of the court.

The great promise of our legal system as understood by many modern theorists — that law can create a framework to reconcile plural interests in a diverse society — has manifestly failed. Instead the law has become ever more politically contested and bitterly divisive; the tolerance celebrated by the proponents of liberalism appears to be more science fiction than fact. Something has gone badly wrong: It is unclear, in America in 2022, what the point of the law is, what higher ends it should strive to attain. We have forgotten what law is for.

Today’s reigning theories of law are exhausted. On one side, legal progressivism shamelessly instrumentalizes the law in the service of a particular vision of social justice centered on identity politics and libertine social and sexual mores. This relentless crusade undermines the family, traditional morality and the well-being of the citizenry — especially those who lack the resources to buffer themselves against societal disintegration.

On the other side, originalism, which pretends to separate law from justice, rests on an invented tradition that has projected itself back into the past. As the historian Jonathan Gienapp puts it, originalists’ understanding of the Constitution is “anachronistic, a species of modern constitutional thinking that they unwittingly and uncritically impose on the eighteenth century.” Supposedly originalist judges constantly appeal, explicitly or implicitly, to contemporary view of justice to fix the meaning of general or abstract texts (like “due process of law” or “freedom of speech”) or otherwise to resolve hard cases.

Neither progressivism nor originalism has proved capable of transcending partisanship to produce solidarity and community. Every June, the Supreme Court breaks down largely along ideological lines — precisely in the great cases that attract the most public attention and concern, and that inevitably symbolize our national commitments. We lack an overarching legal framework to help all Americans argue over principles while still retaining the sense that they are participating in a common enterprise.

What’s missing from our law today is an emphasis on the common good, a concept that from the founding era onward was central to the American legal tradition, embodied in the references to the “general welfare” in both the preamble to the Constitution and its text.

The common good is no abstract idea; its absence is keenly felt today. In the past few decades, Americans have discovered that individuals and families cannot flourish if the whole community is fundamentally unhealthy, torn apart by conflict, lawlessness, poverty, pollution, sickness, and despair. Gated residences, private schools and Uber have not sufficed to immunize even the affluent against the consequences of living in a decaying, fractured and embittered polity. No family or civic association is an island, and the health of civic society and culture are themselves dependent upon the health of the constitutional order.

American judges in the classical legal tradition applied the common good with a healthy measure of deference to the reasonable decisions of public authorities.

Adrian Vermeule is the Ralph S. Tyler, Jr., professor of constitutional law at Harvard Law School and the author of the forthcoming book “Common Good Constitutionalism.”

Feb. 1

 

leondra kruger

washington post logoWashington Post, Opinion: The 11 likeliest people to get Biden’s Supreme Court nomination, The Ranking Committee, Feb. 1, 2022 (print ed.). At last, President Biden has a chance to atone for his mistreatment of Anita Hill. Three decades after Justice Clarence Thomas’s confirmation hearings, the president could put the first African American woman on the Supreme Court. He vowed Thursday to keep his campaign promise to nominate a Black woman after Justice Stephen G. Breyer, 83, announced plans to retire when the court’s term ends this summer.

Biden, 79, is an old man in a young country. Of the 115 justices to serve on the Supreme Court, 16 have been confirmed since Biden was elected to the Senate half a century ago. Assuming Democrats can confirm his nominee through a 50-50 Senate, Biden is poised to select just the third African American and sixth woman ever to serve.

The president hopes to announce his choice by the end of February. Sadly, relatively few Black women serve as federal appellate j michelle childs ap charles dharapakjudges, which has been the traditional pipeline for justices. (Biden has nominated eight Black women to circuit courts since taking office, and five have been confirmed.) “But he does not believe that is a prerequisite,” White House press secretary Jen Psaki said Thursday.

ketanji brown jackson robeBecause this nominee will not tip the balance of power on a court that conservatives dominate 6-to-3, the confirmation fight might not be as scorched-earth as we’ve come to expect. But this is an election year, and control of the Senate is on the line in the midterms. Biden wants to galvanize his base, but he does not want to pick someone who won’t get the backing of moderate senators in his own party from West Virginia and Arizona.

With all that in mind, we asked some of our pundits to rank who they think Biden is most likely to select. The favorites:

  1. D.C. Circuit Judge Ketanji Brown Jackson, above right
  2. California Supreme Court Justice Leondra Kruger, above center
  3. U.S. District Judge J. Michelle Childs, shown above left in an AP photo
  4. 7th Circuit Judge Candace Rae Jackson-Akiwumi
  5. Delaware Supreme Court Justice Tamika Montgomery-Reeves
  6. NAACP Legal Defense and Educational Fund President Sherrilyn Ifill
  7. Two more faves of the Senate
  8. Three wild cards

Axios, Charted: Souring on SCOTUS, Staff Report, Feb. 2, 2022. Americans' disapproval of the Supreme Court has been rising, with 44% now having an unfavorable opinion, according to new survey results from Pew Research Center reviewed by Axios' Stef Kight.

Why it matters: The shift comes as the president weighs a replacement for Justice Stephen Breyer, who announced his axios logoretirement last week, and following partisan fights about the seatings of Justices Brett Kavanaugh and Amy Coney Barrett.

The percentage of Americans who view the court favorably has fallen from 69% in August 2019 to 54% last month.

By the numbers: SCOTUS favorability plummeted among Democrats and Democratic-leaners in recent years — understandably, as former President Trump named three conservative judges to the bench: Kavanaugh, Barrett and Justice Neil Gorsuch.

Democrats are now more likely to view the Supreme Court unfavorably than favorably, according to the polling.
But Republican discontent has been on the rise, too.
More than one-in-three of American adults who are or lean Republican said they view the high court unfavorably — up from just 14% in August 2019.

Related Recent Headlines

 

January 2022 Update

Jan;. 31

 

supreme court building

washington post logoWashington Post, Critics say Ginni Thomas’s activism is a Supreme Court conflict. Under court rules, only her husband can decide if that’s true, Michael Kranish, Jan. 31, 2022. Ginni Thomas’s name stood out among the signatories of a December letter from conservative leaders, which blasted the work of the House committee investigating the Jan. 6 insurrection as “overtly partisan political persecution.”

One month later, her husband, Supreme Court Justice Clarence Thomas took part in a case crucial to the same committee’s work: former president Donald Trump’s request to block the committee from getting White House records that were ordered released by President Biden and two lower courts.

virginia thomas amazonThomas was the only justice to say he would grant Trump’s request. His wife is shown at right in a file photo.

That vote has reignited fury among Justice Thomas’s critics, who say it illustrates a gaping hole in the court’s rules: Justices essentially decide for themselves whether they have a conflict of interest, and Thomas has rarely made such a choice in his three decades on the court.

“I absolutely do believe that Clarence Thomas should have recused from the Jan. 6 case,” said Gabe Roth, executive director of Fix the Court, a nonpartisan advocacy group, who called the Supreme Court “the most powerful, least accountable, institution in Washington.”

While the Supreme Court is supposed to operate under regulations guiding all federal judges, including a requirement that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” there’s no procedure to enforce that rule. Each justice can decide whether to recuse, and there is no way to appeal a Supreme Court member’s failure to do so.

Unlike in lower courts, there is no other judge that can step in, and thus a recusal by one justice would mean considering the case with only eight justices, increasing the chance it could not be resolved.

cbs news logoCBS News, Analysis: Biden weighing more than a dozen candidates for Supreme Court vacancy, Melissa Quinn, Jan. 31, 2022. President Biden is considering more than a dozen candidates to succeed retiring Justice Stephen Breyer on the Supreme Court, a source familiar with the process told CBS News, with a pool of prospective nominees that ranges from the federal bench to academia.

The White House confirmed last week that U.S. District Judge Michelle Childs is among the women Mr. Biden is weighing as his nominee to the high court. Judge Ketanji Brown Jackson, who sits on the federal appeals court in the District of Columbia, and California Supreme Court Justice Leondra Kruger are also among the names floated to fill the forthcoming vacancy.

While the list is not exhaustive, the source said the three are joined as possible candidates by:

  • Judge Holly Thomas of the 9th Circuit
  • Judge Tiffany Cunningham of the Federal Circuit
  • Judge Candace Jackson-Akiwumi of the 7th Circuit
  • Judge Eunice Lee of the 2nd Circuit
  • Judge Wilhelmina Wright of the federal district court in Minnesota
  • Nancy Abudu, Mr. Biden's nominee to the 11th Circuit
  • Arianna Freeman, Mr. Biden's nominee to the 3rd Circuit
  • North Carolina Supreme Court Justice Anita Earls
  • Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense Fund
  • Melissa Murray, New York University law professor

Mr. Biden will meet with Senate Judiciary Committee Chairman Dick Durbin of Illinois and its top Republican Senator Chuck Grassley of Iowa at the White House on Tuesday "to consult with them and hear their advice about this vacancy," White House press secretary Jen Psaki said on Monday.

washington post logoWashington Post, Opinion: The 11 likeliest people to get Biden’s Supreme Court nomination, The Ranking Committee, Jan. 31, 2022. At last, President Biden has a chance to atone for his mistreatment of Anita Hill. Three decades after Justice Clarence Thomas’s confirmation hearings, the president could put the first African American woman on the Supreme Court. He vowed Thursday to keep his campaign promise to nominate a Black woman after Justice Stephen G. Breyer, 83, announced plans to retire when the court’s term ends this summer.

Biden, 79, is an old man in a young country. Of the 115 justices to serve on the Supreme Court, 16 have been confirmed since Biden was elected to the Senate half a century ago. Assuming Democrats can confirm his nominee through a 50-50 Senate, Biden is poised to select just the third African American and sixth woman ever to serve.

The president hopes to announce his choice by the end of February. Sadly, relatively few Black women serve as federal appellate judges, which has been the traditional pipeline for justices. (Biden has nominated eight Black women to circuit courts since taking office, and five have been confirmed.) “But he does not believe that is a prerequisite,” White House press secretary Jen Psaki said Thursday.

Because this nominee will not tip the balance of power on a court that conservatives dominate 6-to-3, the confirmation fight might not be as scorched-earth as we’ve come to expect. But this is an election year, and control of the Senate is on the line in the midterms. Biden wants to galvanize his base, but he does not want to pick someone who won’t get the backing of moderate senators in his own party from West Virginia and Arizona.

With all that in mind, we asked some of our pundits to rank who they think Biden is most likely to select. The favorites:

  1. D.C. Circuit Judge Ketanji Brown Jackson
  2. California Supreme Court Justice Leondra Kruger
  3. U.S. District Judge J. Michelle Childs
  4. 7th Circuit Judge Candace Rae Jackson-Akiwumi
  5. Delaware Supreme Court Justice Tamika Montgomery-Reeves
  6. NAACP Legal Defense and Educational Fund President Sherrilyn Ifill
  7. Two more faves of the Senate
  8. Three wild cards

ap logoAssociated Press, White House: No ‘gaming the system’ on Supreme Court pick, Colleen Long and Mary Clar Jalonick, Jan. 31, 2022. President Joe Biden will meet with Senate Judiciary Committee leaders on Tuesday to discuss the upcoming U.S. Supreme Court vacancy and the president’s promise to nominate a Black woman to the high court. Aides said Biden’s list of potential candidates is longer than three.

The White House also pushed back Monday on the idea that the president would be open to “gaming the system” by choosing a nominee solely based on her likelihood of garnering bipartisan support.

Judiciary Chairman Dick Durbin, D-Ill., and ranking minority member Chuck Grassley, R-Iowa, will meet with Biden at the White House to go over potential nominees to replace Justice Stephen Breyer, who announced his retirement last week. Biden himself served as head of the Judiciary Committee when he was a senator and presided over the confirmations of six high court picks, including Breyer.

“He’s steeped in this process,” White House Press Secretary Jen Psaki said Monday, “and looks forward to advice from members of both parties on the Hill as well as top legal experts and scholars across the country. I think you will see those consultations start this week.”

Biden has said since his campaign that he would nominate a Black woman to the nation’s highest court and he personally interviewed a few of the nominees when they were under consideration for appointment to the federal bench.

Some Republicans j michelle childs ap charles dharapakhave already voiced support for U.S. District Court Judge J. Michelle Childs, left, who is a favorite of key Democratic ally South Carolina Rep. Jim Clyburn. But the White House pushed back on the idea of choosing a candidate just to get bipartisan support, saying Biden would chose the best woman for the job, period.

“The president is going to select a woman, a Black woman, who is qualified, who is prepared, who has impeccable experience to serve on the court. He’s going to do that based on her credentials, of course having a discussion with her and not through gaming out the system,” Psaki said.

The White House has yet to designate a official to shepherd the process. But White House officials expect top lawyers in the White House Counsel’s office plus White House chief of staff Ron Klain, who has decades of experience working on nominees, to help in the selection process. Biden has pledged a pick by the end of February.

 

Edgar Cahn and former University of the District of Columbia Law School dean Shelley Broderick (Broderick photo).

Legal reformer and longtime law professor Edgar S. Cahn and former University of the District of Columbia Law School dean Shelley Broderick (Broderick photo). 

District of Columbia Bar Association, D.C. Bar Community Pays Tribute to Edgar S. Cahn, Visionary Behind Federal Civil Legal Aid Program, Staff Report, Jan. 31, 2022. The D.C. Bar joins the legal community in mourning the loss of Edgar S. Cahn, a lifelong advocate for access to justice who was instrumental in the founding of what is now the largest federally funded civil legal aid program for low-income Americans. Cahn, a member of the Bar since 1968, passed away at age 86 on January 23.

Cahn and his first wife, Jean Camper, also an attorney, cofounded Antioch School of Law, predecessor of the University of the District of Columbia David A. Clarke School of Law and the first law school in the United States to educate students primarily through clinical training in public interest law.

The Cahns met as undergraduate students at Swarthmore College and became a formidable duo in advocating for the disadvantaged. In 1964 the couple published “The War on Poverty: A Civilian Perspective” in the Yale Law Journal, in which they argued that the government should fund neighborhood law offices as part of its anti-poverty efforts.

The landmark article served as the blueprint for the establishment in 1965 of the Legal Services Program, the first federally funded program of its kind under the Johnson administration’s Office of Economic Opportunity, where both Cahns served. The program lasted until 1974, when it was replaced by the Legal Services Corporation (LSC).

“Edgar and Jean Cahn advocated, nearly 60 years ago, that people living in poverty should be assisted by empowering them with legal assistance to assert their rights in court,” says LSC President Ronald Flagg. “They further proposed the ‘neighborhood law firm’ as the vehicle for advancing this client-centric vision.”

The Cahns, who were married for 33 years, faced discrimination as an interracial couple. Jean Camper Cahn passed away in 1991 after a years-long battle with cancer. Edgar Cahn remarried in 2000.

James Sandman, president of LSC from 2011 to 2020, says the Cahns had a profound influence on American law. “Their idea became part of President Johnson’s War on Poverty and continues to this day through the 132 legal aid programs funded by the Legal Services Corporation,” Sandman says. Today LSC has more than 850 offices serving every county in every state, the District of Columbia, and the American territories.

In 1972 the Cahns founded Antioch School of Law and served as its co-deans from 1971 to 1980. “Edgar and Jean created clinical legal education, a model that trains law students to do real work for real clients under faculty supervision,” Sandman says. “And every law school in the United States now requires its students to have some kind of clinical experience.”

“Edgar was a role model and a hero to me. At the core of his being was passion for justice and a deep faith in the dignity, value, and virtue of every person,” Sandman adds.

Shelley Broderick, dean of UDC Law from 1998 to 2018, says she was privileged to have worked with and been inspired and supported by the Cahns throughout her career. “Edgar taught Law & Justice to every first-year student during orientation for decades until just this past year. Students left his course bonded as soldiers in a righteous cause. He was kind and unfailingly generous with his time, talent, and treasure. He was fully engaged and passionate about moving the needle on fairness and equality for all,” Broderick says.

Until his death, Edgar Cahn served as distinguished professor of law at UDC Law, inspiring generations of students to take up the public interest cause. “He was indefatigable until his last breath. He was truly one of a kind and he will be missed,” Broderick says.

Among those Cahn mentored was D.C. Bar Pro Bono Center Managing Attorney Adrian Gottshall, a former student of Cahn’s in his LLM class on systems change. Gottshall says Cahn inspired his students to reject oppressive legal and social systems and to become catalysts for change. “I was fortunate to have learned from such a legal legend,” says Gottshall. In a final encouraging email to Gottshall last year, Cahn wrote, “Tenacity is always the hidden, secret ingredient [to changing broken systems] . . . stick with it!”

Cahn also helped economically disadvantaged populations by founding TimeBanks USA in 1995. His idea of “time banking” was simple: An hour of volunteer service to others is banked as a single credit, and those credits can be used to receive the services and help of others. The organization now includes more than 200 banks in operation around the globe.

D.C. Bar CEO Robert Spagnoletti echoed the importance of Cahn’s contributions. “Few people have had a greater impact on providing legal services for those in need, on both a local and national scale, than Edgar Cahn,” Spagnoletti says. “The University of the District of Columbia David A. Clarke School of Law continues his legacy through its outstanding clinical programs and graduating talented lawyers who are dedicated to public service. Countless members of our community are indebted to Edgar Cahn and the passion that he brought to the fight for free and affordable legal services.”

Pro Bono Center Acting Director Darryl Maxwell says Cahn was a trailblazer in the legal services community who “embodied the axiom that lawyers have a professional duty to help the most vulnerable among us. His impact reached far beyond the law school walls where he taught.”

Edgar Stuart Cahn was born March 23, 1935, in New York City to Edmond Cahn, a noted legal philosopher, and Lenore Lebach Cahn, a social worker advocating against elder abuse. After graduating from Swarthmore College in 1956 with a degree in English literature, Cahn earned an MA and PhD in literature at Yale University. He received his JD from Yale Law School in 1963 and became a speechwriter and counsel for then-Attorney General Robert Kennedy and served as special assistant to Sargent Shriver, director of the newly formed Office of Economic Opportunity.

Cahn is survived by his second wife, Christine Gray Cahn; two sons from his first marriage; two stepchildren; his sister; five grandchildren; and two great-grandchildren.

Jan. 30

Pro-Trump Coup Attempt, Election Rights, Probes

 

virginia thomas donald trump jr amazon 2018

Ultra-right activist Virginia Thomas, a longtime lobbyist for extreme causes who has made vast amounts of money in key positions and wife of Associated Supreme Court Justice Clarence Thomas, poses four years ago in the Trump International Hotel with Donald Trump Jr. Within the Trump Town House on Insurrection Eve, the epicenter of the epicenter was a blue-walled conference room with a flag at one end echoing Ali Alexander’s (and other insurrectionists’) favored refrain on Insurrection Eve: “1776!” Alexander’s favored use of the date has long been the phrase, “1776 [violence] is always an option!”

Proof, Investigative Commentary: The Coming Collapse of Donald Trump’s January 6 Conspiracy, Part 5: Ginni Thomas, Seth Abramson, left, Jan. 30, 2022. seth abramson graphicThis shocking new PROOF series details mounting evidence that Trump's seditious January 6 conspiracy is at the point of collapse because of the cowardice, fear, and perfidy of his co-conspirators.

seth abramson proof logoIntroduction: On Insurrection Eve—January 5, 2021—the epicenter of Trumpist coup plotting in the United States, the White House excepted, wasn’t the now-infamous Willard Hotel in Washington, but rather Trump’s so-called “private residence” in the nation’s capital: the Trump Town House at Trump International Hotel.

Presiding over the war room in the Town House was none other than Donald Trump Jr., the president’s eldest son. Just as crucial to the plotting under way that fateful night was Trump Jr.’s then–secret fiancée Kimberly Guilfoyle, a leading presidential adviser who spent part of the hours-long war-room session speaking by phone with domestic terrorist Ali Alexander, co-leader of the Stop the Steal “movement” with Trump friend and adviser Roger Stone.

Proof must debunk the most widely spread myth about Ginni Thomas’s participation in Trump’s insurrection: that she helped organize the busloads of insurrectionists who arrived in Washington on Insurrection Eve, doing so to aid the aforementioned Alexander and Turning Point USA chief Charlie Kirk. While it’s true that Alexander has now confirmed he and Kirk orchestrated such busing in advance of the storming of the Capitol, and while it’s clear that some of those so aided by Kirk and Alexander later committed federal crimes on January 6—there is no evidence that Ginni Thomas was part of that effort, so this Proof report does not address it at all.

The reason many Americans believed Thomas was involved in the logistics of January 6 at such a granular level is partly owing to her reputation—an unfair extrapolation—and partly owing to her own public statements about January 6, for which, of course, she is directly responsible. As Slate has correctly reported via journalist Mark Joseph Stern, Ginni Thomas’s declarations on Insurrection Day gave many Americans pause:
Twitter avatar for @mjs_DCMark Joseph Stern @mjs_DC

On the morning of Jan. 6, Ginni Thomas—wife of Supreme Court Justice Clarence Thomas—endorsed the protest demanding that Congress overturn the election, then sent her “LOVE” to the demonstrators, who violently overtook the Capitol several hours later. She has not posted since....

In short, as the House January 6 Committee seeks to connect three spheres of coup plotting—grassroots activists and political insiders, Congress, and the White House—there is no map of the key players within these spheres in January 2021 that does not have both Ginni Thomas and Barbara Ledeen at or near the center of it.

The House January 6 Committee would be wise to subpoena these two women immediately in order to find out what they know as soon as possible. Proof is confident that if such a subpoena is issued, one or both women will take the same tack that their associates already have, either by asserting the Fifth Amendment (like Eastman and Clark), defying their subpoenas (like Meadows and Bannon), fighting document production vociferously (like Flynn and Trump), issuing statements filled with half-truths (like Foy and Navarro), or testifying under circumstances that suggest perjury (Alexander).

If House members do not determine what Ginni Thomas knew between now and the presumed Republican takeover of Congress in January 2023, it will be impossible for the case to be made that Clarence Thomas cannot sit on any Supreme Court case that involves Trump or the January 6 insurrection now or in the future. That is how urgent the immediate issuance of federal subpoenas to Barbara Ledeen and Ginni Thomas is.

washington post logoWashington Post, Kansas man who made Biden death threat said he was ‘coming for’ president, Secret Service alleges, Andrew Jeong and Spencer S. Hsu, Jan. 30, 2022 (print ed.). Charges have been filed against a Kansas man who said he was “coming for” President Biden and was found to be in possession of ammunition, though not a weapon, according to court documents.

Scott Ryan Merryman first called police in Independence, Kan., this past week to say he was going to Washington to see Biden, according to a complaint filed in Maryland federal court on Friday. He allegedly told the Secret Service in a phone interview the next day that God had said he should go to the capital to “lop off the head of the serpent in the heart of the nation,” Senior Special Agent Lisa Koerber said in a sworn affidavit.

secret service logoMerryman repeatedly denied that the serpent was a reference to the president, but on Thursday, Merryman called the White House, where a switchboard operator said he explicitly threatened Biden, the Secret Service said. Merryman, whose Facebook profile states he works in construction and used to be employed by the Army, said during that call that he was “going to cut off the head of the snake/anti-Christ,” according to the complaint. News of the charges was first reported by the Daily Beast.

After the White House phone conversation, Merryman told a Secret Service agent who spoke with him: “I’m coming for … sleepy Joe. I’m talking about President Biden, and you can quote me,” charging papers said.

The previous day, Secret Service agents met Merryman in the parking lot of a Cracker Barrel in Hagerstown, Md., the service said. He consented to a search in which he was found with three rounds of ammunition, although he told law enforcement that he no longer had a weapon, according to charges.

The Secret Service allege Merryman violated at least two federal laws, including one that prohibits threatening to harm the president. That charge carries a prison term of up to five years.

A Facebook page that the complaint said belonged to Merryman also contained what the Secret Service described as “a series of increasingly threatening verbiage.” In a Tuesday post — one of many rife with extremist Christian rhetoric — Merryman allegedly wrote that he would go “on a God led journey to our nations capital,” and asked his followers “watch my strategic moves for the coming days.”

Palmer Report, Opinion: Liz Cheney confirms January 6th Committee is landing its cooperating witnesses, Bill Palmer, right, Jan. 30, 2022. Whenever bill palmerdiscussing House Republican Liz Cheney, it’s important to keep in mind that .... Cheney is not our friend. But she has proven to be our reliable ally when it comes to the specific matter of the January 6th Committee. Whether it’s because she honestly has a problem with treason, or whether she just wants to strategically take Donald Trump and his loyalists down, is irrelevant.

bill palmer report logo headerI spell all this out because while Liz Cheney often lies about other topics, she’s been consistently telling the truth about the January 6th Committee investigation. So when Cheney said in a local Wyoming interview this past week that the committee is getting “tremendous cooperation” from hundreds of witnesses, and that notorious holdouts like Steve Bannon and Mark Meadows are more of the exception than the rule, I believe her.

This is important because at this point in this kind of probe, we the public don’t know what all is going on behind the scenes. The January 6th Committee has to keep the cooperation of certain witnesses secret so as not to tip off some other hostile witness, and so on. And of course the only way to keep this kind of information secret from certain people is to keep it secret from the entire public – for now.

Each week the media reports that yet another mid-level Trump administration person has been cooperating with the committee. Usually, these reports reveal that the person in question has been secretly cooperating for weeks or even months. In other words, even when we learn about this stuff, this information tends to be several steps behind what’s really been going on.

So when Liz Cheney says that the committee has been getting tremendous cooperation from witnesses, it’s a reminder that while we still don’t have most of their names, they have in fact been giving the committee the information it needs to know about Donald Trump’s crime spree. The folks who think the committee is doing “nothing” or has gotten “nowhere,” just because they can’t see the committee’s results publicly yet, have a misunderstanding of how these kinds of probes work.

ny times logoNew York Times, For Ketanji Brown Jackson, View of Criminal Justice Was Shaped by Family, Patricia Mazzei and Charlie Savage, Jan. 30, 2022. The story of an uncle’s cocaine conviction formed only part of Judge Jackson’s understanding of the system’s complexities. She is now seen as a contender to be President Biden’s Supreme Court pick.

ketanji brown jackson robeKetanji Brown Jackson, right, does not much talk about it, but when she was a college freshman, an uncle was sentenced to life in prison — a Black man, like so many others, handed a severe punishment during the war-on-drugs era.

The story of Thomas Brown’s cocaine conviction in the rough-and-tumble Miami of the 1980s formed only part of her early understanding of the criminal justice system’s complexities. Another uncle was Miami’s police chief. A third, a sex crimes detective. Her younger brother worked for the Baltimore police in undercover drug stings.

And then there is Judge Jackson, 51, whose peripatetic legal career, guided by the needs of marriage and motherhood, led her to big law firms, a federal public defender’s office, the United States Sentencing Commission and the federal bench, where she is widely seen as a contender to fulfill President Biden’s pledge to nominate the first Black woman to the Supreme Court.

The man she would succeed, Justice Stephen G. Breyer, who announced his retirement last week, once hired her as a clerk and alluded during her 2013 swearing-in ceremony to how her background strengthened her legal foundation.

“She sees things from different points of view, and she sees somebody else’s point of view and understands it,” he said.

Judge Jackson has not yet written a body of appeals court opinions expressing a legal philosophy, having joined the U.S. Court of Appeals for the District of Columbia only last summer.

Her earlier rulings as a district judge in Washington, however, comported with those of a liberal-leaning judge, blocking the Trump administration’s attempts to fast-track deportations, cut short grants for teen pregnancy prevention and shield a former White House counsel from testifying before Congress about President Donald J. Trump’s efforts to obstruct the Russia investigation.

As a judge, she is known more for being detailed and thorough, sometimes to a fault, than for crisp and succinct rulings. Her high-profile opinion in 2018 invalidating Mr. Trump’s executive orders that sought to undermine labor protections for public employees sprawled over 119 pages and peaked with an 84-word sentence.

She tends to assert lively command during arguments and hearings, displaying the skills of a national oratory champion in high school. And on a bench that would have more women than ever, Judge Jackson would bring particular knowledge of criminal law and sentencing legal policy.

That she just underwent a Senate confirmation is seen as another mark in her favor. The Senate confirmed her to the appeals court in June by a 53-to-44 vote. All 50 Democratic caucus members voted for her, as did three Republicans: Susan Collins of Maine, Lindsey Graham of South Carolina and Lisa Murkowski of Alaska.

But it is her rulings over more than eight years on the Federal District Court that have attracted the most attention.

In 2017, she sentenced a man to four years in prison after he had fired a military-style rifle inside a Washington pizzeria. He had been deluded by a false internet conspiracy theory, known as Pizzagate, that Hillary Clinton was operating a pedophile ring there.

After she invalidated Mr. Trump’s executive orders that undercut public labor union protections, an appeals court unanimously reversed her ruling on the grounds that the courts lacked jurisdiction to consider whether the orders were lawful.

In perhaps her most famous decision, Judge Jackson ruled in 2019 that Donald F. McGahn II, the former White House counsel, had to obey a congressional subpoena seeking his testimony about Mr. Trump’s actions during the Russia investigation.

“Presidents are not kings,” she wrote, adding that current and former White House officials owe their allegiance to the Constitution. “They do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

Jan. 29

supreme court building

washington post logoWashington Post, White House rebukes GOP senator who said pick for Supreme Court will be ‘beneficiary’ of affirmative action, Brady Dennis, Jan. 29, 2022. "We hope Senator Wicker will give President Biden’s nominee the same consideration" he gave to Trump pick Amy Coney Barrett, a White House spokesman said. Spokesman says Biden has record of “extraordinarily qualified and groundbreaking nominees”

The White House on Saturday issued a forceful rebuke to a U.S. senator from Mississippi who said President Biden’s promise to pick a Black woman for the Supreme Court would ensure that the nominee is a “beneficiary” of affirmative action.

joe biden black background resized serious fileThe comments from Republican Sen. Roger Wicker, left, came Friday during a wide-ranging radio interview, in which he bemoaned the “left-wing judge” that Biden is likely to nominate to replace retiring Justice Stephen G. Breyer. Asked by host Paul Gallo on SuperTalk Mississippi Radio about Biden’s vow to nominate a Black woman, Wicker acknowledged the president was roger wicker twitterfulfilling a campaign promise.

“The irony is that the Supreme Court is at the very same time hearing cases about this sort of affirmative racial discrimination, while adding someone who is the beneficiary of this sort of quota,” Wicker said, in comments first reported by the Mississippi Free Press.

“The majority of the court may be saying writ large that it’s unconstitutional. We’ll see how that irony works out,” he said, adding that whoever Biden nominates “will probably not get a single Republican vote.”

“The majority of the court may be saying writ large that it’s unconstitutional. We’ll see how that irony works out,” he said, adding that whoever Biden nominates “will probably not get a single Republican vote.”

On Saturday, White House spokesman Andrew Bates said in a statement that Biden’s promise to elevate a Black woman to the highest U.S. court “is in line with the best traditions of both parties and our nation.”

Bates noted that Ronald Reagan had pledged during his presidential campaign to send the first woman to the court, saying that it “symbolized” the American ideal that “permits persons of any sex, age, or race, from every section and every walk of life to aspire and achieve in a manner never before even dreamed about in human history.”

Reagan selected Sandra Day O’Connor for a vacancy in 1981. She served on the Supreme Court until 2006.

washington post logoWashington Post, Inside the campaign to pressure Justice Breyer to retire, Matt Viser, Tyler Pager, Seung Min Kim and Robert Barnes, Jan. 29, 2022. The Supreme Court justice’s decision to step down followed an extraordinary campaign designed to pressure him to retire and make way for a new nominee to be named by a Democratic president.

During a Harvard Law School lecture last April, Justice Stephen G. Breyer made clear that he viewed the judiciary as divorced from politics. Once a judge takes an oath, the Supreme Court jurist said, “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”

But just three days later, a new phase in an extraordinary year-long campaign was launched to pressure Breyer to rethink his loyalties and focus far more on the political party that helped secure his appointment and the court’s dwindling liberal minority. A group of Democratic operatives circulated an online petition. Activists protested his events. Op-eds appeared in newspapers. A truck circled the Supreme Court building with a billboard that read: “Breyer, retire.”

It was the start of a remarkably public push on the political left to pressure Breyer, 83, the high court’s oldest justice and one of its three liberals, to retire while Democrats controlled the White House and Senate and make way for a younger nominee installed by President Biden. Activists were motivated by the experience of Justice Ruth Bader Ginsburg, the liberal icon who died in office in 2020 and was replaced by President Donald Trump’s nominee, conservative Amy Coney Barrett.

ny times logoNew York Times, Black Women in Law Feel Pride and Frustration Ahead of Court Nominee, Tariro Mzezewa and Audra D. S. Burch, Jan. 29, 2022. As President Biden prepares to nominate the first Black woman to the Supreme Court, members of this elite group are watching with complicated emotions.

Alisia Adamson Profit, a Black woman who has practiced law for more than a dozen years in Central Florida, walked into a courtroom one morning last June for a pretrial hearing, just as she had done countless times.

But this time was different. A court deputy asked Ms. Profit — and none of the other lawyers in the courtroom, all of whom were white — for her identification.

It wasn’t the first time she felt singled out as part of a tiny universe of Black women judges and lawyers.

“It’s the idea that somehow I don’t belong here,” said Ms. Profit, a former public defender who founded a criminal defense firm based in Orlando.

As President Biden prepares to nominate the first Black woman to the nation’s highest court, members of the small, elite group of Black women lawyers and judges are reflecting about their place in their profession and watching with complicated emotions.

By some estimates, they represent perhaps just 2 percent of the nation’s 1.3 million lawyers. Many say they have experienced discrimination or been second-guessed. At times, they have felt dismissed by others in the legal world.

Knowing how isolating that can be, older Black women, many of whom were the first in their families to go to law school, described an instinctive urge to mentor younger Black women. And despite the challenges, they described still loving the law and doing what they considered their dream jobs.

Now, for the first time in their lives, someone who looks like them — and likely experienced similar career challenges — could ascend to the Supreme Court and rule on issues foundational to American lives, from voting and abortion rights to health care and affirmative action.

Jan. 28

President Biden, right, and Supreme Court Justice Stephen G. Breyer shake hands at the White House on Thursday during the announcement of Breyer’s upcoming retirement. (Washington Post Photo by Demetrius Freeman).President Biden, right, and Supreme Court Justice Stephen G. Breyer shake hands at the White House on Thursday during the announcement of Breyer’s upcoming retirement. (Washington Post Photo by Demetrius Freeman).

washington post logoWashington Post, Opinion: If Breyer can learn to recognize political reality, Biden can, too, Linda Hirshman, Jan. 28, 2022. Both men believed — against most of the evidence — in old-fashioned compromise.

Just in the nick of time, Justice Stephen G. Breyer is going to retire from the Supreme Court. At age 83, Breyer came awfully close to tossing his legacy onto the pyre where the heritage of Justices Ruth Bader Ginsburg and — less visibly but more consequentially — Sandra Day O’Connor, lie smoldering. Both stayed on the court so long that they were replaced by hard-right judges. Neither recognized the way politics, and the Republican Party, had changed until it was too late. Breyer appears to have learned their lesson. The question is whether President Biden can, too.

Republicans have known that timing matters for the Supreme Court since 1968, when they pushed Democratic appointee Abe Fortas out just in time for Richard Nixon to name his replacement. Decades later, Ginsburg blundered because she was blind to how American politics were racing rapidly to the right.

For a long year, it has seemed that Breyer, and, worse, Biden, were similarly near- and shortsighted about political reality: Breyer dithered over the “factors” in any decision; Biden has bobbed and weaved to avoid upsetting the GOP.

Massive pandemic relief went out without his name on it, the Trump-dominated courts eviscerated his efforts to control the virus, and he never named the Former Guy, lest he alienate his supporters.

A replacement of one moderate liberal for another won’t fix the court. But maybe it gives Biden a chance to realize finally that the past — those vaunted days of fellowship and bipartisan reason — is not only past, it is dead.

Linda Hirshman is the author of “Sisters in Law: How Ruth Bader Ginsburg and Sandra Day O’Connor Went to the Supreme Court and Changed the World” and forthcoming “Color of Abolition: How a Printer, A Prophet and a Contessa Moved America.”

 

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ny times logoNew York Times, Opinion: Democrats Should Take a Page From Mitch McConnell’s Book, Stephanie Cutter, Jan. 28, 2022. With Justice Stephen Breyer’s announcement that he will retire from the Supreme Court this summer, President Biden has a chance to take the landmark step of putting the first Black woman on the court, while shaping the future of jurisprudence. Thanks to President Donald Trump and the former Senate majority leader Mitch McConnell, there is a new set of rules in place for Supreme Court nominations that all but guarantees Democrats will succeed.

Unless of course, we mess it up.

In 2009, when President Barack Obama nominated Judge Sonia Sotomayor to the court, our team shepherded the nominee through the halls of the Senate for courtesy calls with 89 senators, most of whom waited to announce their intended vote until the Judiciary Committee did its work in vetting and questioning her. Not until that process was complete could they take the measure of her fitness to serve on the court.

Those days are gone. Mr. Biden shouldn’t look to the process we followed in the Sotomayor nomination. Instead, he should look to the nomination and confirmation of Justice Amy Coney Barrett.

Over Mr. Trump’s term, Republicans distilled the Supreme Court nomination process to pure politics. Instead of spending weeks scrutinizing a nominee’s rulings and parsing legal intricacies for potential hearing questions, they simply rubber-stamped Mr. Trump’s picks. Even before Mr. Trump announced his nominee to succeed Justice Ruth Bader Ginsburg, the chairman of the Senate Judiciary Committee, Lindsey Graham, declared that he had enough votes to confirm any nominee in both the Judiciary Committee and on the Senate floor.

And within minutes of the president’s nomination of Judge Barrett, Republican senators began to declare their support for her. Thirty-eight days after Justice Ginsburg died, her successor was confirmed. The process exemplified one of the defining features of the modern Republican Party: its laser focus on the judiciary and its extraordinary discipline in filling seats when its members control the Senate — or blocking confirmations when they do not.

An overly deliberative process would add nothing in an environment this toxic and divisive. No one doubts that some Republicans will pluck a line out of a long-ago legal brief by the nominee and try to spin it as a fatal flaw or attempt to stoke racial tensions by demeaning her credentials. So we should not give more room for the opposition to tarnish the nominee. We need to set a strategy and timeline, ignore those critical of a fair but expedited nomination process — including from inside our own party — and maintain singular focus until the president’s nominee is confirmed.

Moving fast isn’t just a defensive move. It can also help rally the nation. We know that Mr. Biden has committed to nominating the first Black woman to the court. As for any nominee, her qualifications will lead the way. But, when President Obama nominated the first Latina — Justice Sotomayor — it was her incredible life story of growing up in the Bronx as the daughter of parents from Puerto Rico that won the hearts and minds of many Americans, even potential critics like Senator Graham. She remains the Supreme Court’s most popular justice.

The moment Justice Breyer’s replacement is announced, she will instantly become a historic figure. Every woman known to be a contender has a rich story to tell and will set a powerful example for generations of Americans to come. Let’s hurry up and introduce her, and get her ready to join the court.

Ms. Cutter, a Democratic political strategist, was an adviser to President Barack Obama and coordinated the process that resulted in the nomination and confirmation of Justice Sonia Sotomayor. She also was the executive producer of President Biden’s inauguration.

Senate Democrats say they plan to move speedily to consider President Biden’s nominee for the Supreme Court vacancy created by the retirement of Justice Stephen G. Breyer, following the lead of Republicans who raced through the nomination of Justice Amy Coney Barrett in a matter of weeks before the 2020 elections.

Holding a bare 50-seat majority that is under severe threat in November’s midterm elections, Democrats acknowledged the need to act fast, particularly since an illness or death of one of their members could deprive them of their numerical advantage and greatly complicate efforts to fill the seat.

“President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed,” Senator Chuck Schumer, Democrat of New York and the majority leader, said on Wednesday after plans for Justice Breyer’s departure became public.

Democrats could confirm a successor to Justice Breyer without any Republican support under Senate rules that shield a Supreme Court nomination from a filibuster, but they must remain firmly united to do so.

Jan. 27

 

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ny times logoNew York Times, Senate Democrats Plan to Move Quickly on Successor to Justice Breyer, Carl Hulse, Jan. 27, 2022. Given their tenuous majority, Democrats intend to act fast, anticipating roadblocks from Senator Mitch McConnell and Republicans.

Senate Democrats say they plan to move speedily to consider President Biden’s nominee for the Supreme Court vacancy created by the retirement of Justice Stephen G. Breyer, following the lead of Republicans who raced through the nomination of Justice Amy Coney Barrett in a matter of weeks before the 2020 elections.

Holding a bare 50-seat majority that is under severe threat in November’s midterm elections, Democrats acknowledged the need to act fast, particularly since an illness or death of one of their members could deprive them of their numerical advantage and greatly complicate efforts to fill the seat.

“President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed,” Senator Chuck Schumer, Democrat of New York and the majority leader, said on Wednesday after plans for Justice Breyer’s departure became public.

Democrats could confirm a successor to Justice Breyer without any Republican support under Senate rules that shield a Supreme Court nomination from a filibuster, but they must remain firmly united to do so.

washington post logoWashington Post, Incoming Georgetown Law administrator apologizes after tweets dean called ‘appalling,’ Lauren Lumpkin, Jan. 27, 2022. Ilya Shapiro is set to begin his role as senior lecturer and executive director of the Georgetown Center for the Constitution on Feb. 1.

The incoming leader of a Georgetown Law research institute has apologized after facing backlash for a series of now-deleted tweets about President Biden’s promise to nominate a Black woman for the Supreme Court that the school’s dean has called “appalling.”

Ilya Shapiro, the vice president and director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, is set to begin his new role as executive director of the Georgetown Center for the Constitution on Tuesday. Less than a week before Shapiro arrives on campus, his comments on Biden’s potential pick for the high court have drawn frustration from many in the community.

“Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identify politics benefit of being first Asian (Indian) American,” Shapiro wrote on Wednesday, following news that Supreme Court Justice Stephen G. Breyer will retire at the end of the current term. Srinivasan made history in 2020 when he became the first person of South Asian descent to lead a federal circuit court.

“But alas doesn’t fit into the latest intersectionality hierarchy so we’ll get lesser black woman,” Shapiro continued.

In a tweet that followed, Shapiro added that if Biden will only consider a Black woman to fill Breyer’s seat, his nominee “will always have an asterisk attached. Fitting that the Court takes up affirmative action next term.”

Biden, while campaigning in 2020, vowed to nominate a Black woman to the high court. He affirmed that commitment on Thursday.

The Supreme Court earlier this week announced it will examine admissions policies at Harvard University and the University of North Carolina at Chapel Hill, and whether universities can consider the race of applicants when trying to enroll diverse student bodies.

A third tweet included a poll in which Shapiro asked his followers if Biden is racist, sexist, both or neither for his commitment to selecting a Black female nominee.

Shapiro made similar remarks about identity following Sonia Sotomayor’s nomination to the high court in 2009. “In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit,” he wrote in a CNN column, arguing that despite Sotomayor’s accomplishments, she would not have been seriously considered for the job if she were not Hispanic.

Shapiro, who will also work as a senior lecturer at Georgetown, did not immediately return a request for comment. In a tweet Thursday, he wrote: “I apologize. I meant no offense, but it was an inartful tweet. I have taken it down.”

William M. Treanor, dean and executive vice president of the Georgetown University Law Center, condemned Shapiro’s remarks in a statement.

“The tweets’ suggestion that the best Supreme Court nominee could not be a Black woman and their use of demeaning language are appalling,” Treanor said Thursday. “The tweets are at odds with everything we stand for at Georgetown Law and are damaging to the culture of equity and inclusion that Georgetown Law is building every day.”

Shapiro has been accused of racism and sexism for his remarks. The National Review, a conservative magazine, pushed back on the criticism and said Biden’s commitment to nominating a Black woman eliminates qualified candidates who do not fit the president’s criteria.

The incident comes almost a year after a Georgetown Law adjunct professor was fired after making statements about Black students that Treanor called “reprehensible.”

“I hate to say this. I end up having this angst every semester that a lot of my lower ones are Blacks,” the professor said in a video recording. “Happens almost every semester. And it’s like, ‘Oh, come on.’ You get some really good ones, but there are also usually some that are just plain at the bottom. It drives me crazy.”

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Jan. 26

 

supreme court resized 2021

ny times logoNew York Times, Justice Breyer to Retire From Supreme Court, Adam Liptak, right, Jan. 26, 2022. Justice Stephen G. Breyer, the senior member of the adam liptakSupreme Court’s three-member liberal wing, will retire, two people familiar with the decision said, providing President Biden a chance to make good on his campaign pledge to name a Black woman to the court.

Mr. Biden is expected to formally announce the retirement at the White House on Thursday, according to one person familiar with the planning for the event.

Justice Breyer, 83, the oldest member of the court, was appointed in 1994 by President Bill Clinton. After the death of Justice Ruth Bader Ginsburg in 2020 and the appointment of Justice Amy Coney Barrett by President Donald J. Trump, he became the subject of an energetic campaign by liberals who wanted him to step down to ensure that Mr. Biden could name his successor while Democrats control the Senate.

stephen breyer full portraitWith conservatives now in full control of the court, replacing Justice Breyer, left, with another liberal would not change its ideological balance or affect its rightward trajectory in cases on abortion, gun rights, religion and affirmative action.

But Democrats, who control the Senate now by the narrowest of margins, may have to act quickly if they want to ensure that the court does not become even more conservative. If they lose even a single seat in the midterm elections, the balance of power in the chamber would flip, making it much more difficult for Mr. Biden to win confirmation for his nominee.

Justice Breyer’s opinions have been those of a moderate liberal, marked by deference to experts, the ad hoc balancing of competing interests and alertness to fundamental fairness. His goal, he said, was to reinforce democracy and to supply workable legal principles for a sprawling and diverse nation.

He has been more likely to vote against criminal defendants than other liberal justices. On the other hand, as the years progressed, he has grown increasingly hostile to the death penalty.

He played a starring role in the court’s last term, writing majority opinions rejecting a challenge to the Affordable Care Act and protecting the free speech rights of a high school student.

In an interview in August, Justice Breyer said he was struggling with the question of when to step down.

“There are many things that go into a retirement decision,” he said.

He recalled approvingly something Justice Antonin Scalia had told him.

“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer recalled. “That will inevitably be in the psychology” of his decision, he said.

“I don’t think I’m going to stay there till I die — hope not,” he said.

Over the years, Justice Breyer bristled at the accusation that judges act politically. “My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,” he said in April in a lecture at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”

On the bench, his demeanor was professorial, and his rambling questions, often studded with colorful hypotheticals, could be charming or exasperating. But they demonstrated a lively curiosity and an open mind.

If Mr. Biden succeeds in winning confirmation for his nominee to replace Justice Breyer, that justice is very likely to serve for decades.

Jan. 24

 

Associate Supreme Court Justice Clarence Thomas (Pool photo by Erin Schaff via Getty Images).

Associate Supreme Court Justice Clarence Thomas (Pool photo by Erin Schaff via Getty Images).

The New Republic, Opinion: The Case for Impeaching Clarence Thomas, Michael Tomasky (editor of The New Republic), Jan. 24, 2022. The Supreme Court justice refuses to recuse himself from cases in which his right-wing activist wife, Ginni, has a clear interest. The Democrats should punish him for it.

In a sane world, Jane Mayer’s excellent piece on Ginni Thomas in The New Yorker (Is Ginni Thomas a Threat to the Supreme Court?), would set off a series of events that would lead to her husband Clarence Thomas’s impeachment and removal from the Supreme Court. Ginni is involved with numerous far-right organizations and schemes that take very public positions on court decisions across a range of social and political issues, such as last week’s 8–1 holding that Donald Trump could not block the release of documents related to the January 6, 2021, insurrection.

ginni thomas gage skidmore CustomThomas was the lone dissenter in that case. His wife (shown at right in a Gage Skidmore photo)sat on the advisory board of a group that sent busloads of insurrectionists to Washington on January 6. In addition, she cheered the insurrection on Facebook. It’s just the most recent example where she has been involved in activities that directly or indirectly place her activism before the court, and her husband does not care how corrupt it looks.

They’ve been doing this for years. This first occasion was back in 2000, in a case Mayer doesn’t even go into, when it was revealed after that election that as a Heritage Foundation staffer, Ginni was screening résumés for the incoming Bush administration while the nation awaited a ruling from the court on the Florida recount. There was pressure then on Thomas to recuse himself.

A decade later, when the first major Obamacare case came before the court, it was widely noted that Ginni’s group, Liberty Central, called the law a “disaster” and urged repeal. Again, there were calls for Thomas to recuse.

He didn’t do so in either case. And in the first one, he was part of the 5–4 majority in Bush v. Gore, one of the most self-discrediting decisions in the court’s history.

So for 20 years, Ginni Thomas has been operating in the white-hot center of far-right activist circles, involved in everything from Obamacare to abortion rights to same-sex marriage to you name it—all issues that have come before her husband. A more honorable man would recuse himself from all such cases or indeed quietly ask his spouse to find another, less incendiary line of work that has no impact on the appearance of her husband’s ethical standards.

And what have the Democrats done about it? Here, again, we see the difference between the two parties and their broader solar systems. If there were a liberal justice on the court with a spouse who was involved in every major ideological battle of our time, you can be sure the following process would have played out:

  • 1. Some back-bench members of Congress would have started raising the issue.
  • 2. Fox News and other right-wing media would have picked it up and turned the spouse into a symbol of liberal corruption.
  • 3. Once in the majority, House Republicans would have held hearings and issued reports.
  • 4. They probably would have impeached the justice, knowing that it would fail in the Senate but would tarnish said justice and any precedent of which he or she was a part.

The Democrats likely don’t have the gumption to do this. But they could do it. The House Judiciary Committee could hold hearings into Ginni’s organization and associations. The select committee on January 6 could ask her to testify and, once she refuses, subpoena her, which would require her husband to recuse himself on all January 6–related matters.

That would be hugely controversial, so they probably won’t do it. But why not? Here’s a question for you. If the Republicans retake the House this November, the chairman of the Judiciary Committee is going to be Jim Jordan. He’s probably going to lead an impeachment of Joe Biden. Think he’ll be cowed because it’s hugely controversial?

The Democrats and their allies aren’t powerless on this matter, and here are some moves they should make:

First, activist lawyers on the liberal side should file recusal demands of Thomas on every single case in which Ginni Thomas or any organization she’s affiliated with has any kind of involvement (where she or the affiliated group has taken a public position, for example). This will at least keep the issue in the news and the spotlight on them.

Second, Democrats in Congress should push harder for the Supreme Court to adopt a judicial code that justices have to follow. Right now, the nine justices of the Supreme Court are the only federal judges in the land not bound by the Code of Conduct for U.S. judges. They police themselves. There are a number of proposals and recommendations, some laid out in this Brennan Center report, that would impose various ethics and disclosure rules on the court. This is not just a right-wing problem, by the way. Liberal justices also have taken lavish junkets paid for by ideological organizations. These are made public on financial disclosure forms, but typically with very little detail.

Third, something needs to be done to rein in the proliferation of amicus briefs. Corporate interests in recent years have flooded the court with amicus briefs that create the appearance of huge groundswells of support for a certain position, but often they’re all backed by the same dark-money outfits. This amounts to lobbying, by people like Ginni Thomas’s friends and allies and fellow board members and prize recipients. It’s perfectly legal but rancidly corrupt.

Finally, there are giant loopholes in the financial disclosure rules for justices, such that a spouse can take in money from a source that has an amicus brief before the court, and no one knows it. Ginni Thomas got more than $200,000 from one person who had a brief in front of the court, and only the Thomases knew about it.

Public approval of the Supreme Court is down to 40 percent, a new low. A poll last year on individual justices’ approval ratings is even more interesting. The three liberal justices were all above water by six to 10 points. The conservatives were all in negative territory, except Samuel Alito, who was +1. They think they’re saving the republic from godless heathens like you and me. They somehow can’t see that in saving it, they are destroying it, and none of them more so than Clarence Thomas and his nonexistent ethics. Democrats, it’s long past time to make an issue of him and his wife.

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

ny times logoNew York Times, Supreme Court to Hear Challenge to Affirmative Action at Harvard and U.N.C., Adam Liptak, Jan. 24, 2022. The court will decide whether race-conscious admissions programs at the schools are lawful, putting the fate of affirmative action in higher education at risk.

The Supreme Court agreed on Monday to decide whether race-conscious admissions programs at Harvard and the University of North Carolina are lawful, putting the fate of affirmative action in higher education at risk.

The court has repeatedly upheld similar programs, most recently in 2016. But recent changes in the court’s membership have made it more conservative, and the challenged programs are almost certain to meet skepticism.

harvard logoThe case against Harvard accused it of discriminating against Asian American students by using a subjective standard to gauge traits like likability, courage and kindness and by effectively creating a ceiling for them in admissions.

Lawyers for Harvard said that the challengers had relied on a flawed statistical analysis and denied that the university discriminated against Asian American applicants. More generally, they said that race-conscious admissions policies are lawful.

“Under established precedent, to achieve the educational benefits that flow from student-body diversity,” they wrote in a brief urging the justices to deny review, “universities may consider race as one factor among many in a full, individualized evaluation of each applicant’s background, experiences and potential contributions to campus life.”

In the North Carolina case, the plaintiffs made more familiar arguments, saying the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. The university responded that its admissions policies fostered educational diversity and were lawful under longstanding Supreme Court precedents.

Both cases were brought by Students for Fair Admissions, a group founded by Edward Blum, a legal entrepreneur who has organized many lawsuits challenging race-conscious admissions policies and voting rights laws, several of which have reached the Supreme Court.

In the recent suits, the universities both won in federal trial courts, and the decision in Harvard’s favor was affirmed by a federal appeals court.

The Supreme Court’s decision to hear both cases may have been influenced by the differing legal regimes that apply to the two schools. Harvard, a private entity, must comply with a federal statute that bans race discrimination as a condition of receiving federal money; the University of North Carolina, which is public, must also satisfy the Constitution’s equal protection clause.

washington post logoWashington Post, Opinion: The officers who didn’t stop Chauvin are on trial. Their prosecution may matter even more than his did, Christy E. Lopez, Jan. 24, 2022 (print ed.). The federal criminal trial of the three police officers who stood by as fellow officer Derek Chauvin slowly killed George Floyd begins Monday in St. Paul, Minn. This trial may be even more important than Chauvin’s was.

Former Minneapolis officers J. Alexander Kueng, Thomas K. Lane and Tou Thao are charged with failing to render medical aid after Chauvin pinned Floyd’s neck to the ground for more than nine minutes on May 25, 2020. Additionally, Kueng and Thao are charged with failure to intervene to stop Chauvin. Legally, the trial is unprecedented.

Chauvin, who was convicted in April on state murder and manslaughter charges and later pleaded guilty to a federal charge of violating Floyd’s constitutional rights, was the senior officer on the scene that day (Lane and Kueng had only been on the streets for a few days). While a “duty to intervene” to prevent another officer from using unreasonable force has existed for 50 years, it has led to few federal prosecutions. In fact, I can find no federal prosecutions of lower-ranking officers for failing to intervene to prevent a higher-ranking officer — or even a peer officer — from using unreasonable force.

Thus, this trial could set federal precedent for holding officers criminally culpable not just for committing civil rights violations themselves, but also for failing to prevent another officer — even a peer or superior officer — from committing them. And that precedent could add momentum to a badly needed sea change in policing — toward a shared expectation that every officer will take all feasible steps to prevent another officer from violating constitutional rights, regardless of rank.

Jan. 23

washington post logoWashington Post, Opinion: Handling of the Texas abortion case is an embarrassment for the federal judiciary, Ruth Marcus, right, Jan. 23, 2022. ruth marcus twitter CustomIn the aftermath of the Supreme Court’s 1954 decision in Brown v. Board of Education, Southern states launched a campaign of massive resistance to school desegregation. Today, a version of massive resistance is again playing out, this time to the court’s ruling in the Texas abortion case — and this time, the resistance is coming from within the judiciary itself.

Worse yet: In the years after Brown, the court made clear that it would not tolerate any disobedience of its desegregation ruling. By contrast, in the weeks since the court allowed a limited challenge to the Texas abortion law to proceed, the conservative justices have shown themselves unwilling to enforce even that weak edict.

Since Sept. 1 — for almost five months — women in Texas have been denied the ability to exercise what, for now, remains their constitutional right to abortion.

washington post logoWashington Post, Va.’s new attorney general fires U-Va. counsel who was on leave working as investigator for Jan. 6 panel, Justin Jouvenal and Lauren Lumpkin, Jan. 23, 2022. Virginia’s new Republican attorney general has fired the University of Virginia’s counsel, who was on leave from the job to work as the top investigator for the U.S. House panel investigating the Jan. 6, 2021, insurrection at the Capitol, the attorney and university said.

Tim Heaphy, who had worked at the state’s flagship university for about three years, was among roughly 30 staffers who were let go by Attorney General Jason S. Miyares shortly before he took office a little over a week ago. Democrats have questioned the firings and how they were carried out.

Victoria LaCivita, a Miyares spokeswoman, said the attorney general’s office had also fired the counsel for George Mason University, Brian Walther, saying it is common for an incoming attorney general to appoint counsel that shares its “philosophy and legal approach.”

Both Heaphy and Walther are Democrats.

LaCivita declined to say whether any other counsels at Virginia’s more than three dozen public colleges and universities had been let go.

LaCivita said in a statement that Heaphy was a “controversial” hire and that Miyares’s Democratic predecessor, Mark R. Herring, had “excluded many qualified internal candidates when he brought in this particular university counsel.”

“Our decision was made after reviewing the legal decisions made over the last couple of years,” LaCivita said. “The Attorney General wants the university counsel to return to giving legal advice based on law, and not the philosophy of a university. We plan to look internally first for the next lead counsel.”

LaCivita declined to say what legal decisions she was referencing. LaCivita said Heaphy’s firing had nothing to do with his work on the Jan. 6 panel.

Jan. 21

clarence virginia thomas bought by billionaires

Ultra-right lobbyist Virginia Thomas, her husband Supreme Court Associate Justice Clarence Thomas are displayed in a collage that showsalso  two right-wing billionaires who have served as friends and patrons of the couple through the decades. Real estate mogul Harlan Crow, second from the left, contributed $500,000 to her and considerable funds have also been funneled to her via Charles Koch, shown above at right, and his brother David Koch.

The New Yorker, Investigative Commentary: Is Ginni Thomas a Threat to the Supreme Court? Jane Mayer, right, Jan. 21, 2022. Behind closed doors, Justice jane mayer cspanClarence Thomas’s wife is working with many groups directly involved in controversial cases before the Court. Thomas has new yorker logodeclared that America is in existential danger because of the “deep state” and the “fascist left,” which includes “transsexual fascists.”

In December, Chief Justice John Roberts, below left, released his year-end report on the federal judiciary. According to a recent Gallup poll, the Supreme Court has its lowest public-approval rating in history—in part because it is viewed as being overly politicized. President Joe Biden recently established a bipartisan commission to consider reforms to the Court, and members of Congress have introduced legislation that would require Justices to adhere to the same types of ethics standards as other judges. Roberts’s report, however, defiantly warned everyone to back off. “The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence,” he wrote. His statement followed a series of defensive speeches from members of the Court’s john roberts oconservative wing, which now holds a super-majority of 6–3.

Last fall, Justice Clarence Thomas, in an address at Notre Dame, accused the media of spreading the false notion that the Justices are merely politicians in robes. Such criticism, he said, “makes it sound as though you are just always going right to your personal preference,” adding, “They think you become like a politician!”

The claim that the Justices’ opinions are politically neutral is becoming increasingly hard to accept, especially from Thomas, whose wife, Virginia (Ginni) Thomas, is a vocal right-wing activist. She has declared that America is in existential danger because of the “deep state” and the “fascist left,” which includes “transsexual fascists.” Thomas, a lawyer who runs a small political-lobbying firm, Liberty Consulting, has become a prominent member of various hard-line groups. Her political activism has caused controversy for years. For the most part, it has been dismissed as the harmless action of an independent spouse. But now the Court appears likely to secure victories for her allies in a number of highly polarizing cases—on abortion, affirmative action, and gun rights.

Many Americans first became aware of Ginni Thomas’s activism on January 6, 2021. That morning, before the Stop the Steal rally in Washington, D.C., turned into an assault on the Capitol resulting in the deaths of at least five people, she cheered on the supporters of President Donald Trump who had gathered to overturn Biden’s election. In a Facebook post that went viral, she linked to a news item about the protest, writing, “LOVE MAGA people!!!!” Shortly afterward, she posted about Ronald Reagan’s famous “A Time for Choosing” speech. Her next status update said, “GOD BLESS EACH OF YOU STANDING UP or PRAYING.” Two days after the insurrection, she added a disclaimer to her feed, noting that she’d written the posts “before violence in US Capitol.” (The posts are no longer public.)

Later that January, the Washington Post revealed that she had also been agitating about Trump’s loss on a private Listserv, Thomas Clerk World, which includes former law clerks of Justice Thomas’s. The online discussion had been contentious. John Eastman, a former Thomas clerk and a key instigator of the lie that Trump actually won in 2020, was on the same side as Ginni Thomas, and he drew rebukes.

Stephen Gillers, a law professor at N.Y.U. and a prominent judicial ethicist, told me, “I think Ginni Thomas is behaving horribly, and she’s hurt the Supreme Court and the administration of justice. It’s reprehensible. If you could take a secret poll of the other eight Justices, I have no doubt that they are appalled by Virginia Thomas’s behavior. But what can they do?” Gillers thinks that the Supreme Court should be bound by a code of conduct, just as all lower-court judges in the federal system are. That code requires a judge to recuse himself from hearing any case in which personal entanglements could lead a fair-minded member of the public to question his impartiality. Gillers stressed that “it’s an appearance test,” adding, “It doesn’t require an actual conflict. The reason we use an appearance test is because we say the appearance of justice is as important as the fact of justice itself.”

The Justice Department has so far charged more than seven hundred people in connection with the insurrection, and Attorney General Merrick Garland has said that the federal government will prosecute people “at any level” who may have instigated the riots—perhaps even Trump. On January 19th, the Supreme Court rejected the former President’s request that it intervene to stop the congressional committee from accessing his records. Justice Thomas was the lone Justice to dissent. (Meadows had filed an amicus brief in support of Trump.)

Ginni Thomas, meanwhile, has denounced the very legitimacy of the congressional committee. On December 15th, she and sixty-two other prominent conservatives signed an open letter to Kevin McCarthy, the House Minority Leader, demanding that the House Republican Conference excommunicate Representatives Liz Cheney and Adam Kinzinger for their “egregious” willingness to serve on the committee. The statement was issued by an advocacy group called the Conservative Action Project, of which Ginni Thomas has described herself as an “active” member. The group’s statement excoriated the congressional investigation as a “partisan political persecution” of “private citizens who have done nothing wrong,” and accused the committee of serving “improperly issued subpoenas.”

A current member of the Conservative Action Project told me that Ginni Thomas is part of the group not because of her qualifications but “because she’s married to Clarence.” The member asked to have his name withheld because, he said, Ginni is “volatile” and becomes “edgy” when challenged. He added, “The best word to describe her is ‘tribal.’ You’re either part of her group or you’re the enemy.”

Jan. 20

Wayne Madsen Report, Investigative Commentary / Special Report: Minority rule Trump -- turning America into Rhodesia and Afrikaaner Suid Afrika, wayne madsen may 29 2015 cropped SmallWayne Madsen, left, and author of The Rise of the Fascist Fourth Reich: The Era of Trumpism and the Far Right, Jan. 20, 2022. The more that is discovered about Donald Trump's coup d'état on January 6, the more it takes on the appearance of a pre-planned putsch that combined the elements of street action -- the occupation of the U.S. Capitol complex and, possibly, the Supreme Court -- with a quasi-constitutional "lawfare" operation consisting of fake electors, counterfeit elector certificates of ascertainment, and invocation of the Electoral Count Act of 1877.

wayne madesen report logowayne madsen fourth reich coverCombined, these actions, code named GREEN BAY SWEEP by its conspirators, would have not only placed the United States under martial law after Trump's implementation of dictatorial powers under the Insurrection Act but would have implemented minority white rule in the fashion of Rhodesia and apartheid South Africa.

GREEN BAY SWEEP was predicated on millions of votes for the Democratic presidential ticket being nullified by Trump electors in six states -- Georgia, Michigan, Pennsylvania, Wisconsin, Arizona, and Nevada. Previously certified electors pledged to Joe Biden and Kamala Harris would have been supplanted by electors pledged to the Trump-Pence ticket. Many of the Trump electors were sitting Republican members of the legislatures of the six states involved, plus New Mexico, in the electoral subterfuge plot.

Jan. 19

 supreme court headshots 2019

ny times logoNew York Times, In Rebuke to Trump, Supreme Court Won’t Block Release of Jan. 6 Files, Adam Liptak, Jan. 19, 2022. The case was a constitutional clash on the scope of executive privilege and whether a former president may invoke it when the current one has waived it.

The Supreme Court on Wednesday refused a request from former President Donald J. Trump to block the release of White House records concerning the Jan. 6 attack on the Capitol.

Clarence Thomas HROnly Justice Clarence Thomas, right, noted a dissent.

A special House committee investigating the attack sought the records from the National Archives, which gave both President Biden and Mr. Trump the opportunity to object.

Mr. Trump invoked executive privilege, a doctrine meant to protect the confidentiality of presidential communications, over some of the documents.

“Congress may not rifle through the confidential, presidential papers of a former president to meet political objectives or advance a case study,” his lawyers told the justices in an emergency application.

“These sweeping requests are indicative of the committee’s broad investigation of a political foe, divorced from any of Congress’s legislative functions,” the application said.

djt impeachment graphicMr. Biden took a different view in October in declining to assert executive privilege over some of the materials.

“Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them, and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the president’s constitutional responsibilities,” wrote Dana Remus, the White House counsel.

She added that executive privilege should not be employed to protect “information that reflects a clear and apparent effort to subvert the Constitution itself.”

Mr. Trump told the justices that he had a constitutional right to shield the materials from Congress even though Mr. Biden declined to invoke executive privilege over them.

“The disagreement between an incumbent president and his predecessor from a rival political party,” Mr. Trump’s lawyers told the court, “is both novel and highlights the importance of executive privilege and the ability of presidents and their advisers to reliably make and receive full and frank advice, without concern that communications will be publicly released to meet a political objective.”

Lawyers for the House committee responded that the Supreme Court should not thwart its inquiry. “The select committee’s work,” they wrote, “is of the highest importance and urgency: investigating one of the darkest episodes in our nation’s history, a deadly assault on the United States Capitol and Congress, and an unprecedented disruption of the peaceful transfer of power from one president to the next.”

 

djt oct 7 2020 twitter

washington post logoWashington Post, N.Y. attorney general alleges Trump’s business inflated property values, wealth statements, Shayna Jacobs, Jonathan O'Connell and Josh Dawsey, Jan. 19, 2022. New York Attorney General Letitia James alleged on Tuesday that former president Donald Trump’s business inflated the value of his properties and misstated his personal worth in representations to lenders, insurance brokers and other players in his real estate empire.

James, right, a Democrat who is leading a civil probe into Trump and his business, spelled out the claims in a court filing late Tuesday that was offered in support of her bid to see Trump and his adult children deposed under oath.

letitia james resized o headshotIn the nearly 160-page document, James cited examples of Trump (shown above at the White House in a file photo) allegedly lending his signature to financial statements that estimated the worth of properties in the Trump Organization portfolio and the value of his own fortune — estimates that James’s team has long suggested were misleading and potentially key to taking legal action against the Manhattan-based company.

“Donald Trump, Donald Trump, Jr., and Ivanka Trump have all been closely involved in the transactions in question, so we won’t tolerate their attempts to evade testifying in this investigation,” James said in a statement released Tuesday night along with the documents.

James said that the trio’s testimony is necessary to advance a probe that is based on at least 900,000 documents obtained from the Trump Organization, interviews with employees and other evidence.

The filings were in response to a motion to quash subpoenas to the three Trumps that demanded they sit for depositions and produce related records. Eric Trump, who along with his siblings has served as a high-ranking officer at the company, was deposed in late 2020.

Trump Organization attorney Alan Futerfas, who is representing Donald Trump Jr. and Ivanka Trump in this matter, argued that the subpoenas violate the constitutional rights of the family, which is also under criminal investigation in New York by the Manhattan district attorney.

 

Trump children Eric Trump, left, Ivanka Trump and Donald Trump Jr. at the White House.Trump children Eric Trump, left, Ivanka Trump and Donald Trump Jr. in a file photo taken at the White House during the Trump presidency.

Palmer Report, Opinion: Court filing from New York AG Letitia James is devastating for Donald Trump, Ivanka Trump, Donald Trump Jr., bill palmerBill Palmer, right, Jan. 19, 2022. Late last night New York Attorney General Letitia James revealed a court filing in her ongoing civil case against the Trump Organization. The filing was for the official purpose of asking the courts to force Donald Trump, Ivanka Trump, and Donald Trump Jr. to testify about the Trump Organization in the civil case. But it’s what James revealed about the evidence in the case that serves as the real story.

bill palmer report logo headerIn making her argument for why the court should compel their testimony, James announced that she has “significant evidence” that Donald Trump, Ivanka Trump, and Donald Trump Jr. falsified the values of Trump Organization properties for loan, insurance, and tax purposes. To be clear, these would be felonies.

This is just a civil case. But James and the Manhattan District Attorney are also jointly running a related criminal investigation into Donald Trump, which has already led to criminal charges against Allen Weisselberg and the Trump Organization. So if James has evidence of criminal acts by multiple Trump family members, it’s a near certainty that she’s already provided this evidence to the Manhattan DA, and that Donald Trump, Ivanka Trump, and Donald Trump Jr. will be criminally indicted.

This in addition to the near certainty that James will use the “significant evidence” she has to assert massive civil penalties against the Trump Organization, and to seize its assets to cover those penalties if needed.

Even if the Trumps try to dodge testifying in the civil case by invoking the Fifth Amendment, James can still use their refusal to testify as a basis for concluding that the Trump Organization is culpable. And while pleading the fifth is not considered an indicator of guilt in any criminal charges that end up getting brought, James says she already has the evidence that the Trumps committed these financial crimes anyway. The Trumps simply have no magic wands for getting off the hook at this point.

Palmer Report, Analysis: The New York AG just put Ivanka Trump right in the center of the Trump Organization’s Deutsche Bank scandal, Bill Palmer,  Jan. 19, 2022. Last night New York Attorney General Letitia James formally asked the courts to compel Donald Trump, Ivanka Trump, right, and Donald Trump Jr. ivanka trump twitter portraitto testify in her civil probe into the Trump Organization. In that filing, James stated that she has “significant evidence” that the three of them falsified asset valuations for loan, insurance, and tax purposes.

bill palmer report logo headerNotably, these would be felonies if proven true – and James just happens to also have a Trump criminal case in conjunction with the Manhattan District Attorney. So it seems a given at this point that the three of them will be criminally indicted on charges along the lines of loan, insurance, and tax fraud. But now one key detail in the court filing is jumping off the page.

Various individuals across social media have spotted this in the publicly available text of Letitia James’ court filing, in item #365: “While at the Trump Organization Ivanka Trump, along with Allen Weisselberg, was the primary point of contact for representatives of Deutsche bank.”

deutsche bank logoThis is a big deal because it appears to single out Ivanka Trump as being the member of the Trump family who dealt with Deutsche Bank the most directly – and it’s long been alleged that the Trump Organization’s biggest financial fraud was in relation to its famously sketchy Deutsche Bank loans.

If we all thought Ivanka Trump was on the hot seat last night when the New York Attorney General announced that she has “significant evidence” that Ivanka and her family committed financial fraud, then Ivanka is on a nuclear hot seat if the NY AG views her as having been the most directly responsible for the alleged fraud involving Deutsche Bank.

Jan. 16

 

supreme court Custom

washington post logoWashington Post, Opinion: The Supreme Court gives itself what it bans for the rest of us, Ruth Marcus, Jan. 16, 2022 (print ed.). How nice for the Supreme ruth marcus twitter CustomCourt. It can take the precautions it deems necessary to keep its workplace safe.

The court has been effectively closed to outside visitors since the start of the pandemic. Now that the justices have begun hearing oral arguments in person, the lawyers appearing before it, and the reporters in the chamber, must test negative and be masked, except when speaking. Justices who aren’t comfortable with those protocols — or with the maskless behavior of their colleagues — have the flexibility to work remotely.
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If only the court were willing to extend similar protections to the rest of us, in our workplaces. Or to be more precise, not to interfere with the Occupational Safety and Health Administration’s effort to provide such protections.

The factory workers standing cheek by jowl on assembly lines, the office workers crammed side by side at their cubicles, the cashiers and sales clerks at retail establishments — none of them enjoy the guaranteed safety protocols that the court has awarded to itself.

If their job requires that they show up in person, they are, in many states, at the mercy of their employers if their co-workers choose not to be vaccinated or to wear masks. In states with laws that prohibit vaccine and mask mandates, employers who want to adopt such policies are prohibited from doing so.

The court’s 6-to-3 ruling Thursday blocking the Biden administration’s vaccine-or-test mandate is yet another example of the elite playing by one set of rules while applying a different standard to the masses — Boris Johnson-ism, but worse. In that case, the British prime minister partied away in defiance of rules imposed on lesser mortals. In this one, the justices declined to extend the same protections to others that they grant themselves.

This let-them-breathe-covid attitude would be more understandable if the pandemic were not so serious — or the law that the administration relied on in issuing the mandate were less sweeping.

Of course, people can contract covid anywhere. But as OSHA explained in issuing the mandate, “during the workday, while under the control of their employer, workers may have little ability to limit contact with coworkers, clients, members of the public, patients, and others, any one of whom could represent a source of exposure. … OSHA has a mandate to protect employees from hazards they are exposed to at work, even if they may be exposed to similar hazards outside of work.”

OSHA estimates that its mandate, had it been allowed to continue, would have saved more than 6,500 lives and prevented more than 250,000 hospitalizations over six months.

In substituting its judgment for OSHA’s, the conservative majority noted the unprecedented nature of the mandate, which would have covered 84 million workers. “This is no ‘everyday exercise of federal power,’ ” it said, quoting an appeals court judge who voted to block the rule. “It is instead a significant encroachment into the lives — and health — of a vast number of employees. “

Jan. 14

washington post logoWashington Post, Opinion: Guantanamo’s prison stumps presidents. Biden can close it, Ramzi Kassem, Jan. 14, 2022. Quiet developments in Washington give me hope.

Twenty years ago this month, the first plane full of prisoners touched down at the U.S. Naval Station at Guantánamo Bay, Cuba. A widely circulated image showed the first 20 prisoners — Muslim men and boys, almost all of them brown- and black-skinned — kneeling on the gravel under the tropical sun in orange jumpsuits, shackles, earmuffs and blackout goggles. The picture signaled to the home audience that America was getting payback for the events of Sept. 11, 2001, and it sent a chilling message to those not “with us,” to quote President George W. Bush — those whom he deemed to be “with the terrorists.”

Two decades on, the semantic and symbolic value of Guantánamo has morphed considerably. Few public figures still proclaim the falsehood that the 779 prisoners held there over the years were “the worst of the worst.” The prison is forever tainted by confirmed accounts of torture. It’s no surprise, then, that multiple presidents have expressed the intention to close it — yet none have followed through.

I hope it will be different this time, and there are reasons to be optimistic. President Biden, who said on the campaign trail that he wanted to shutter the prison, has repatriated one detainee while quietly clearing more than a dozen of the 39 others for release through the interagency Periodic Review Board. These clearances are significant because, even though they don’t guarantee release, they flow from discussions and decisions at senior levels of the federal agencies with a stake in national security affairs, including the Departments of Defense, State, Justice and Homeland Security. Under the Trump administration, that same body issued its decisions sporadically and almost always in favor of continued detention.

The United States has long sought to exploit Guantánamo’s legal contradictions

But at the rate of one prisoner transfer per year, Biden won’t come close to shutting Guantánamo, even if he wins a second term. If he allows higher policy priorities such as the pandemic and the economy, or the fear of backlash in the upcoming midterm elections, to distract him from this important objective, he could fail just as his predecessors did, and neither our country nor the rest of the world can afford to let that happen.

Ramzi Kassem is a professor at CUNY School of Law, where he directs the CLEAR project. With his students, Kassem has represented 14 Guantánamo prisoners, with two remaining at the prison today. He is a non-resident fellow of the Quincy Institute for Responsible Statecraft and, in 2020, was named a Freedom Scholar by the Marguerite Casey Foundation.

Jan. 9

washington post logoWashington Post, Opinion: Chief Justice Roberts’s jarring vaccine jurisprudence, Ruth Marcus, right, Jan. 9, 2022. In one of the more jarring moments in ruth marcus twitter CustomFriday’s oral arguments about the Biden administration’s efforts to mitigate covid-19, Chief Justice John G. Roberts Jr. seemed to be arguing that trying to use all the statutory tools available to it somehow undermined the government’s legal argument.

“You said just a short while ago that … covid presented a grave danger to people in the workplace,” Roberts told Biden Solicitor General Elizabeth B. Prelogar, who was arguing in favor of the Occupational Safety and Health Administration’s vaccine or testing mandate. "It seems to me that it’s that the government is trying to work across the waterfront and that it’s going agency by agency.”

This is supposed to be a bad thing? I thought conservatives cared about statutory language and whether the text of the law authorized the action at issue. The chief justice is the most reasonable of the court’s conservatives, but his logic here seems upside down: The government gets marked down for trying too hard.

john roberts oPrelogar pushed back at Roberts, left. “What we’re trying to do here and what OSHA did was rely on its express statutory authority to provide protection to America’s workforce from grave dangers like this one,” she said. “So I take the point and don’t dispute that covid-19 is a danger in many contexts and falls within the jurisdiction of other agencies as well, but I think to suggest that because this disease is so prevalent, because it presents such a widespread harm, somehow OSHA has less power to do anything about it …”

At which point Roberts interrupted and showed his real hand: There’s just too much darned regulating going on here. “It sounds like the sort of thing that states will be responding to or should be and that Congress should be responding to,” he said.

Earth to chief justice. States are responding — some responsibly, too many others in precisely the wrong way, preventing employers from taking steps to protect their workers. And covid doesn’t stop at state borders; it is a national problem, amenable to national solutions under the constitutional power to regulate interstate commerce, among other authorities.

As to the role of Congress, as Prelogar pointed out, it has spoken. It created OSHA in a broadly worded law whose textual application to the situation at hand Roberts did not dispute.

Instead, he switched to another novel argument: that laws, or maybe only laws that give agencies regulatory authority, have some kind of sell-by date. “You know, that was 50 years ago that you’re saying Congress acted,” he told Prelogar. “I don’t think it had covid in mind. That was almost closer to the Spanish flu than it is to today’s problem.”

And this matters because …? The authority provided by a broadly worded statute doesn’t run out as the law ages. Laws don’t stop mattering just because they’re old. There are any number of laws giving federal agencies broad authority to regulate issues and technologies that their drafters could scarcely have imagined

Jan. 8

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

washington post logoWashington Post, Opinion: How blocking Biden’s vaccine mandate would be a Supreme Court gift to Trump, James Hohmann, Jan. 8, 2022. When Donald Trump took office five years ago, White House chief strategist Stephen K. Bannon vowed that the new president would wage an unending battle for the “deconstruction of the administrative state.”

The Supreme Court’s apparent readiness to block President Biden’s vaccine mandate for large companies, which will otherwise go into effect Monday, underscores the likelihood that Trump’s legacy, by remaking the judiciary, will include declawing the federal bureaucracy and hollowing out its regulatory authorities.

In 1970, Congress passed — and President Richard M. Nixon signed — the law creating the Occupational Safety and Health Administration (OSHA). This was 52 years after the flu pandemic of 1918. Coincidentally, it was also 52 years before the Supreme Court heard oral arguments on Friday on whether that agency has the power amid another once-in-a-century pandemic to require vaccinations at U.S. businesses with more than 100 employees.

The six conservative justices, including the three nominated by Trump, sounded skeptical of what they portrayed as the Biden administration’s over-reliance on that 1970 statute, which didn’t explicitly envision the need for vaccine mandates, to enact a requirement that would affect 80 million workers. Justice Samuel A. Alito Jr. suggested, for example, that Biden is “trying to squeeze an elephant into a mouse hole.”

Justice Neil M. Gorsuch said that states and Congress, as the most direct representatives of the people, must decide whether they want to compel vaccination. Gorsuch, who didn’t wear a mask on the bench on Friday, emphasized that Congress has had more than a year to pass a law requiring vaccinations, without doing so. On the other hand, multiple red states have banned employers from mandating vaccination.

Justice Brett M. Kavanaugh noted that people warned of a pandemic for years and said the legislative branch chose not to prepare by passing laws that would have given more powers to address the current crisis.

Justice Amy Coney Barrett suggested that the Biden administration’s requirements should have been more narrowly tailored to specific industries or types of jobs. Barrett predicted covid-19 will still be with us two years from now and wondered: “When does the ‘emergency’ end?”
Image without a caption

Solicitor General Elizabeth B. Prelogar, representing the Biden administration, told the justices that they are wrong to pretend Congress must renew authorities that have already been deferred to the executive branch, in this case to protect workers from “grave risk.” Covid “is the biggest threat to workers in OSHA’s history,” Prelogar said.

This gets to the nub of a deeper ideological dispute that reflects how the court is changing. It involves a lot more than OSHA or the polarized politics of vaccination. The unusual 3½ hours of arguments felt like the culmination of a multi-decade effort to tie the hands of a range of career civil servants inside alphabet-soup agencies such as the Environmental Protection Agency.

“Those numbers show that omicron is as deadly and causes as much serious disease in the unvaccinated as delta did. … We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”

— Justice Sonia Sotomayor, during oral argument at the Supreme Court, Jan. 7

washington post logoWashington Post, Fact Checker Analysis: Sotomayor’s false claim that ‘over 100,000’ children are in 'serious condition’ with covid, Glenn Kessler, Jan. 8, 2022. Several readers questioned these remarks by Sotomayor, made during a hearing on whether the Biden administration’s nationwide rules ordering a vaccination-or-testing requirement on large employers were constitutional. Her remarks came during an exchange with Ben Flowers, Ohio’s solicitor general, as he referred to a brief filed by the American Commitment Foundation, which argued that the rise of the omicron variant had made the vaccine rules less relevant because vaccines do not appear especially effective against it.

(We will not address remarks made by Justice Neil M. Gorsuch, which some readers also thought were wrong. The official court transcript suggested he had made an inflated statement about the annual flu: “Flu kills — I believe — hundreds of thousands of people every year.” The flu kills between 12,000 and 52,000 people in the United States a year, but the audio of the argument shows Gorsuch actually said that “flu kills, I believe, hundreds, thousands of people every year.” So the transcript is incorrect.)

sonia sotomayor in scotus robe1The brief in question sought to update the court on latest scientific and technical information on the omicron variant, as that had emerged with force after the mandate was proposed. Epidemiologists Jay Bhattacharya of Stanford University and Andrew Bostom, who says he is affiliated with Brown University, helped advise on it.

That’s wildly incorrect, assuming she is referring to hospitalizations, given the reference to ventilators. According to HHS data, as of Jan. 8 there are about 5,000 children hospitalized in a pediatric bed, either with suspected covid or a confirmed laboratory test. This figure includes patients in observation beds. So Sotomayor’s number is at least 20 times higher than reality, even before you determine how many are in “serious condition.”

Moreover, according to the Centers for Disease Control and Prevention, there have been less than 100,000 — 82,843 to be exact — hospital admissions of children confirmed with covid since Aug. 1, 2020.

Still, the current seven-day average (Dec. 30-Jan. 5) is 797, which is a sharp increase from the week before (441) and represents the peak seven-day average for children, the CDC said. So Sotomayor is not wrong to suggest the rate of pediatric admissions is cause for concern. On Monday, the American Academy of Pediatrics reported a sharp rise in pediatric cases, with many of the children unvaccinated. (Some children are hospitalized for other reasons and then test positive for covid through screenings at the hospital.)

It’s important for Supreme Court justices to make rulings based on correct data. There has been a spike in pediatric cases with covid, even if the omicron variant appears less deadly. But Sotomayor during an oral argument offered a figure — 100,000 children in “serious condition … many on ventilators” — that is absurdly high.

Jan. 7

washington post logoWashington Post, Supreme Court’s conservatives seem skeptical of workplace vaccination rules, Robert Barnes and Ann E. Marimow, Jan. 7, 2022. The justices heard Republican-led challenges to White House policies affecting nearly 100 million people.

Conservative Supreme Court justices on Friday appeared skeptical that the Biden administration has legal authority to impose a broad vaccination-or-testing requirement on large employers, casting doubt on President Biden’s most ambitious plan to fight the pandemic.

But there was a different reaction to the administration’s vaccine mandate for health-care personnel that receive federal Medicaid and Medicare funds. Some of the justices who expressed doubt about the general workplace requirements seemed more receptive to the idea that health-care workers could be required to get vaccinated.

The court’s decision could come quickly — it is considering emergency petitions to either allow the regulations to go into effect or stop them.

The court spent three and half hours in a highly unusual hearing on the emergency requests. The workplace rule is proposed by the Occupational Safety and Health Administration (OSHA) and would cover about 80 million workers. The other would cover about 17 million health-care workers.

washington post logoWashington Post, Opinion: Where was Justice Neil Gorsuch’s mask?, Ruth Marcus, right, Jan. 7, 2022. Where was Justice Neil M. Gorsuch’s mask? If you ruth marcusthink this sounds like a trivial question, I dissent. I believe it goes to the heart of our fraying social fabric.

When the Supreme Court justices took their seats Friday morning to hear oral arguments in two cases challenging the Biden administration’s covid rules, seven of the justices wore masks — a change in their previous behavior prompted, no doubt, by the emergence of an new infectious strain.

One justice, Sonia Sotomayor, who had previously been the only justice to wear a mask on the bench, participated remotely from her chambers. Sotomayor has diabetes, which is a risk factor for more severe illness with covid. She also is, or would have been, Gorsuch’s seat mate for the nearly four-hour-long argument session.

neil gorsuch headshotThe court, having resumed in-person arguments, retains strict limits on who can attend and strict rules for those allowed inside the chamber. Reporters and lawyers must wear masks — N95 masks, not the less-effective cloth variety — and test negative for covid. In fact, two of the lawyers who argued against the Biden administration’s vaccine mandates had to do so remotely after testing positive. And instead of being crammed cheek by jowl in the press section, reporters, along with the justices’ law clerks, are spaced throughout the otherwise-empty chamber.

These rules and practices all make sense for the court (where five justices, including Sotomayor, are over 65) and for the public. Indeed, they offer a model for responsible workplace behavior in an age of omicron.

Which brings me to the question: Where was Gorsuch’s mask?

I put that question to the court’s public information office. No response to that, or to a question about whether Gorsuch’s masklessness had something to do with Sotomayor’s decision to absent herself.

But Mike Davis, Gorsuch’s former law clerk, as well as founder and president of the Article III Project, which lobbied to confirm President Donald Trump’s judges, responded this way on Twitter: “Every justice is vaccinated and boosted. Don’t vaccines work? We know cloth masks don’t.”

Oh, please. Yes, vaccines work. They protect against serious illness and greatly reduce the risk of hospitalization and death. They work less well, given the contagiousness of the omicron variant, to prevent breakthrough infections.

Wearing a mask is the decent thing to do — especially when you are around vulnerable individuals. This is true even if it is not required, as it would be if Gorsuch, above, were to pop into the grocery store to pick up some milk on his way home, or if he were to be in an ordinary workplace in the District.

The sad part here is that Gorsuch is more emblem than outlier. The pandemic has brought out the best in some of us, but the worst — the most selfish and irresponsible — in too many others. This “you’re not the boss of me” immaturity has made a difficult period even harder.

Jan. 1

 

supreme court Custom

washington post logoWashington Post, Roberts says federal judiciary has some issues but doesn’t need congressional intervention, Robert Barnes, Jan. 1, 2022 (print ed.). In his year-end report, Chief Justice John G. Roberts Jr. acknowledged concerns about ethical conflicts among judges and workplace discrimination within the judiciary.

john roberts oChief Justice John G. Roberts Jr., right, acknowledged in a report released Friday that the federal judiciary has work to do in ensuring that judges live up to their ethical responsibilities and in creating a harassment-free workplace.

But he politely told Congress it is work that judges can do on their own.

In his 2021 Year-End Report on the Federal Judiciary, the chief justice did not mention President Biden’s commission on reforming the Supreme Court or react to nascent congressional proposals to make drastic changes, such as expanding the number of justices or ending their lifetime tenure.

But he said the judiciary’s independence is best maintained by remaining free of interference from the political branches.

“The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government,” Roberts wrote.

In the report, Roberts addressed “topics that have been flagged by Congress and the press over the past year.” Those included the failure of some judges to recuse themselves from cases in which they had a financial interest, and concerns about how the judiciary handles allegations of workplace harassment and discrimination.

Roberts referred to articles in the Wall Street Journal that said “between 2010 and 2018, 131 federal judges participated in a total of 685 matters involving companies in which they or their families owned shares of stock.”

He said that was “inconsistent” with a federal ethics statute that requires a judge to recuse in any matter in which he or she knows of a personal financial interest.

“Let me be crystal clear: the Judiciary takes this matter seriously,” Roberts wrote. “We expect judges to adhere to the highest standards, and those judges violated an ethics rule.”

But, he said, in context, that meant the judiciary had a “99.97% compliance rate.”

“For most of the judges involved (a total of 83 of the 131), the Journal reported one or two lapses over the nine-year period,” Roberts wrote. “Those sorts of isolated violations likely entailed unintentional oversights in which the judge’s conflict-checking procedures failed to reveal the financial conflict.”

Roberts said congressional intervention was not needed. The Judicial Conference and the Administrative Office of the U.S. Courts will dedicate themselves in the coming months to increasing ethics training for judges and researching new computer programs to detect potential conflicts in the cases that come before judges.

“The bottom line is that the Conference is taking the concerns seriously and has committed itself to the careful labor of addressing them,” he wrote. The Journal reported that Roberts said he had “serious constitutional concerns” about proposed accountability legislation in 2018.

Roberts defends colleagues on recusal issues

Supreme Court justices are not covered by the same ethics policies, although the justices have said they voluntarily comply with them. Roberts is one of three justices — Stephen G. Breyer and Samuel A. Alito Jr. are the others — who own individual stocks. They recuse from cases, or sometimes sell the stock in order to participate, but they too have missed some cases.

The chief justice also acknowledged concerns about how the federal judiciary handles allegations of harassment and discrimination. He detailed steps that the judiciary’s leaders have taken to improve its reporting system, including the expansion of the Office of Judicial Integrity and the hiring of workplace relations directors in each of the federal circuits.

 

December

Dec. 31

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

ny times logoNew York Times, Opinion: Do We Have the Supreme Court We Deserve? Linda Greenhouse (shown at right on the cover of her memoir), Dec. 31, 2021 (print ed.). When I left the daily Supreme linda greenhouse cover just a journalistCourt beat back in 2008, the Week in Review, as The Times’s Sunday Review section was then called, invited me to offer some reflections on nearly 30 years of writing about the court, its cases and its members. The long essay ran under the headline “2,691 Decisions,” a number based on an editor’s calculation of how many decisions the court had issued during my time on the beat. I ended it with an observation about the “vital dialogue” between the court and the country. This was my conclusion:

“The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve.”

A friend who recently came upon that article challenged me. “Do you still think we have the Supreme Court we deserve?” she asked.

Actually, sadly, my answer now is no.

It’s not that I think the country simply deserves a Supreme Court that happens to agree with me; I was finding plenty to disagree with back in 2008. Justice Samuel Alito had taken Justice Sandra Day O’Connor’s place in early 2006, wrenching the closely divided court to the right. In June 2007, Justice Stephen Breyer, during an impassioned oral dissent in a highly charged case on what measures public school systems can take to maintain racial diversity, lamented that “it is not often in the law that so few have so quickly changed so much.”

Nonetheless, Justices John Paul Stevens, Anthony Kennedy and David Souter were still on the bench in 2008, proving every day that to be a Republican-nominated Supreme Court justice was not necessarily to be a handpicked conservative spear-carrier in the country’s culture wars. (The three were chosen by Gerald Ford, Ronald Reagan and George H.W. Bush respectively.) It had not occurred to anyone then that a hostile Senate in 2016 might keep a president’s Supreme Court nomination bottled up for 11 months without even a hearing, nor that a supine Senate would do a subsequent president’s bidding four years later and bludgeon a nomination through to confirmation while millions of Americans were already casting early ballots for president.

In short, we are in a different place now than we were in 2008, and the current term finds the court in a danger zone as a willing — and willful — participant in a war for the soul of the country. Last term’s cavalier treatment, in a case from Arizona, of what remains of the Voting Rights Act sent a frightening signal about whether the court can be counted on to protect democracy from the Republican-led assault now taking place before our eyes. We now have justices apparently untroubled by process and precedent, let alone appearances: Let’s not forget that two of Donald Trump’s three appointments arrived under debatable circumstances, with Justice Neil Gorsuch taking a seat in 2017 that was Barack Obama’s to fill and Justice Amy Coney Barrett being jammed through to confirmation late in 2020.

washington post logoWashington Post, Opinion: Mitch McConnell’s un-conservative plea to the Supreme Court, Ruth Marcus, right, Dec. 31, 2021 (print ed.). Spare me the ruth marcusRepublican pieties about the horror of activist judges legislating from the bench. These days, judicial activism in the service of conservative causes is not just acceptable — it’s openly encouraged. Witness a new Supreme Court brief from Senate Minority Leader Mitch McConnell (R-Ky.).

The brief comes in a case involving Sen. Ted Cruz (R-Tex.), challenging an obscure provision of federal election law that bars candidates who lend their campaigns funds to get elected from raising more than $250,000 after the election to pay themselves back — the theory being that post-election fundraising is less about engaging in political speech and more about currying political favor.

The day before his 2018 Senate election, Cruz lent his campaign $260,000 — not because it needed the money (it had more than $2 million cash on hand) but because, he openly acknowledges, he wanted to set up a challenge to the repayment provision. Cruz argues that the law violates the First Amendment, stifling candidates’ political speech by deterring them from lending to their own campaigns.

The Federal Election Commission, defending the provision, contends that Cruz has no standing to contest it because, among other things, he created the problem himself. “Senator Cruz’s injury is self-inflicted, since he and his campaign deliberately arranged their transactions so as to create a legal barrier to full repayment of the loan,” Solicitor General Elizabeth Prelogar told the court. In any event, she said, “the loan-repayment limit imposes at most a modest burden on the right to make and accept contributions.”

The case, to be argued Jan. 19, offers a particularly vivid illustration of the conservative mania to undo even the most inoffensive campaign finance restrictions. But the McConnell brief, authored by former Trump White House counsel Donald McGahn and former Trump administration solicitor general Noel Francisco, is notable for a different and more alarming reason: There is, it seems, no argument too extreme for this crowd in their effort to reshape the law to their liking.

They urge the court to use this case not simply to strike down the loan repayment provision but also to junk what is left of the 2002 Bipartisan Campaign Reform Act (BCRA), also known as McCain-Feingold. Encouraging the court to en

Dec. 30

 

ghislaine maxwell jeffrey epstein porchSex trafficking defendant Ghislaine Maxwell, right, in an undated photo with her onetime lover and boss Jeffrey Epstein (Photo submitted to jury by U.S. Department of Justice).

vicky ward investigates

Vicky Ward Investigates, Maxwell Unfiltered: The Full Transcript from My 2002 Interview with Ghislaine Maxwell, Vicky Ward, Dec. 30, 2021. Vicky Ward, shown above, is a journalist working at the intersection of power, money and corruption. She has been a New York Times bestselling author, is working on her fourth book and is host and reporter of "Chasing Ghislaine" streaming on Audible / Discovery.

So, it’s over. This chapter of the Jeffrey Epstein saga, at least. Ghislaine Maxwell has been convicted on five counts out of six charges that constitute hideous sex crimes against children. She was reportedly emotionless as she heard the verdict. The mystery is what is going on inside her head.

We never got to hear from Maxwell herself this whole trial. Her defense’s strategy was to undermine the credibility of the accusers, not to explain her narrative.

So I went back and looked over the transcript of my 2002 interview with Maxwell about Maria and Annie Farmer, the latter who so bravely testified a couple of weeks ago. It was the one and only conversation I had with her on the topic of Annie and Maria Farmer.

It’s very revealing because it tells us—in her own words—who Maxwell really is and what she values. (It also shows that she lied to me about not giving Annie Farmer a massage.)

Here, for the first time, is our conversation, which was transcribed from micro-cassettes by a professional transcription service. The only redaction is the name of an employee who worked at Zorro Ranch, Epstein’s home in New Mexico.

WARD: Hi.

MAXWELL: Hi. Listen, I just got faxed something from the fact checker at Vanity Fair...the implication of which is so outrageous and disgusting to me that I cannot understand for the life of me why you would put something like that in it and not even [Overlap/Inaudible]

....

MAXWELL: Okay. Terrific. Bye.

WARD: Okay. Bye.

So, there you have it—in full, just as Maxwell insisted.

Her false denials condemn her almost as much as the credible testimony of Annie Farmer, which I believed then as now and which was entitled to be told, and all the others.

After my call with Maxwell, I submitted the story to my bosses at Vanity Fair—with the Farmers' description of events and a general denial from Epstein and Maxwell included. I did my journalistic duty: telling both sides of this ugly story. As I was taught from Day 1, journalism lets the readers to decide.

But Vanity Fair had other plans.

There was no subsequent conversation between Maxwell and myself because, shortly after my interview with the Farmer sisters and the follow-up with Maxwell, Epstein paid a visit to Graydon Carter at the Vanity Fair offices, and the Farmers’ allegations were cut from my article and a subsequent blog—to my eternal regret. I have felt deeply for the Farmers ever since. (Carter has said I didn’t have sufficient reporting. I disagree.)

But what this conversation shows is Maxwell’s entitlement—and her belief that money trumps all. It was “crazy” that I could believe strangers over her and report the on-record allegations. It was also outrageous to think she would have time to give people massages. And how lucky these two girls were to benefit from Epstein’s generosity.

Right there, in this conversation is everything you need to know. This is the narrative that was missing from the courtroom these past weeks, but it does validate the jury’s verdict.

“Use your common sense,” AUSA Maurene Comey had told the jury during her closing arguments.

Apparently, they did.

Vicky Ward's documentary series “Chasing Ghislaine” (based on her Audible podcast of the same name) started streaming on discovery+ on November 22nd and has been be available on DiscoveryID since Dec. 3. She has been a senior reporter at CNN, the editor at large of HuffPost and HuffPost’s long-form magazine, Highline, as well as at Town & Country magazine. I was also a contributor to Esquire, a contributing editor to Vanity Fair for eleven years, and a columnist for the London Evening Standard. In June 2020, she joined the Council on Foreign Relations. Her most recent book — Kushner, Inc.: Greed. Ambition. Corruption. The Extraordinary Story of Jared Kushner and Ivanka Trump (St. Martin’s Press, 2019) — was an instant New York Times bestseller.

Dec. 29

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

washington post logoWashington Post, Opinion: The Supreme Court must uphold Biden’s vaccine mandates — and fast, Lawrence O. Gostin, Jeffrey E. Harris and Dorit Rubinstein Reiss (prominent professors), Dec. 29, 2021.

President Biden’s emergency covid-19 mandates have faced an avalanche of legal challenges. Two of those mandates — the Occupational Safety and Health Administration’s rule that businesses with 100 or more employees must require workers to be fully vaccinated or regularly tested and the Centers for Medicare and Medicaid Services’ regulation requiring vaccinations for staff at health-care facilities — will soon face scrutiny from the Supreme Court.

The Supreme Court needs to uphold the president’s mandates without delay. Not doing so would be an affront to public health and the law.

Lower-court rulings that blocked the rules from taking effect were fundamentally flawed. (The president’s executive order requiring federal contractors to have a fully vaccinated workforce is currently blocked by courts in Kentucky and Georgia, but is not yet before the Supreme Court). They disregarded the broad scientific consensus that covid-19 poses a major public health threat requiring a strong emergency response; indeed, the public health emergency has only become more acute in recent weeks. The omicron variant is rising exponentially across the nation, pushing the hospital system beyond its capacity. More than 1,400 Americans are dying every day from covid-19. The justices need to weigh this grim reality.

A threshold issue is whether covid-19 is a public health emergency that warrants bypassing the usual cumbersome regulatory process. For the employer mandate, OSHA issued an emergency standard which can be implemented rapidly. For the rule involving health-care workers, CMS waived the normal period for taking public comment into consideration before issuing final regulations, a process that can take months if not years. Both had good reason for acting swiftly.

OSHA conservatively estimated its new rule would prevent more than 6,500 deaths and 250,000 hospitalizations. CMS established an impressive record showing the unique vulnerability of Medicare and Medicaid recipients, who are older, disabled, chronically ill or have complex health-care needs. The rule can save hundreds of lives each month. The science is also clear that the vaccine is the best way to ameliorate risks of covid-19 infections, hospitalizations and deaths. Delaying the implementation of the rules would cost lives.

At the core of these cases is the claim that Congress has not clearly authorized OSHA and CMS to safeguard workers. That’s incorrect. The Occupational Safety and Health Act empowers OSHA to mitigate “grave” workplace dangers through emergency measures. OSHA has required the only effective tools known to science: vaccines, testing and masks. Vaccination is the best tool, but OSHA allows employees to opt-out simply by testing weekly and masking. It’s hardly an overreach. In fact, regulating biological hazards is among OSHA’s primary responsibilities. The agency has a long history of regulating protections against airborne and bloodborne pathogens.

Likewise, when Congress established the Medicare and Medicaid programs, it granted the secretary of health and human services authority to require facilities to meet requirements deemed “necessary in the interest of the health and safety.” There are ample reasons to support the conclusion that vaccinations are necessary for the safe operation of participating facilities: the vulnerability of residents, the need for a healthy workforce and the unique effectiveness of vaccines.

There are good reasons Congress has chosen to delegate broad regulatory powers to agencies. Congress cannot foresee the broad range of risks Americans will face. Nor does Congress have the expertise or access to rapidly changing and complex scientific information needed to make wise regulatory decisions. Career agency professionals have the expertise — and can act more quickly with more flexibility — than the legislative process allows. The need to act rapidly is especially important in a health emergency. If the high court were to curb federal public health powers now, it could prove ruinous when the next crisis strikes.

The Supreme Court has a long history of upholding vaccination mandates, beginning with its seminal 1905 decision upholding smallpox vaccination and continuing with its 1944 ruling on the lawfulness of childhood vaccinations for school entry. Recently, the Supreme Court let stand a New York coronavirus vaccine mandate for health-care workers, even though it provided no religious exemption.

But these are all municipal or state mandates, and the court has been far more reticent to uphold federal health powers — for example, striking down the Centers for Disease Control and Prevention’s covid-19 eviction moratorium. The CDC arguably overreached with the moratorium, but regulating workplace safety is core to OSHA’s mission, as is regulating health-care safety to CMS.

A dire emergency is not the time to overturn decades of jurisprudence empowering federal agencies to act in the public interest. Justices should defer to the judgment of agency professionals, which represents the unquestioned scientific consensus. Vaccines offer the best, possibly the only, way to curtail the covid-19 pandemic.

Lawrence O. Gostin, a professor at Georgetown University and director of the World Health Organization Collaborating Center on National and Global Health Law, is author of “Global Health Security: A Blueprint for the Future.” Jeffrey E. Harris is emeritus professor at the Massachusetts Institute of Technology and practicing physician at Eisner Health, a community health center in Los Angeles. Dorit Rubinstein Reiss is a law professor at University of California, Hastings College of the Law.

Dec. 28

washington post logoWashington Post, Supreme Court term limits are popular — and appear to be going nowhere, Seung Min Kim and Robert Barnes, Dec. 28, 2021. President Biden’s commission to study structural revisions to the Supreme Court found one potential change both Democrats and Republicans have said they could support: implementing term limits for the justices, who currently have lifetime tenure.

Yet the bipartisan support among legal experts and the public for term limits isn’t catching on among elected officials on Capitol Hill who would be the starting point on any alterations to the makeup of the Supreme Court. Impatient liberals clamoring for change say enacting term limits would take far too long, while Republican lawmakers are loath to endorse changes they are characterizing as part of a broader effort from Democrats to politicize the judiciary.

The opposition from both corners adds another layer of doubt that proposals laid out and debated by Biden’s Supreme Court commission will translate into tangible action in the near future.

The chief argument against term limits among Democratic lawmakers and others who have endorsed structural changes is that doing so may require a constitutional amendment — a process that is long, cumbersome and has not been successfully executed since 1992.

“It takes years to work through the state legislatures,” Sen. Elizabeth Warren (D-Mass.) said in an interview. “We don’t have years when the Supreme Court is gutting voting rights, gutting union rights, gutting the equal protection clause and signaling that it’s going to overturn Roe.”

Warren is the most recent convert in the Senate in favor of Supreme Court expansion, one of only a few Democrats there who have explicitly endorsed structural changes to the court even as the recent oral arguments in Mississippi’s abortion ban have prompted many to reconsider their stance. In an op-ed in the Boston Globe this month, Warren argued that Republican maneuvering has essentially packed the Supreme Court in their favor, and that adding justices is necessary to rebalance it. Increasing the number of justices could be done through a statute, a far simpler process than passing an amendment.

Dec. 27

CovertAction Magazine, Investigative Commentary: Sex Crimes of the CIA — Unreported, Unrepented, and Unpunished, John Kiriakou, right, Dec. 27, 2021. The john kiriakouCIA rivals the Vatican in covering up sex crimes against children and then protecting the members of its organization who commit them.

Buzzfeed reported early this month that, in response to a Freedom of Information Act lawsuit, the CIA revealed that 10 employees and a contractor had committed sex crimes against children—but only one was ever charged with a crime.

Considering how well the CIA knows how to cover up what it does not want to be known, we may reasonably speculate that those crimes represent only the tip of an iceberg—and I say this as someone who served 15 years in the CIA.

The evidence that the CIA released to Buzzfeed in response to a Freedom of Information Act lawsuit shows that the 10 employees and one contractor committed crimes including child rape, the purchase of violent child pornography, and viewing as many as 1,400 photos of nude children on a CIA CIA Logocomputer while overseas on a work assignment.

The contractor had arranged to have sex with an undercover FBI agent who he thought was a child. The only CIA officer prosecuted for child sex crimes had also mishandled classified information. Four of the other accused employees and the contractor were fired, four were “disciplined administratively,” and the status of one is unknown.

Let’s be clear about these crimes.

These were not “he said, she said” allegations. They were serious sex crimes against children.

The Buzzfeed information, which includes both internal CIA documents and a declassified Inspector General’s report, say that besides the contractor, CIA officers admitted to, “using a government laptop to view photographs and videos of girls as young as 10 being abused by an older guy;” having sexual contact with two girls, ages two and six, and downloading illicit photos of other children; downloading 63 videos of sex between adults and children between the ages of 8 and 16; and distributing lewd photos and videos of children to other pedophiles.

One CIA officer told investigators that he “did not know it was a violation of Agency policy to access child pornography.” He was not prosecuted.

For its part, the Justice Department elected to do practically nothing, notwithstanding a statement to Buzzfeed that, “The occupation or employer of the Justice Department log circularsuspect does not factor into that evaluation” (of whether or not to prosecute.) “While we cannot comment on the reasons why specific cases were declined, we do take very seriously any allegation that our prosecutors declined a potential case based on an improper assessment of the relevant factors.”

That’s nonsense. The truth is that the Justice Department was afraid of graymail. That’s the threat of a CIA officer on trial “accidentally” saying something classified or something that compromises sources and methods. It’s not worth the risk to the CIA to prosecute most cases. And the bottom line is that the CIA doesn’t care one whit about the children.

I spent 15 years at the CIA. It is a highly-sexualized environment full of type A personalities, sociopaths, and psychopaths. We had an old joke that, when you went into a meeting, you should never touch the conference room table because you didn’t know who was having sex on it the night before.

There was one incident in a war zone overseas while I was there where CIA officers were passing around to each other a sexually-transmitted disease unique to the CIA. A CIA doctor had to fly to the country to tell them to stop and to remind them to practice safe sex.

Further afield, it was a common occurrence for CIA case officers developing foreign officials for recruitment to offer them trips to southeast Asia, where both could partake of prostitutes and indulge in whatever sexual fantasies they had.

I note in my first book, The Reluctant Spy: My Secret Life in the CIA’s War on Terror, that one of my senior bosses, with whom I had had a dispute, tried to lighten the mood by telling me to take some money out of petty cash to pay for oral sex. I declined, angrily.

Case officers get promoted for recruitments and for the development of classified information. They don’t care about human trafficking. They don’t care about prostitution. And as it turns out, they don’t even care about abused children.

It’s accurate to say that I was “shocked but not surprised” when I read the Buzzfeed allegations.

All Americans should be sickened by them. I know that I sound like a broken record when I ask, “Where is the Congressional oversight?”

Why aren’t there hearings or investigations about child sex crimes at the CIA? Why aren’t the House and Senate Judiciary Committees investigating why the U.S. Attorneys refuse to take up the cases? Why are children not being protected?

It’s easy enough to say that we get the government we deserve. But somebody has to stand up for children. The CIA won’t do it. The Justice Department apparently won’t. Now that the cat is out of the bag, where do we go next?

John Kiriakou, right, was a CIA analyst and case officer from 1990 to 2004. In December 2007, John was the first U.S. government official to confirm that john kiriakouwaterboarding was used to interrogate al-Qaeda prisoners, a practice he described as torture. Kiriakou was a former senior investigator for the Senate Foreign Relations Committee and a former counter-terrorism consultant. While employed with the CIA, he was involved in critical counter-terrorism missions following the terrorist attacks of September 11, 2001, but refused to be trained in so-called “enhanced interrogation techniques,” nor did he ever authorize or engage in such crimes.

After leaving the CIA, Kiriakou appeared on ABC News in an interview with Brian Ross, during which he became the first former CIA officer to confirm the existence of the CIA’s torture program. Kiriakou’s interview revealed that this practice was not just the result of a few rogue agents, but was official U.S. policy approved at the highest levels of the government.

Kiriakou is the sole CIA agent to go to jail in connection with the U.S. torture program, despite the fact that he never tortured anyone. Rather, he blew the whistle on this horrific wrongdoing.

Dec. 24

washington post logoWashington Post, Opinion: Supreme Court cases over vaccine mandates are really about whether government can protect us, Ruth Marcus, right, Dec. 23, 2021. ruth marcusWhat powers does the federal government possess to combat a deadly virus that doesn’t recognize state boundaries?

Must the federal government stand by helplessly when red-state governors, rather than adopting vaccine and mask mandates, instead block them — harming their own residents in the face of a pandemic that has already cost more than 810,000 lives?

Can federal agencies impose mandates using laws that were hardly designed with a global health crisis in mind? Or must regulators wait for that authority to be made clear by Congress, which has proved itself increasingly incapable of governing?

Those questions are at the heart of two cases that the Supreme Court is to hear early next month. The first involves an emergency rule issued by the Occupational Safety and Health Administration requiring that companies with more than 100 employees working indoors mandate that they be vaccinated or, if not, wear masks and be tested weekly. The second concerns a vaccination requirement for workers in hospitals, nursing homes and other health-care facilities that participate in the federal Medicare and Medicaid programs.

The decisions will likely turn on a technical parsing of the language of the statutes invoked to justify the rules. But underlying both disputes are fundamental questions about the proper division of authority between federal and state government and federal regulators’ capacity to respond quickly and effectively to emergency situations.

It’s good that the court has agreed to hear these cases, in particular that it took the unusual step of scheduling oral arguments while considering the cases on an emergency basis. But these mandates represent aggressive, even unprecedented, uses of federal regulatory authority, and there is ample reason to fear what might happen to them in the hands of a conservative court that wants to elevate state power, is itching to rein in administrative agencies and is disinclined — to put it mildly — to read agencies’ authorities broadly.

 

U.S. House Jan. 6 insurrection investigating committee members Liz Cheney (R-WY), Adam Kinzinger (R-IL) and Jamie Raskie (D-MD) are shown, left to right, in a file photo.U.S. House Jan. 6 insurrection investigating committee members Liz Cheney (R-WY), Adam Kinzinger (R-IL) and Jamie Raskin (D-MD) are shown, left to right, in a file photo.

washington post logoWashington Post, Thompson says Jan. 6 committee is focused on Trump’s hours of silence during attack, weighing criminal referrals, Tom Hamburger, Jacqueline Alemany, Josh Dawsey and Matt Zapotosky, Dec. 24, 2021 (print ed.). The House committee investigating the Jan. 6 attack on the Capitol is focusing intently on Donald Trump’s actions that day as it begins to discuss whether to recommend that the Justice Department open a criminal investigation into the former president.

Committee Chairman Bennie G. Thompson (D-Miss.) said in an interview that of particular interest is why it took so long for him to call on his supporters to stand down, an area of inquiry that includes obtaining several versions of a video Trump reportedly recorded before finally releasing a message 187 minutes after he told his supporters to march on the Capitol during the rally that preceded the attack.

“It appears that he tried to do a taping several times, but he wouldn’t say the right thing,” Thompson said, basing his statement on information the panel has gleaned from interviews with witnesses as well as media reports about that day.

He said the president’s delayed response to the Capitol attack could be a factor in deciding whether to make a criminal referral, which is when Congress informs the Justice Department it believes a crime has been committed. It would be up to federal prosecutors to decide whether to pursue a charge.

“That dereliction of duty causes us real concern,” Thompson said. “And one of those concerns is that whether or not it was intentional, and whether or not that lack of attention for that longer period of time, would warrant a referral.”

A criminal referral against a former president would be historic and would ratchet up the political tensions that continue to swirl over the congressional inquiry into the worst attack on the Capitol since the War of 1812 as Trump considers running again for president.

 

capitol guns drawn

Police with guns drawn watch as rioters and vandals break into the House Chamber at the U.S. Capitol on Wednesday, Jan. 6, 2021, in Washington. (AP Photo / J. Scott Applewhite) (Source: J. Scott Applewhite/AP).

brian sicknickA California woman was warned and then fatally shot as she and others in the mob shattered glass and tried to crawl up and through the hole in the door to enter the chamber where congressional members and staff had huddled for safety during the rampage. Dying also were four others, including Brian D. Sicknick, above, a Capitol Hill police officer murdered while trying to protect government workers during the pro-Trump insurrection. President Trump failed to order federal flags flown at half-mast in his honor, although House Speaker Nancy Pelosi did so over the flags she controls at the Capitol.

 ny times logoNew York Times, Opinion: Will Donald Trump Get Away With Inciting an Insurrection? Laurence H. Tribe, Donald Ayer and Dennis Aftergut, Mr. Tribe taught constitutional law at Harvard for 50 years. Merrick Garland was one of his students. Mr. Ayer oversaw criminal prosecutions and investigations as Ronald Reagan’s U.S. attorney for the Eastern District of California. He later served as deputy attorney general. Mr. Aftergut handled a number of complex investigations and prosecutions as a federal prosecutor in San Francisco.

merrick garlandIn his nine months in office, Attorney General Merrick Garland, right, has done a great deal to restore integrity and evenhanded enforcement of the law to an agency that was badly misused for political reasons under his predecessor. But his place in history will be assessed against the challenges that confronted him. And the overriding test that he and the rest of the government face is the threat to our democracy from people bent on destroying it.

Mr. Garland’s success depends on ensuring that the rule of law endures. That means dissuading future coup plotters by holding the leaders of the insurrection fully accountable for their attempt to overthrow the government. But he cannot do so without a robust criminal investigation of those at the top, from the people who planned, assisted or funded the attempt to overturn the Electoral College vote to those who organized or encouraged the mob attack on the Capitol. To begin with, he might focus on Mark Meadows, Steve Bannon, Rudy Giuliani, John Eastman and even Donald Trump — all of whom were involved, in one way or another, in the events leading up to the attack.

Justice Department log circularAlmost a year after the insurrection, we have yet to see any clear indicators that such an investigation is underway, raising the alarming possibility that this administration may never bring charges against those ultimately responsible for the attack.

While the Justice Department has filed charges against more than 700 people who participated in the violence, limiting the investigation to these foot soldiers would be a grave mistake: As Joanne Freeman, a Yale historian, wrote this month about the insurrection, “Accountability — the belief that political power holders are responsible for their actions and that blatant violations will be addressed — is the lifeblood of democracy. Without it, there can be no trust in government, and without trust, democratic governments have little power.”

The legal path to investigate the leaders of the coup attempt is clear. The criminal code prohibits inciting an insurrection or “giving aid or comfort” to those who do, as well as conspiracy to forcibly “prevent, hinder or delay the execution of any law of the United States.” The code also makes it a crime to corruptly impede any official proceeding or deprive citizens of their constitutional right to vote.

Based purely on what we know today from news reports and the steady stream of revelations coming from the House select committee investigating the attack, the attorney general has a powerful justification for a robust and forceful investigation into the former president and his inner circle. As White House chief of staff, Mark Meadows was intimately involved in the effort to overturn the election. He traveled to Georgia last December, where he apparently laid the groundwork for the phone call in which the president pressured Georgia’s secretary of state, Brad Raffensperger, to “find 11,780 votes.” Representative Jim Jordan of Ohio reportedly promoted a scheme to pressure Vice President Mike Pence to reject duly certified Joe Biden electors. And from their war room at the Willard Hotel, several members of the president’s inner circle hatched the legal strategy to overturn the results of the election.

The president himself sat back for three hours while his chief of staff was barraged with messages from members of Congress and Fox News hosts pleading with him to have Mr. Trump call off the armed mob whose violent passion he had inflamed. That evidence, on its own, may not be enough to convict the former president, but it is certainly enough to require a criminal investigation.

And yet there are no signs, at least in media reports, that the attorney general is building a case against these individuals — no interviews with top administration officials, no reports of attempts to persuade the foot soldiers to turn on the people who incited them to violence. By this point in the Russia investigation, the special counsel Robert Mueller had indicted Paul Manafort and Rick Gates and secured the cooperation of George Papadopoulos after charging him with lying to the F.B.I. The media was reporting that the special counsel’s team had conducted or scheduled interviews with Mr. Trump’s aides Stephen Miller and Mr. Bannon, as well as Attorney General Jeff Sessions.

Of course, there is no way to know for sure whether Mr. Garland’s Department of Justice is investigating the leaders of the attack behind closed doors. Justice Department policy does not permit announcing investigations, absent exceptional circumstances. Mr. Garland, unlike his predecessor, plays by the book, keeping quiet about investigations until charges are filed. But the first of the rioters to plead guilty began cooperating with the Justice Department back in April. If prosecutors have been using their cooperation to investigate the top officials and operatives responsible for the siege of the Capitol and our democracy, there would likely be significant confirmation in the media by now.

It is possible that the department is deferring the decision about starting a full-blown investigative effort pending further work by the House select committee. It is even conceivable that the department is waiting for the committee’s final report so that federal prosecutors can review the documents, interviews and recommendations amassed by House investigators and can consider any potential referrals for criminal prosecution.

But such an approach would come at a very high cost. In the prosecution business, interviews need to happen as soon as possible after the events in question, to prevent both forgetfulness and witness coordination to conceal the truth. A comprehensive Department of Justice probe of the leadership is now more urgently needed than ever.

It is also imperative that Mr. Trump be included on the list of those being investigated. The media has widely reported his role in many of the relevant events, and there is no persuasive reason to exclude him.

First, he has no claim to constitutional immunity from prosecution. The Department of Justice’s Office of Legal Counsel has recognized such immunity only for sitting presidents because a criminal trial would prevent them from discharging the duties of their office. Mr. Trump no longer has those duties to discharge.

Nor is exclusion of the former president remotely justified by the precedent President Gerald Ford set in pardoning Richard Nixon to help the country “heal” from Watergate. Even our proud tradition of not mimicking banana republics by allowing political winners to retaliate against losers must give way in the wake of violence perpetrated to thwart the peaceful transition of power. Refusing to at least investigate those who plot to end democracy — and who would remain engaged in efforts to do so — would be beyond foolhardy.

Furthermore, the pending state and local investigations in New York and Atlanta will never be able to provide the kind of accountability the nation clearly needs. The New York case, which revolves around tax fraud, has nothing to do with the attack on our government. The Atlanta district attorney appears to be probing Mr. Trump’s now infamous call to Mr. Raffensperger. But that is just one chapter of the wrongdoing that led up to the attack on the Capitol.

Significantly, even if the Atlanta district attorney is able to convict Mr. Meadows and Mr. Trump for interfering in Georgia’s election, they could still run for office again. Only convicting them for participating in an insurrection would permanently disqualify them from office under Section 3 of the 14th Amendment.

Some have expressed pessimism that the Department of Justice would be able to convict Mr. Trump. His guilt would ultimately be for a jury to decide, and some jurors might believe he deluded himself into believing his own big lie and thus genuinely thought he was saving, rather than sabotaging, the election. But concerns about a conviction are no reason to refrain from an investigation. If anything, a federal criminal investigation could unearth even more evidence and provide a firmer basis for deciding whether to indict.

To decline from the outset to investigate would be appeasement, pure and simple, and appeasing bullies and wrongdoers only encourages more of the same. Without forceful action to hold the wrongdoers to account, we will likely not resist what some retired generals see as a march to another insurrection in 2024 if Mr. Trump or another demagogue loses.

Throughout his public life, Mr. Garland has been a highly principled public servant focused on doing the right thing. But only by holding the leaders of the Jan. 6 insurrection — all of them — to account can he secure the future and teach the next generation that no one is above the law. If he has not done so already, we implore the attorney general to step up to that task.

Palmer Report, Opinion: Donald Trump’s last stand, Bill Palmer, right, Dec. 24, 2021. When the U.S. Court of Appeals swiftly ruled that the National Archives must bill palmerturn over incriminating evidence against Donald Trump to the January 6th Committee, it was a given that Trump would appeal to the Supreme Court. Yesterday he did precisely that. Here’s the thing.

Even this Supreme Court isn’t going to allow itself to get dragged into Donald Trump’s last stand, just as it made a point of steering clear of bill palmer report logo headerhis baseless 2020 election claims. Trump has no claim of privilege and therefore has no case, as the appeals court has already spelled out. So the Supreme Court is either going to refuse to hear his case at all, or 2) hear the case but swiftly rule against him. Either way, this will be over within weeks.

This comes even as the January 6th Committee has pretty clearly been gearing up to hold publicly televised hearings in the new year. As we predicted back when this court battle first began, the committee will end up receiving the National Archives evidence against Donald Trump right around the time it was planning to go at Trump with its public hearings.

This is shaping up to be Donald Trump’s last stand. He seems to know it too, given how desperately he’s trying to fight this losing battle in court, even knowing that it won’t help him in any real way, or somehow magically “run out the clock.” He simply has no choice but to fight a losing battle on this, knowing he’s screwed anyway.

Justice Department logo

Lawfare, Commentary: Former Harvard Professor Convicted In Victory for Justice Department’s China Initiative, Brian Liu and Raquel Leslie, Dec. 23, 2021.  The Justice Department announced on Tuesday that Charles Lieber, former chair of Harvard’s Chemistry and Chemical Biology Department, was convicted by a federal jury in connection with his ties to China’s Thousand Talents Program.

Liebercharles lieber file, right, was convicted for failing to report income and making false statements to authorities regarding his affiliation with the Wuhan University of Technology (WUT). The conviction is a significant chapter in the story of the department’s China Initiative, which has recently come under fire by groups who allege that the program has led to racial profiling and amounts to prosecutorial overreach.

The jury convicted Lieber of knowingly and willfully making a materially false statement to federal authorities regarding his work with China’s Thousand Talents Program.

The program, launched in 2008, began with the aim of reversing brain drain by enticing Chinese scientists overseas to return to China. Over time, the program evolved to also recruit foreigners with expertise in key technologies. The program provided Lieber with $50,000 a month to work at WUT, in addition to up to $150,000 in living expenses and more than $1.5 million in grants. Though it is not illegal to participate in Chinese recruitment programs, federal prosecutors alleged that Lieber had failed to report these payments as required of scientists receiving federal funding.

Lieber was seen by some as a potential Nobel Prize winner for his work in nanotechnology. Nanotechnology, the manipulation of materials at a near-atomic level, is a strategically important field with civilian and military application in medicine, green energy, computing and propulsion. In 2012, China’s Academy of Sciences launched a Strategic Pioneering Programme dedicated to nanotechnology research, investing one billion yuan ($152 million) over five years. As a result of the investment, China now ranks first worldwide for the number of patents and articles published on nanotechnology.

Lieber’s prosecution is among the highest profile to come from the China Initiative. The Justice Department created the China Initiative during the Trump Administration in 2018 to prosecute intellectual property (IP) theft and protect U.S. research institutions and critical infrastructure from external threats.

The Biden administration has signaled to Congress that it plans to continue these efforts. In a congressional hearing in November, Attorney General Merrick Garland called China a “serious threat” with regard to IP theft and espionage. In the year-end update to its China Initiative information sheet, the department highlighted 15 prosecutions, indictments and operations from the past year. Separately, the MIT Technology Review published a database in December showing a total of 77 cases since 2018 with more than 150 defendants.

Academics and lawmakers have criticized the China Initiative, arguing that it has resulted in racial profiling against Asians and harmed U.S. technological competitiveness by chilling productive academic collaborations. This past July, in a letter signed by 90 members of Congress, Representative Ted Lieu warned about the risk of wrongful targeting of individuals of Asian descent.

Addressing these concerns, Garland spoke to the need for the Department of Justice to distinguish between countering the Chinese government and targeting Americans of Chinese descent: “We want to be careful to separate out a country that is a serious competitor with us . . . with Americans and also with residents who come from that country.” To distinguish the two issues, Professor Margaret Lewis of Seton Hall Law School has proposed renaming the initiative. Lewis argues that while fears of Chinese IP theft are not unfounded, the naming of a Justice Department initiative after a specific country unnecessarily feeds into xenophobia.

The Lieber trial was seen by some observers as not only a trial on Lieber’s conduct, but for the viability of the China Initiative writ large. It remains to be seen what impact Lieber’s conviction may have on the department’s broader China-related law enforcement efforts heading into next year.

U.S. Imposes Latest Round of Sanctions on China for Misusing Biotechnology Against Ethnic Minorities

The Biden administration announced on Dec. 16 that it imposed trade restrictions on dozens of Chinese government research institutes and private-sector tech firms over human rights violations and the alleged weaponization of technologies that undermine U.S. national security. Twelve Chinese research institutes and 22 Chinese tech firms, including China’s Academy of Military Medical Sciences, were blacklisted and barred from any exports or transfers of U.S. technology, except in limited cases with a license. The Commerce Department accused the entities of contributing to a broader Chinese government strategy to develop and deploy biotechnology “to support Chinese military end uses and end users, to include purported brain-control weaponry” for potential offensive use against Uyghurs and other ethnic minorities.

China “is choosing to use these technologies to pursue control over its people and its repression of members of ethnic and religious minority groups,” Commerce Secretary Gina Raimondo said in a statement. “We cannot allow U.S. commodities, technologies, and software that support medical science and biotechnical innovation to be diverted toward uses contrary to U.S. national security.” Earlier this month, the White House announced a diplomatic boycott of the 2022 Winter Olympics in Beijing, citing “ongoing genocide and crimes against humanity in Xinjiang and other human rights abuses.” The Biden administration has also indicated support for bipartisan legislation passed by the Senate on Dec. 16 that bans imports into the U.S. from Xinjiang unless companies can demonstrate the goods were not produced by forced labor.

 

Former Chief U.S. Circuit Judge for the District of Columbia Merrick Garland is sworn-in as attorney general by Vice President Kamala Harris on March 11, 2021 ( White House Photo by Lawrence Jackson).

Former Chief U.S. Circuit Judge for the District of Columbia Merrick Garland is sworn-in as attorney general by Vice President Kamala Harris on March 11, 2021 ( White House Photo by Lawrence Jackson).

Lawfare, Opinion: Merrick Garland Needs to Speak Up, Quinta Jurecic, Andrew Kent, Benjamin Wittes, Dec. 21, 2021. Attorney General Merrick Garland is taking a great deal of criticism these days.

He’s being attacked for not having indicted former President Trump, for not having brought cases faster against witnesses who have defied the Jan. 6 committee, and for not having moved more aggressively against political figures for their supposed involvement in the Jan. 6 insurrection.

These criticisms speak to genuine frustrations with the slow pace of department action. They are also based on two flawed assumptions.

The first is the assumption that the evidence and equities would support prosecutions and, consequently, that the absence of criminal cases reveals weakness or hypercaution on the Justice Department’s part. This may be the case—but it may not. The absence of prosecutions could also reflect inadequacies in the evidence needed to bring cases.

The second problem is the confusion of what has not happened with what has not happened yet. The Justice Department can be very busy without making a lot of noise. The fact that indictments have not materialized so far does not mean they won’t appear tomorrow—or the day after.

But nearly a year into his tenure as attorney general, though much of the criticism of Garland has been unfair or at least premature, the attorney general does have something to answer for: his relative silence.

When Joe Biden nominated Garland to be attorney general, Garland spoke explicitly about Edward Levi, the former president of the University of Chicago and a noted legal scholar who served as attorney general under President Gerald Ford.

“Ed Levi and Griffin Bell, the first Attorneys General appointed after Watergate, had enunciated the norms that would ensure the department’s adherence to the rule of law,” Garland said in his acceptance speech:

Those policies included guaranteeing the independence of the department from partisan influence and law enforcement investigations, regulating communications with the White House, establishing guidelines for FBI investigations, ensuring respect for the professionalism of DOJ’s lawyers and agents, and setting our principles to guide the exercise of prosecutorial discretion. Those policies became part of the DNA of every career lawyer and agent.

Garland’s mission as attorney general, he stressed, would be “to reaffirm those policies as the principles upon which the department operates.” And he quoted another speech from Levi’s swearing in: “Nothing can more weaken the quality of life, or more imperil the realization of the goals we all hold dear, than our failure to make clear by words and deed that our law is not the instrument of partisan purpose.”

At Garland’s first speech to the Justice Department staff, he once again invoked Levi:

The only way we can succeed and retain the trust of the American people is to adhere to the norms that have become part of the DNA of every Justice Department employee since Edward Levi’s stint as the first post-Watergate Attorney General.

As I said at the announcement of my nomination, those norms require that like cases be treated alike. That there not be one rule for Democrats and another for Republicans; One rule for friends and another for foes; One rule for the powerful and another for the powerless; One rule for the rich and another for the poor; Or different rules depending upon one's race or ethnicity. At his swearing in, Attorney General Levi said: “If we are to have a government of laws and not of men, then it takes dedicated men and women to accomplish this through their zeal and determination, and also through fairness and impartiality. And I know that this Department always has had such dedicated men and women.” I, too, know that this Department has and always has had such dedicated people. I am honored to work with you once again. Together, we will show the American people by word and deed that the Department of Justice pursues equal justice and adheres to the rule of law.

Garland is not the only senior Justice Department official to refer to Levi’s legacy in describing the mission of the Justice Department under President Biden. At her confirmation hearing, Deputy Attorney General Lisa Monaco declared that:

My first job in the Department was as counsel to Janet Reno, the first woman Attorney General. She hung a portrait of Attorney General Edward Levi in her conference room. It signaled her commitment to continuing Levi’s post-Watergate work to ensure the Department’s independence. It symbolized for me then, and is a reminder today, that the Department’s leaders have a duty to remember and reaffirm the values of the institution. When Attorney General Levi was asked what he thought the Department needed most after Watergate, he responded, “A soul.”

There’s a very good reason the senior Justice Department leadership keeps pointing to Ed Levi as a kind of founding father of the Justice Department they seek to restore. Indeed, we are sympathetic to the Justice Department’s need to revive the norms and practices of apolitical, independent, and professional justice that Levi did more than any other single person to create. Before Biden was even elected, in fact, one of us tweeted that Garland should be attorney general because he “is the closest thing the country has right now to an Ed Levi figure to restore the Justice Department.” Another of us wrote last spring an article in the Atlantic analyzing Levi’s legacy as a model for Garland.

Yet Garland seems to be ignoring one crucial aspect of Levi’s legacy: Ed Levi spoke a lot. Garland has been, in sharp contrast, largely invisible.

You don’t establish norms, or reestablish them, merely by modeling them. You establish them by articulating them, by talking about them, and by convincing people that they are the right way to behave. Levi understood this. His speeches and congressional testimonies as attorney general were numerous, highly substantive, and made arguments on behalf of the direction he wished to see the department go. They are a unique body of work among attorneys general, considered intellectually significant enough to have been collected and published as a volume by the University of Chicago Press.

Levi himself, we have learned, personally attached great importance to his speeches and testimonies. According to John Buckley, who served as one of Levi’s special assistants at the department and worked on some of the speeches, Levi wrote them himself—working on each with one of his special assistants.

Under Levi’s predecessor, William Saxbe, the public relations office would write the attorney general’s addresses. But Levi “​​believed in communication” and “labored over his speeches, testimony, [and] addresses,” Buckley said in a recent interview. He would “bang away at a manual typewriter” and edit the speeches with a fountain pen. “Those were his words.”

When he left office, his speeches were sufficiently significant to Levi that he bound them in a printed volume and gave a copy to each of the special assistants. It shows, Buckley says, “how much importance he attached to everything he wrote.”

Levi understood that certain Department of Justice issues were important enough that he needed to speak candidly and in detail about them to the public. For instance, the massive extent of the FBI’s “black bag jobs” and warrantless wiretapping of American citizens, sometimes for purposes of gathering political intelligence, had come to light through investigative journalism, congressional oversight, and some long overdue Department of Justice housecleaning started under Levi’s predecessor, Saxbe. J. Edgar Hoover’s FBI was also found to have gathered salacious material on a wide range of public figures, including members of Congress, and to have engaged in abusive and sometimes bizarre efforts to disrupt and discredit groups and individuals it considered radical. The revelations understandably lowered public opinion of the department’s integrity, and raised legitimate concerns about how deep the rot went and whether it was continuing.

Levi candidly owned up to mistakes: “[W]e all realize that in the past there have been grave abuses” by the FBI. And he named and described them. The “supervision by Attorneys General” of the FBI “has been sporadic, practically nonexistent, or ineffective.” He vowed to fix that and explained very specifically how he aimed to do it.

Levi also spoke repeatedly about programmatic efforts to remedy the sources of the problems. For example, he described to Congress and the public how he had tasked a Justice Department committee to draft detailed guidelines to rein in FBI misbehavior and increase oversight in sensitive areas, such as investigations that touched on political figures and political groups, the issuance of subpoenas to members of the press, and the use of informants. He repeatedly articulated the department’s legal views, along with policies designed to have warrantless wiretapping for foreign intelligence purposes narrowly circumscribed and subject to his personal oversight. He spoke publicly and specifically about the department’s work with Congress on a broad statute to bring under judicial oversight all domestic wiretapping for national security purposes. He described the outrageous FBI conduct toward Martin Luther King Jr. and described how he had tasked non-FBI officials to credibly and independently investigate it. Levi talked about how “important” it was that “the public get assurances that there are not such abuses” happening anymore. His goal was a “reconstruction” of the department and the public’s confidence in it, and a “reaffirmation of the effectiveness, independence and integrity of law enforcement agencies.”

Garland comes from a different school of thought on public engagement. During his long service as a judge, not only did he not give speeches or interviews describing his thinking and goals. He didn’t speak publicly at all. He didn’t speak at universities, as many judges do. He didn’t write law review articles. In his earlier stint at the Justice Department, he never cut much of a public figure either, though everyone understood that he was one of the most important people in the Main Justice building. He is steeped in the department’s culture of quietness, and he took that culture with him to the judiciary—where he was far more quiet than his contemporaries on the bench.

This quietness on Garland’s part is an expression of certain long-standing Justice Department norms. The department, according to this model, speaks almost entirely in court. It does not comment on pending investigative or prosecutorial matters outside of that. It does not behave politically—and shutting up is one very good way of avoiding saying things that could be construed in a political fashion. And the current moment has undoubtedly reinforced in Garland the wisdom of silence. His predecessor, William Barr, made all kinds of public comments that brought the department’s conduct into disrepute, speculating on what may have happened during the Russia investigation, for example. And before his firing, FBI Director James Comey was widely blasted for his comments about the Clinton email investigation during the last weeks before the 2016 election. So Garland may well have an instinct that the less he says the better.

The trouble is that, while silence by the attorney general reflects the department’s norms, it is a singularly bad means of establishing—or reestablishing—them.

In Garland’s defense, in deciding whether and how to speak publicly about past abuses and the current work of the department, he is facing problems that in some ways are tougher than those that confronted Levi. When Levi took office, the question about whether a former president who had potentially violated a number of criminal laws should be prosecuted had been resolved already: President Ford had granted a blanket pardon to Richard Nixon. Politically sensitive prosecutions of Watergate defendants had been handed off to a special prosecutor’s office. By contrast, questions about prosecuting Donald Trump and his associates must be faced by Garland himself and the departmental prosecutors working under him.

Levi’s credibility and freedom to operate were almost certainly enhanced by the facts that American politics, culture and media were less polarized in the 1970s than today, and that Levi’s criticisms of past abuses at the Department of Justice and White House often involved a current Republican administration criticizing a former Republican administration. Garland—unfortunately for him—must act and speak in a time of both fierce political tribalism and a social media environment that amplifies conflict, extreme positions and lies, all while laboring under the disability that criticisms from a Democratic attorney general of Republican predecessors will be discounted by many observers who will simply assume it to be politically motivated.

Despite our sympathy with the challenges facing Garland, his unwillingness to give the public any insight into his thinking seems ripe for criticism. It reflects a decision not to sell a vision—a vision that Garland clearly possesses and embodies—about how decisions should get made when the department is functioning properly.

There are a lot of such decisions before the department on which the public understanding and public debate would benefit from hearing the attorney general’s thinking. When Garland issued a policy strictly limiting contacts between the White House and the Justice Department—a policy very similar to ones that had been in place since the late 1970s—he could have given a speech explaining his goals and his choices. These policies seek to ensure that investigative and prosecutorial decisions about specific individuals are made based on law and fact, as evaluated by department lawyers and law enforcement professionals, not based on partisan or other improper considerations emanating from the White House. These norms were flagrantly abused during the Trump administration, and are in need of public reaffirmation. But Garland gave no such speech, leaving it to the press to report on the existence of the new policy and explain its significance to the public.

There are other instances in which more speaking would have been preferable. The department has reached plea agreements with a number of Jan. 6 defendants and has faced criticism, including from skeptical judges, for some of the relatively lenient sentences it has sought in those cases. What coordinating mechanisms have been set up to make sure that, as Garland himself put it, “like cases [are] treated alike”? And has there been any policy-level guidance about how different fact patterns should be charged?

Questions about when the department will act on criminal contempt referrals from Congress about witness refusals to comply with subpoenas from the Jan. 6 committee—such as that of Mark Meadows, Trump’s former chief of staff—are also fraught. It is, of course, correct for the department to avoid specific comments about individual pending matters. But this is not simply a collection of individual cases. It is a politically explosive and undeveloped area of law and practice that implicates fundamental separation of powers questions. The public would benefit from hearing reasoned discussion from the attorney general about how the department is approaching these referrals in broad terms. How is it balancing its institutional obligations to the legislature to bring contempt cases with its own interests in preserving a robust executive privilege?

Other areas would similarly benefit from public explanation. After the Sept. 11 attacks, the FBI and the Justice Department gave regular briefings on the investigation. There has been no such comparable effort to keep the public informed of the department’s progress in the Jan. 6 investigation—an investigation of similar scope and scale. Why not?

There is another, more internal question, about which Garland might turn the focus outward: What, if anything, is the department doing within its own ranks to try to rebuild norms and protect against potential misuse of law enforcement for partisan or personal ends in the future? Levi talked about this constantly; Garland has been quiet—except insofar as he has issued a new memorandum on White House contacts. But this question is critical, because it goes to the question of whether any of the changes he’s contemplating will outlast him or meaningfully constrain a less scrupulous attorney general.

Perhaps most importantly, what does the attorney general think—in broad terms, without commenting on any specific investigation—about when it is proper for the department to revisit a criminal investigation formally closed by a prior administration? This is a matter about which prior attorneys general have spoken. It is of acute concern right now with respect to the findings of the Mueller investigation, in particular Special Counsel Robert Mueller’s findings concerning potential obstruction of justice by Trump. Barr personally determined not to prosecute on the grounds that the evidence collected by Mueller was “not sufficient to establish that the President committed an obstruction-of-justice offense”—a decision widely criticized at the time as politically motivated. On entering office, Garland quickly faced calls to take a fresh look at the Justice Department’s charging decision.

So far, there have been no outward indications that the department is reconsidering Barr’s choice. That doesn’t mean that nothing is happening—Mueller left the Justice Department with a rich evidentiary record to pore over without necessarily needing to conduct further investigation. But there is a new urgency to this issue, because the window is beginning to close on the Justice Department’s ability to bring charges against Trump over obstruction.

The statute of limitations for the various obstruction of justice statutes at issue is five years. Trump’s potential obstructive acts, as documented in the Mueller report, spanned from February 2017 through January 2019—so starting in February 2022, the statute of limitations will begin to kick in.

The below chart sets out the various instances of potential obstruction of justice identified by Mueller along with the expiration date for the statute of limitations. It’s an updated version of the obstruction heat map published by Lawfare after the Mueller report’s release, identifying how Mueller evaluates the strength of the three components of the obstruction statutes—an obstructive act, a nexus between the act and an official proceeding, and corrupt intent. This updated edition includes new information about Trump’s actions toward his confidante Roger Stone, which were redacted in the original copy of the Mueller report shared with the public and only revealed in July 2020. It also incorporates Trump’s pardons of Michael Flynn, Paul Manafort and Roger Stone—all of which he granted in 2020, and which arguably constitute potential obstructive acts that reset the clock on the statute of limitations.

As the chart shows, 2022 and 2023 will be crucial years for the Justice Department’s decision-making. The department will face its first deadline in February, concerning whether or not to charge Trump for his infamous conversation with then-FBI Director Comey over the bureau’s investigation into Trump’s former National Security Adviser Michael Flynn. But as the heat map shows, the strongest potential obstruction charges against Trump—as Mueller identifies them—will start to expire in June and July 2022, five years after Trump sought to engineer Mueller’s firing and then to hamstring his investigation. The chart highlights in red the expiration dates for the statute of limitations on these particularly strong cases, on the grounds that they potentially represent the hardest decisions for the Justice Department to make.

As far as we can tell, Garland has not spoken in public on the subject, leaving commentators to guess and prognosticate about the approach that the Justice Department might be taking. While it would obviously be improper for the department, or the attorney general, to speak to specific charges or defendants, it does not seem unreasonable to expect the attorney general to give some window into his thinking about the fundamental questions: Is the department deferring to Barr’s resolution of the matter? Has it, in fact, taken a look and determined that charges would be inappropriate? Or are questions arising from the Mueller report matters of active consideration?

These questions cut to the heart of public confidence in the Justice Department. A significant number of Americans are waiting for the department to hold Trump legally responsible for the many abuses for which he dodged accountability before. If the department doesn’t take such action, even if for very good reasons, these people will be disappointed and frustrated. Justice Department officials might brush off such reactions, except that this disappointment will inevitably undercut Garland’s efforts to “retain the trust of the American people.”

One of the lessons of Trump’s attacks on the integrity of the Justice Department is that most Americans don’t have a strong understanding of why independence in law enforcement matters or of the norms that, since Levi, have guided the department. Perhaps Garland’s view is that the risks of criminally investigating a former president, even in this time, are too great to take, too much of a breach of the department’s traditions. But he cannot expect people to understand that, or have a reasoned discussion of it, without first explaining it to them. And in the absence of an explanation, members of the public will come up with their own ideas—like weakness or lack of commitment to accountability. That silence undercuts the project to which Garland has committed himself.

If the goal of the Justice Department under Garland, as it was under Levi, is to rebuild the expectation that the department will act apolitically on investigative and prosecutorial matters, public communications matter. Public communications from the attorney general himself matter a lot. Garland is a scholarly man, a deeply thoughtful person. He is leaving one of his most important tools in the shed: As Levi said in one speech, “The basic tool for the lawyer is the word.”

Dec. 21

washington post logoWashington Post, Lead Capitol riot charge is constitutional, judges find, Rachel Weiner, Dec. 21, 2021. Three federal judges have agreed that the most serious charge faced by those accused of participation in the Jan. 6 riot at the U.S. Capitol is constitutional, a victory for the Justice Department and a blow to the defendants fighting those accusations.

The ruling came Monday evening from U.S. District Judge Amit B. Mehta, who is overseeing the prosecutions of more than a dozen people associated with the Oath Keepers, a self-styled militia group. Mehta joins judges Dabney L. Friedrich and Timothy J. Kelly, both of whom have moved to uphold the obstruction charges in other cases.

The same legal challenge has been raised by defendants in various Capitol riot prosecutions, from single-person indictments to sprawling conspiracy cases. One judge who has questioned the use of the obstruction charge has yet to rule on the issue.

Without that felony charge, prosecutors would be left with only minor charges against many they view as playing a major role in the riot. The Justice Department has avoided charges of sedition, a rarely used law, and not all those accused of acting as key instigators were seen assaulting police officers.

What crime might Trump have committed on Jan. 6? Liz Cheney points to one.

The ruling also has broader implications. Rep. Liz Cheney (R-Wyo.) has suggested former president Donald Trump could be charged with obstruction of an official proceeding.

Mehta had previously expressed concern that it was unclear what conduct counted as felony “obstruction of an official proceeding” as opposed to misdemeanor disruption of a congressional hearing — a difference between a potential sentence of six months and 20 years behind bars.

Lead felony charge against Jan. 6 defendants could be unconstitutionally vague, U.S. judge warns

But after months of consideration and legal arguments on both sides, Mehta ruled that the government had it right.

“Their alleged actions were no mere political protest,” he wrote. “They stand accused of combining, among themselves and with others, to force their way into the Capitol building, past security barricades and law enforcement, to ‘Stop, delay, and hinder the Certification of the Electoral College vote.’ ”

Defendants had argued that it was unclear whether the certification of President Biden’s victory counted as an “official proceeding.” Charging participants in the Jan. 6 riot with obstruction, they warned, could turn even peaceful protesters into potential felons.

Right wing and liberal vigils planned for in D.C. on anniversary of Capitol riot

Mehta said the “plain text” of the obstruction law covered the group’s actions, and that “even if there were a line of ambiguity ... their alleged acts went well beyond it.” Because the law requires the obstruction to be undertaken “corruptly,” he added, it does not imperil constitutionally protected free speech.

  • Washington Post, Right-wing, liberal vigils planned in D.C. on anniversary of Capitol riot

washington post logoWashington Post, Pentagon updates rules to address extremism in the military, Karoun Demirjian and Alex Horton, Dec. 21, 2021. The new regulations stem from revelations that military personnel and veterans were among those who attacked the U.S. Capitol on Jan. 6. The Pentagon is updating its personnel policies to address a concerning rise of extremism within the military and hold service members accountable for the views they express on social media, officials said Monday.

The rules stem from revelations that military personnel and veterans were among those who attacked the U.S. Capitol on Jan. 6. Upon taking office this year, Defense Secretary Lloyd Austin pledged to study how prevalent the problem may be and take steps to eliminate it.

Senior U.S. defense officials said the Pentagon’s approach will not expressly prohibit membership in extremist groups — and does not target particular ideologies or political leanings, despite the prevalence of right-wing groups that participated in the Capitol attack. Instead, it focuses on addressing “actions” and will rely in large part on individual service members or outside law enforcement agencies to report concerning behavior.

Dec. 20

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

washington post logoWashington Post, Opinion: The alternative to Supreme Court enlargement is surrender, E.J. Dionne Jr., right, Dec. 20, 2021 (print ed.). What the right wing understands that liberals have mostly forgotten is that reshaping rules and institutions can determine outcomes in advance, undermining ej dionne w open neckdemocratic decision-making. The trappings of democracy remain, but real power is vested in the hands of those who bent the rules to predetermine the results.

Liberals are at a special disadvantage when it comes to confronting a radically conservative Supreme Court because most of them are, by nature, institutionalists. They are wary of upsetting long-standing arrangements for fear of mimicking the destructive behavior of the other side and, in the process, legitimizing it.

But the aggressiveness of the right has turned this procedural delicacy into a rationalization for surrender.

Conservatives have abused the process of seating (and blocking) judges again and again. The current 6-3 right-leaning conservative Republican majority on the Supreme Court — let’s call the partisanship by its name — would be a 5-4 moderately liberal Democratic majority if Sen. Mitch McConnell (R-Ky.) had observed the long-standing norms surrounding appointments. Liberals, progressives and moderates who value the rule of law can wring their hands and sit back while this court carries us all back to the 19th century. Or they can say: Enough.

The first step toward doing so is to insist on the truth: This court has already been packed by the right. And the only effective way to undo the right’s power play is to unpack it by adding four justices.

Proponents of court enlargement are still a minority, even among liberals — for now. But their ranks are growing, and one important recruit is Sen. Elizabeth Warren (D-Mass.), who endorsed the idea of adding justices last week. True, Warren is a leading progressive, so perhaps you’re not surprised. But she is also a former law professor who reveres the judiciary and did not come to this position lightly.

The Future of Freedom Foundation, Commentary: The Fear of Those Still-Secret CIA Records on the JFK Assassination, Jacob G. Hornberger, right, Dec. 20, jacob hornberger new2021. One of the amusing aspects of the ongoing controversy over those still-secret CIA records relating to the Kennedy assassination has been the reaction of lone-nut theorists. Hardly any of them, if any at all, are publicly calling on President Biden to disclose those records now rather than delaying disclosure for another year.

What’s up with that? Surely, lone-nut theorists don’t really buy into the “national security” rationale for keeping 58-year-old records relating to the assassination secret from the American people. I don’t know of anyone who really buys into that rationale. After all, what do they think will happen if those records are suddenly disclosed — that the Cuban communist army will invade Miami and start moving up the coast toward Washington?

future of freedom foundation logo squareI’ll tell you why those lone-nut theorists don’t demand immediate disclosure of those documents? They’re scared. Very scared. They fear, at least on a subconscious level, that those remaining records include powerful circumstantial evidence establishing that what happened on November 22, 1963, was a regime-change operation on the part of the national-security establishment. Why else would they still be hiding those records? No, the Cuban army isn’t not going to invade Miami and start moving north toward Washington.

And no, I’m not suggesting that those 58-year-old, still-secret CIA records contain a confession of wrongdoing. Nobody would be stupid enough to put a confession into writing. And even if someone was that stupid, no one would be stupid enough to deliver such a confession to the Assassination Records Review Board or the National Archives.

The JFK assassination is like a gigantic jigsaw puzzle. Imagine a really complicated puzzle that has 1000 small pieces to it. Your kids have lost 25 percent of the pieces. You decide to put the puzzle together anyway. You finish it. Even though you’ve only got 75 percent of it completed, you can still CIA Logotell that it’s a picture of the Eiffel Tower. Then, you find several more pieces. You now have 80 percent of the pieces and you’re able to see the Eiffel Tower more clearly.

That’s the way it is with the Kennedy assassination. With around 75 percent of the pieces, one can see that this was a national-security state regime-change operation. What those remaining records will do is disclose several more small pieces that make the regime-change picture even clearer. That’s why they are hiding them. That’s why they have hidden them for 58 years. That’s why they will continue hiding them, even past Biden’s December 22, 2022, deadline for disclosure. It’s because those still-secret records contain additional incriminating pieces to the puzzle that further fill out the regime-change mosaic.

Permit me to address three factors regarding the Kennedy assassination.

The first one is what I call the Inconceivable Doctrine. It holds that it is just inconceivable that the Pentagon and the CIA would conduct a regime-change operation against President Kennedy.

Really? How can it be inconceivable given the fact that Pentagon and the CIA engaged in regime-change operations against presidents and prime ministers of foreign countries, both before and after the Kennedy assassination?

  • Their violent coup in Iran in 1953 that ousted the democratically elected prime minister, Mohammad Mossadegh, from office.
  • Their assassination of Congo leader Patrice Lumumba.
  • Their regime-change operation in Guatemala in 1954, in which they ousted the democratically elected president, Jacobo Arbenz, from office and also targeted him for assassination.
  • Their repeated assassination attempts against Cuban president Fidel Castro.
  • Their kidnapping and assassination of General Rene Schneider, the overall commander of Chile’s armed forces.
  • Their violent coup in Chile against the democratically elected president, Salvador Allende, which left him dead.
  • Their participation in Operation Condor, the top-secret kidnapping, torture, and assassination program in South America.

Given those regime-change operations and Operation Condor, how can it be inconceivable that they would do the same to a democratically elected U.S. president, especially one whose policies they are convinced pose a grave threat to national security.

What lone-nut theorists just do not want to confront is the fact that the little monster that was brought into existence to assassinate and regime-change douglas horne 2021foreign leaders and others turned inward to protect America from a president whose philosophy and policies, they were convinced, posed a grave threat to national security — a much graver threat, in fact, than those other leaders posed who they assassinated or regime-changed. See FFF’s book JFK’s War with the National Security Establishment: Why Kennedy Was Assassinated by Douglas Horne, right.

The second factor: In the Guatemalan and Chilean regime-change operations, the U.S. national-security establishment told their national-security counterparts in those two countries that the latter had the moral duty to protect their countries by ousting their president whose policies supposedly posed a grave threat to their own national security. How can a domestic regime-change operation be inconceivable given that mindset on the part of the U.S. national-security establishment?

The third factor: The fraudulent autopsy. In the 1990s, the Assassination Records Review Board broke the dam of silence surrounding the autopsy that the U.S. national-security establishment conducted on Kennedy’s body just a few hours after the assassination.

Consider just one aspect to the fraudulent autopsy — the two brain exams that were conducted, the second of which did not involve President Kennedy’s brain.

For 30 years, the national-security establishment had succeeded in keeping its autopsy on Kennedy’s body secret from the American people. It did this by “classifying” it and forcing military personnel involved in the autopsy to sign written secrecy oaths. The personnel were threatened with severe punitive actions if they ever talked about what they had done or seen.

For 30 years, the three military pathologists who conducted the autopsy claimed that there was only one brain examination. That was a lie. And there is no innocent explanation for that lie. It is incriminating, highly incriminating.

The ARRB staff determined that there were two brain exams. John Stringer, the official photographer for the autopsy, told the ARRB that he was at the first brain exam. He told them that at that exam, the brain was “sectioned” or cut like a loaf of bread. That’s standard procedure in gunshot wounds to the head.

Stringer also stated that the photographs of the brain in the official autopsy records were not the photographs he took.

Stringer also told the ARRB that he was not at the second brain exam, which was attended by all three military pathologists and some unknown photographer. At that second brain exam, the brain was not sectioned. That could not have been the brain at the first brain exam because a sectioned brain cannot reconstitute itself.

And that’s just the tip of the autopsy iceberg. See my books The Kennedy Autopsy and The Kennedy Autopsy 2.

As I have repeatedly stated over the years, there is no innocent explanation for a fraudulent autopsy. Certainly no lone-nut theorist has ever come up with one. That’s how we know that this was a national-security state regime-change operation. A fraudulent autopsy necessarily means cover-up in the assassination itself, especially given that the scheme for a fraudulent autopsy was launched at Parkland Hospital at the moment Kennedy was declared dead. See The Kennedy Autopsy.

Notice something important about all this: Whenever lone-nut theorists say that there isn’t evidence of a domestic regime-change operation, they never — repeat never! — address the fraudulent brain exams and the fraudulent autopsy. That’s because they know that a fraudulent brain exam and a fraudulent autopsy necessarily mean a national-security regime-change operation carried out against Kennedy.

The sooner America comes to grips with the fact that the Kennedy assassination is every bit a part of our legacy as a national-security state as all the other regime-change operations, the better off we will be. Acknowledging the truth about out national-security legacy will be the first step in ridding ourselves of the evil system known as a national-security state and restoring our founding governmental system of a limited-government republic.

Dec. 16

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

ny times logoNew York Times, Opinion: The Supreme Court, Weaponized, Linda Greenhouse (shown at right on the cover of her memoir), Dec. 16, 2021. When the Supreme Court overturned a 41-year linda greenhouse cover just a journalistprecedent three years ago and ruled that public employees have a right under the First Amendment’s free speech guarantee not to pay union dues, Justice Elena Kagan accused the 5-to-4 majority of “weaponizing the First Amendment” to serve its anti-labor agenda.

Her powerful dissenting opinion in Janus v. American Federation of State, County and Municipal Employees helped propel the “weaponizing” image into circulation as an apt description of how the court’s conservatives were hijacking the First Amendment and converting it into a tool of deregulation.

Now it’s the Supreme Court itself that has been weaponized.

With the accuracy of a drone strike, the three justices appointed by President Donald Trump and strong-armed through to confirmation by Senator Mitch McConnell, then the majority leader, are doing exactly what they were sent to the court to do.

The resulting path of destruction of settled precedent and long-established norms is breathtaking.

Despite the increasingly plaintive reminders by Chief Justice John Roberts that, as he wrote in dissent in the Texas abortion case last week, “it is the role of the Supreme Court in our constitutional system that is at stake,” the new majority has refused to defend the supremacy of federal law in the face of open defiance by Texas. The court’s acquiescence has left that state’s abortion clinics all but shuttered for months, with pregnant women fleeing to seek care in numbers that are destabilizing the abortion infrastructure in states hundreds of miles from the Texas border.

jeffrey epstein ghislaine maxwell motorcycle

Jeffrey Epstein and Ghislaine Maxwell (Undated photo introduced by prosecution at trial).

The Unz Review, Investigation: Meet Ghislaine: Daddy’s Girl, Whitney Webb, right, Dec. 16, 2021 (4,500 Words). Introduction: Absent from mainstream discourse on Ghislaine Maxwell’s ongoing trial is any mention of the ties, not only of herself, but her family, to Israeli whitney webb twitterintelligence. Those ties, forged by Ghislaine’s father Robert Maxwell, are critical to understanding Ghislaine’s history and her role in Jeffrey Epstein’s sexual blackmail and trafficking network.

The trial of Ghislaine Maxwell, the alleged madam of Jeffrey Epstein’s sexual blackmail and sex trafficking network, has attracted considerable mainstream and independent media attention, though not as much as one might expect given the level of media attention that surrounded Epstein’s 2019 arrest and death or given the public interest in the Epstein/Maxwell scandal and its broader implications.

Unsurprisingly, the broader implications of the Epstein/Maxwell scandal have been largely, if not entirely absent, from mainstream media (and some independent media) coverage of Ghislaine Maxwell’s trial as well as absent from the case itself. For example, despite physical evidence of sexual blackmail stored at Epstein’s residences being shown by the prosecution (with the names of those incriminated being notably redacted), the prosecution chose not to mention even the potential role of blackmail in Ghislaine Maxwell’s activities and motives as it related to her involvement in sex trafficking activities alongside Jeffrey Epstein. Not only that, but the names of Ghislaine’s close contacts and even some of her defense witnesses, along with considerable information about her role in Epstein’s network that is very much in the public interest, is due to be filed under seal and forever hidden from the public, either due to “deals” made between the prosecution and the defense in this case or due to rulings from the judge overseeing the case.

Going hand in hand with the blackmail angle of this case is the specter of Ghislaine Maxwell’s family ties to intelligence agencies, as well as the intelligence ties of Jeffrey Epstein himself. Given that blackmail, particularly sexual blackmail, has been used by intelligence agencies – particularly in the US and Israel – since the 1940s and beyond, it is deeply troubling that neither the blackmail or intelligence angle has played any role in the prosecution’s case or in the mainstream media’s coverage of the trial.

To remedy this lack of coverage, Unlimited Hangout is publishing a 2-part investigative report entitled “Meet Ghislaine”, which is adapted from this author’s upcoming book on the subject. This investigation will detail key aspects of Ghislaine Maxwell’s links to intelligence agencies and sexual blackmail activities that are relevant to the case against her and perhaps explain the silence from the prosecution and their interest in sealing potentially incriminating evidence against Ghislaine from public scrutiny. Part 1 of this article will focus on Ghislaine’s father, Robert Maxwell, a “larger than life” figure who straddled the worlds of both business and espionage and whose daughters inherited different aspects of his espionage contacts and activities as well as his influence empire following his 1991 death.

Dec. 14

 

abraham lincoln military commission

Wayne Madsen Report, Investigative Commentary: Punishment for U.S. coup leaders must be as severe as that which befell Lincoln assassination plotters, wayne madsen may 29 2015 cropped SmallWayne Madsen, left, Dec. 14, 2021. In WMR's December 7, 2021 report, we predicted that we are now in a situation of experiencing "Watergate-level of back-to-back developments." The recent revelations by the House Select Committee on the January 6th sedition, now deemed an attempted coup d'état by Donald Trump and his circle of conspirators, bears out our earlier assessment.

It was Secretary of War Edwin Stanton, Attorney General James Speed, and Advocate General of the Army Joseph Holt who successfully argued that the Lincoln assassination conspirators should be tried by a military commission. Those who plotted to kill Lincoln were, according to several historical records, continuing to follow orders from the remnants of the Confederate government, even though its Army chief, General Robert E. Lee, had surrendered his forces to the United States on April 9, 1865.

abraham lincoln alexander gardner library of congress getty imagesWhen Lincoln, right, was assassinated on April 14, 1865, members of the Confederate government and its Bureau of Special and Secret Service continued to be active around the nation. It was important for the federal government to send a message to the Confederate holdouts and the summary military commission trial and sentencing of the Lincoln assassination cabal sent that very message: continue to wage war and the consequences will be swift and harsh.

That same message must be vigorously delivered by the federal government to those who planned and carried out the coup attempt of January 6th.

A modern-day military commission that would handle the sedition trials of Donald Trump, Mark Meadows, Rudolph Giuliani, and other conspirators, could follow the same path as the 1865 tribunal. The lackadaisical attitude of Attorney General Merrick Garland toward the January 6th coup attempt demands why he and his department -- continued to be infiltrated by Trump right-wing loyalists like Alexander Haas, the director of the Civil Division’s Federal Programs Branch and Curtis Gannon, the Deputy Solicitor General -- not be relied upon or trusted to ensure that the coup plotters are dealt with effectively and, if found guilty of seditious conspiracy, severely.

merrick garlandIf Garland does not want to "look backward," as he has stated, then it must be a military commission that looks forward in bringing the judicial hammer down on the seditious conspirators of January 6th. Garland, left, can watch the commission's proceedings on television if he so wishes.

In dealing with our country's worst case of sedition since the Civil War, justice for the main perpetrators and planners must be dealt with by thinking "out of the box." The coup plotters had definitely been creative when it came to interpreting election laws and the Constitution by proposing bogus presidential electors, killing off the major leaders of Congress, and declaring a "national security emergency" and imposing martial law.

America must send a clear message to the world: when our democracy is attacked from within, including by the President of the United States, justice is swift and certain.

And, if that means Donald Trump is found guilty of seditious conspiracy and related crimes against the nation and its Constitution, capital punishment should be a primary option for a special military commission to consider. Had the Trump coup been successful, there is no doubt that Trump and his cronies would have been merciless in dealing with those who opposed his attempted seizure of dictatorial power. This nation will not get a second chance to deal with the coup plotters in a determined and swift manner.

Dec. 13


 mark meadows hands out

Politico, Meadows Jan. 5 email indicated National Guard on standby to ‘protect pro Trump people,’ investigators say, Kyle Cheny and Nicholas Wu, Dec. 13, 2021 (print ed.). Mark Meadows, shown above in a file photo, indicated in a Jan. 5 email that the National Guard was on standby to “protect pro Trump people,” according to documents obtained by the House committee investigating the Capitol riot, which the panel described in a public filing Sunday night.

politico CustomThe context for the message is unclear, but it comes amid intense scrutiny of the Guard’s slow response to violence at the Capitol on Jan. 6 and conflicting timelines about their efforts from the Pentagon and National Guard leadership.

It's unclear who Meadows, the former White House chief of staff to Donald Trump, relayed the information to or whether it was the result of any insight provided by the Defense Department.

But the exchange is of high interest to congressional investigators probing whether Trump played a role in the three-hour delay between the Capitol Police's urgent request for Guard support and their ultimate arrival at the Capitol, which had been overrun by pro-Trump rioters. The comment also aligns christopher miller official.jpgwith testimony from former Defense Secretary Christopher Miller, right, who said that in a Jan. 3 conversation with Trump, the then-president told him to "do whatever was necessary to protect the demonstrators that were executing their constitutionally protected rights."

The description of the message is part of a 51-page document released Sunday by the select panel a day before it is set to vote to hold Meadows in contempt of Congress. The full House is expected to vote to hold Meadows in criminal contempt of Congress on Tuesday.

In other messages described by the committee, Meadows appears to have asked members of Congress to help connect Trump with state lawmakers shortly after his defeat in November.

“POTUS wants to chat with them,” Meadows said, according to documents obtained by the Jan. 6 committee and described publicly Sunday evening.

The messages also describe numerous contacts with members of Congress about Trump’s efforts to recruit state lawmakers and encourage them to help overturn the election results. They also included questions about Meadows’ exchanges with members of Congress as they pressed him urgently to issue a statement telling rioters on Jan. 6 to exit the Capitol.

Meadows’ attorney did not immediately respond to a request for comment.

The messages are the clearest insight yet into the conversations Trump was having with senior advisers in the chaotic months after his defeat in which President Donald Trump officialhe sought to cling to power in increasingly desperate ways. Though Meadows turned over thousands of text messages and emails, he has declined to sit for a deposition to discuss those messages, claiming he is barred by executive privilege. The committee and Meadows had reached a tentative agreement for him to come in for an interview, but the pact collapsed last week.

Instead, the committee held a closed-door deposition without Meadows present and described the questions they would have asked him. The transcript of that closed session was appended to the panel’s contempt report, describing the details of the documents Meadows had provided.

“We would have asked him about text messages sent to and received from a Senator regarding the Vice President’s power to reject electors, including a text in which Mr. Meadows recounts a direct communication with President Trump who, according to Mr. Meadows in his text messages, quote, ‘thinks the legislators have the power, but the VP has power Too,’” the panel’s investigators noted.

Meadows' comments on the National Guard's readiness to defend Trump supporters align with concerns that have wracked investigators for months. POLITICO reported in May that a Capitol Police leader similarly encouraged officers to focus on anti-Trump forces within the Jan. 6 crowd, prompting concerns about intelligence failures even as the pro-Trump mob encroached on the Capitol.

The committee pointed out that many of the messages he shared already appeared to violate privilege by describing his own contacts with Trump. He mark meadows book chief chiefalso revealed many of those contacts in his recently released book (shown at right).

The committee described a slew of other messages it obtained from Meadows including:

— Text messages with a “media personality” who had encouraged Trump to issue a statement asking those at the Capitol to “peacefully leave.”

— A text “sent to one of — by one of the President’s family members indicating that Mr. Meadows is, quote, ‘pushing hard,’ end quote, for a statement from President Trump to, quote, ‘condemn this shit.’”

— Texts in December 2020 regarding efforts to install Justice Department official Jeffrey Clark as acting attorney general.

— Texts to and from a member of Congress in November 2020 seeking contact information for the attorney general of Arizona to discuss claims of election fraud.

— Texts to and from organizers of the Jan. 6 rally that preceded the violent attack on the Capitol.

— Texts “reflecting Mr. Meadows’ skepticism about public statements regarding allegations of election fraud put forth by Sidney Powell and his skepticism about the veracity of claims of tampering with Dominion voting machines.”

Powell, who briefly worked with Trump's campaign legal team before leading her own series of lawsuits intended to overturn the election results, was the most notable purveyor of outlandish claims of election fraud. She huddled with Trump at the White House in December 2020. Trump briefly considered naming her a "special counsel" to pursue election fraud.

The context for the message is unclear, but it comes amid scrutiny of the Guard’s slow response to the Jan. 6 violence at the Capitol.

 

U.S. House Jan. 6 insurrection investigating committee members Liz Cheney (R-WY), Adam Kinzinger (R-IL) and Jamie Raskie (D-MD) are shown, left to right, in a file photo.U.S. House Jan. 6 insurrection investigating committee members Liz Cheney (R-WY), Adam Kinzinger (R-IL) and Jamie Raskin (D-MD) are shown, left to right, in a file photo.

Wayne Madsen Report (WMR), Investigative Commentary: The PowerPoint that speaks the truth, Wayne Madsen, left (author of 21 books, syndicated columnist and former Navy intelligence officer), Dec. 13, 2021. Let’s talk about the January 5, 2021 PowerPoint slide show that wayne madsen may 29 2015 cropped Smalldescribes the plot by Donald Trump to cancel the 2020 election and call out the National Guard to enforce a staged re-do of the election, one that would have ensured a Trump win over the actual victor, Joe Biden.

wayne madesen report logoThis has its roots in the info-sphere of Trump's far-right network of retired military officers. That includes former Army psychological operations Lieutenant Colonel Phil Waldron and former Lt. General Michael Flynn, who once led the Defense Intelligence Agency and served as Trump's later-disgraced White House national security adviser.

The PowerPoint was shared by former Trump White House chief of staff Mark Meadows with the House Select Committee investigating the January 6th insurrection. The “insurrection” should properly be called “an attempted coup d'état” involving military and law enforcement assets.

Because the Trump cabal seems to like PowerPoint presentations, WMR has drawn up its own on the Trump-led attempted coup. Widest dissemination of this .PDF is encouraged.

CLICK HERE FOR POWERPOINT

Press Run, Opinion: Slow-walking the coup PowerPoint, Eric Boehlert, right, Dec. 13, 2021. Twelve months after the press shied away from calling Trump’s coup eric.boehlertattempt a “coup,” the Beltway media continue to go slow on the latest revelation about how deeply enmeshed the White House was in its blatant push to sabotage democracy following the Republican’s lopsided loss to Joe Biden.

The discovery of a pro-coup PowerPoint circulating within the White House last winter, designed to nullify millions of American votes, ought to be covered nonstop today, and used as proof that Trump is not suitable to hold office in this country. Instead, the PowerPoint has received mostly passing, disinterested coverage.

Titled “Election Fraud, Foreign Interference & Options for 6 JAN,” the 38-page presentation is a rocket ship ride into the Big Lie abyss. The proposed plan was for Trump to declare a national emergency and for all electronic voting to be rendered invalid, citing foreign “control” of electronic voting systems. The chilling PowerPoint came to light recently when Trump’s fourth and final chief of staff, Mark Meadows, turned the electronic presentation over to investigators at the January 6 Committee. Days later, Meadows stopped cooperating with the panel.

The PowerPoint included plans for Vice President Mike Pence on Jan. 6 to reject electors from “states where fraud occurred.” It also included a proposal in which the certification of Biden’s victory would be delayed, and U.S. marshals and National Guard troops would help “secure” and count paper ballots in supposedly disputed states.

A criminal conspiracy to overthrow last year’s election, the PowerPoint is a heavy-handed plot twist that most Hollywood scriptwriters would dismiss as not being believable. Yet here we are, as Trump plans his re-election run and we learn more about the runaway criminal enterprise he oversaw as president.

We’re learning about it slowly though, and what seems to be reluctantly by the Beltway press, which instead of touting the PowerPoint as a smoking gun that reveals the GOP’s proudly anti-democratic ways, are treating the proposal timidly — an oddity that doesn’t demand much attention. Virtually none of the coverage I’ve seen has included key context, such as quotes from experts on authoritarianism regarding the stunning implications of a White House likely consulting a sabotage plan like that.

“PowerPoint Sent to Mark Meadows Is Examined by Jan. 6 Panel,” was the ho-hum headline the New York Times produced over the weekend. As of Sunday night, there had been no Times follow-up on the story, suggesting the paper does not see the PowerPoint as being overly important or worthy of ongoing coverage.

The coup blueprint still has not appeared on the front page of single major American newspaper, nor has any influential editorial page weighed in. Republican members of Congress have not been repeatedly pressed to explain the document and why, twelve months ago, the president’s chief of staff took a meeting with the author of the unhinged PowerPoint. Or why members of the author’s conspiracy team, just days before the deadly January 6 insurrection, spoke to a group of Republican senators and House members, briefing them on the bogus claims of foreign interference in the election.

As of Sunday afternoon, “PowerPoint” had been mentioned just 20 times on CNN in the previous week, 50 times on MSNBC, and to nobody’s surprise, 0 times on Fox News. There has not been a single network evening news mention, according to a search of Nexis.

The media’s shoulder shrug response has left Democrats perplexed and enraged. “Can someone explain to me why this isn’t the only thing in the news?” tweeted Sen. Brian Schatz (D-HI). “I deeply respect the fourth estate, but, holy shit they had a plan to just end democracy, and is the press gonna just be like “are democrats using the wrong words again?”

There’s a long and disturbing history of the press sleepwalking through this coup story. The press embraced a timid storyline immediately following Trump's defeat as he unleashed a vicious campaign against free and fair elections in America.

Instead of detailing his treasonous, post-election behavior surrounding the would-be coup as a power-hungry authoritarian out to steal an election, news consumers received updates about Trump’s “tactics,” his vague “moves” and “chicanery”; his legal “strategy” and “power play” while he was “sulking” and “brooding” inside the White House.

One Politico dispatch at the time dismissed Trump’s anti-democratic behavior as merely “bad sportsmanship.”

Back in October 2020, when he was asked whether he would agree to the peaceful transfer of power if he lost, Trump became the first president in American history to balk at the centerpiece of our democratic tradition. The Times placed the story inside the paper on page 15, gently noting that Trump had "declined an opportunity on Wednesday to endorse” the idea. "Trump Won't Commit to Peaceful Transfer of Power" should have been the headline on the front page of every major newspaper in America. It didn't appear on a single one.

Now they’re sleepwalking past the coup.

Dec. 12

Palmer Report, Opinion: Mark Meadows email blows open January 6th National Guard scandal, Bill Palmer, right, Dec. 12, 2021. One of the biggest unanswered bill palmerquestions surrounding the January 6th Capitol attack was the delayed response of the Washington DC National Guard. Various people have made various excuses for the hours-long delay, all of which have sounded suspicious – raising the question of whether the Trump White House may have delayed sending in the National Guard on purpose in order to protect the pro-Trump people who attacked the Capitol.

bill palmer report logo headerNow we appear to be getting an answer. The January 6th Committee just released a fifty-plus page document recommending that White House Chief of Staff Mark Meadows be referred for criminal contempt. In that document, the committee spells out various things it would have asked Meadows if he’d shown up and testified. One of those questions is why Meadows sent an email on January 5th stating that the National Guard was on standby to “protect pro Trump people.”

Mark MeadowsSo what does this even mean? The darkest interpretation would be that the Trump White House knew the January 6th Capitol attack was coming, and decided that if the National Guard was going to be used at all, it would only be on the side of the pro-Trump terrorists.

Meadows, right, and his defense lawyers might try to argue that the National Guard was really on standby to protect against “Antifa” or other anti-Trump groups. But in such case, why would the National Guard be protecting pro-Trump people from anti-Trump people? Wouldn’t it still be protecting the Capitol from anti-Trump people?

The most obvious interpretation here is that Donald Trump refused to send in the National Guard to fend off the Capitol attackers because he’d already decided to use the National Guard to help protect the Capitol attackers from other law enforcement personnel. Keep in mind that the DC National Guard is technically part of the U.S Army. So if this is the proper context for the Meadows email, then it means Trump directed the U.S. military to side with domestic terrorists and against the United States Congress.

If it comes down to it, Donald Trump will try to pin the entire thing on Mark Meadows. At that point Meadows would have to flip on Trump just to avoid potentially spending the rest of his life in prison, and Meadows had better hope he’s got evidence up his sleeve that proves the orders came from Trump.

Of course that’s all getting a few steps ahead. For now Mark Meadows is being referred for criminal contempt, and based on how serious the referral is, the Department of Justice is highly likely to indict and arrest Meadows for contempt. That’s all before getting to whatever underlying criminal charges Meadows (and others, including Trump) might end up facing as a result of the criminal activity documented in evidence such as these emails.

Dec. 10

washington post logoWashington Post, Supreme Court says Texas abortion providers may proceed with challenge of six-week ban, leaves law in effect for now, Robert Barnes, Dec. 10, 2021. The Supreme Court on Friday said that Texas abortion providers may sue to stop the state’s ban on most abortions after six weeks, but left the law in place for now.

The splintered decision allows the providers to return to a district judge who once blocked the law, saying it violated the constitutional right to abortion.

That restarts the legal process that has seen the law remain in effect since Sept. 1, when the Supreme Court refused to step in to block it.

Eight justices said the abortion providers may bring the challenge. Chief Justice John G. Roberts Jr., writing for himself and the court’s three liberals, said the district judge should act quickly.

“Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay,” Roberts wrote.

The decision was both a partial victory and a disappointment for abortion rights supporters. They had asked the court to block the law while the legal process continued, but have not found the necessary five votes.

Justice Clarence Thomas wrote that he would not have allowed the lawsuit to continue. Justice Sonia Sotomayor, on the other hand, was critical of the decision not to block the law, called S.B. 8. “The Court should have put an end to this madness months ago, before S.B.8 first went into effect,” she wrote. “It failed to do so then, and it fails again today.”

While the case over Texas’s law is procedural, the Supreme Court since then has signaled it is ready to make dramatic changes in the judicial rules governing abortion rights. In debating a Mississippi law that bans almost all abortions after 15 weeks, some justices earlier this month indicated they are open to overturning Roe v. Wade, which for nearly 50 years has said there is a constitutional right to abortion before fetal viability.

Dec. 9

washington post logo

Washington Post, Supreme Court’s conservatives critical of tuition plan excluding religious schools, Robert Barnes, Dec. 9, 2021. The case involves an unusual program in Maine that affects only a few thousand students. But it could have greater implications as the more conservative court relaxes the constitutional line between church and state.

Conservatives on the Supreme Court seemed ready Wednesday to extend a line of recent rulings favoring religious interests, and they were critical of a Maine tuition program that does not allow public funds to go to schools that promote religious instruction.

The case involves an unusual program in a small state that affects only a few thousand students. But it could have greater implications as the more conservative court relaxes the constitutional line between church and state.

Under the program, jurisdictions in rural areas too sparsely populated to support public schools of their own can arrange to have nearby schools teach their school-age children. Or the state will pay tuition to parents to send their kids to private schools. But those schools must be nonsectarian, meaning they cannot promote a faith or belief system or teach “through the lens of this faith,” in the words of the state’s department of education
The idea, Maine chief deputy attorney general Christopher C. Taub told the justices, is to provide students a “rough equivalent” of a public school education.

Schools that actively promote religion are not permitted, Taub said, because “Maine has determined that, as a matter of public policy, public education should be religiously neutral.”

The two families who brought the case to the Supreme Court, with the help of the libertarian Institute for Justice, are asking for special treatment, Taub said.

They “want an entirely different benefit, instruction designed to instill religious beliefs at taxpayer expense.”

Dec. 8

ny times logoNew York Times, ‘Court Packing’ Issue Divides Commission Appointed by Biden, Charlie Savage, Dec. 8, 2021 (print ed.). The bipartisan commission appointed by President Biden to study possible changes to the federal judiciary unanimously approved a final report on Tuesday that flagged “profound disagreement” among its members over the issue that led to the panel’s creation: calls to expand or “pack” the Supreme Court with additional justices.

By a vote of 34 to 0, the commission approved a 288-page report that offered a critical appraisal of arguments for and against that and many other ideas for changes to the Supreme Court, including imposing 18-year term limits on justices and reducing their power to strike down acts of Congress.

But the group did not offer specific recommendations. That result was in line with the mandate given to the commission by Mr. Biden, but also underscored the lack of consensus and suggested that the report might do little in the short run to drive any particular ideas for change.

“Given the size and nature of the commission and the complexity of the issues addressed, individual members of the commission would have written the report with different emphases and approaches,” the report said. “But the commission submits this report today in the belief that it represents a fair and constructive treatment of the complex and often highly controversial issues it was charged with examining.”

The report comes as the Supreme Court’s expanded conservative bloc is considering blockbuster changes to the law, including whether to overturn Roe v. Wade’s nearly 50-year-old precedent on abortion rights. But while the report is addressed to Mr. Biden, most of the changes it weighs would require an act of Congress or a constitutional amendment — both difficult in the sharply divided climate.

The report grew out of an intensely political moment for the court. After Republicans blocked President Barack Obama from filling a vacancy in early 2016, leaving the seat open for a year on the argument that the winner of that year’s election should fill it, they rushed to confirm an appointee of President Donald J. Trump during the final days of the 2020 election after Justice Ruth Bader Ginsburg’s death.

Those maneuvers cemented a 6-to-3 conservative majority on the Supreme Court even though Democrats have won the popular vote in seven of the last eight presidential elections. That outcome, along with Supreme Court rulings permitting greater restrictions on voting, led some liberals to propose that Democrats should expand the number of justices to rebalance the court.

Rather than take a clear position on that issue during the final weeks of the campaign, Mr. Biden said he would appoint a panel to study it if elected. In that sense, the commission has already achieved its main political function: enabling him to get past the election without taking a polarizing stand for or against the idea.

Brian Fallon, the executive director of Demand Justice, a liberal group that supports expanding the number of justices, portrayed the commission as a waste of time.

“The best thing about this commission is that it’s finally over and the Biden administration will be forced to now confront the question of what to do about this partisan Supreme Court,” he said.

But the commission — led by Bob Bauer, a former White House counsel to Mr. Obama, and Cristina Rodríguez, a Yale Law School professor who served in the Justice Department during the Obama administration — saw its mission as illuminating difficult and complex issues rather than providing ammunition to one side.

It had been unclear until the meeting on Tuesday whether such an ideologically diverse group would manage to produce a document about such contentious issues and upon which it could unanimously agree. Several commissioners said they would not have written the report in the same way had it been their work alone, but nevertheless praised it as a valuable guiding document to thinking seriously about court reform issues.

David Levi, a former dean of Duke Law School and a former federal judge, said he was voting for the report as a fair assessment of the issues even though he strongly opposed proposals to change the court’s composition or limit its jurisdiction. He warned that such ideas would curtail the judiciary’s independence, undermining the rule of law, and reflected what autocrats abroad had done to eliminate challenges to their power.

Another former federal judge, Nancy Gertner, who is now a Harvard Law School professor, also praised the report, even as she argued for expanding the number of justices. She said that the Supreme Court’s legitimacy had been undermined by Republican efforts to “manipulate its membership,” and that its majority was enabling rollbacks of voting rights that otherwise would lead the court’s composition to evolve in response to the results of free and fair elections.

“This is a uniquely perilous moment that requires a unique response,” she said, adding, “Whatever the costs of expansion in the short term, I believe, will be more than counterbalanced by the real benefits to judicial independence and to our democracy.”

Walter Dellinger, a Duke University law professor and former senior Justice Department lawyer in the Clinton administration, observed that it was not clear when there would be a faction with sufficient political power to change the structure of the court. He suggested that the ultimate audience for the report might come years in the future.

“We were not writing a report for the next four months or even the next four years,” Mr. Dellinger said. “We hope that the report’s explication of the issues,” he added, “might be useful a century from now.”

Dec. 7

washington post logoWashington Post, Biden’s Supreme Court commission set to vote on final report, Ann E. Marimow, Dec. 7, 2021. A bipartisan panel of legal scholars examining possible changes to the Supreme Court will vote Tuesday on whether its final report, which describes bipartisan support for imposing term limits but “profound disagreement” about adding justices, should be sent to President Biden for consideration.

Biden assembled the commission in response to demands from Democrats to restore what they called ideological “balance” on the court, now with three liberals and six conservatives, including three justices picked by President Donald Trump. The commission released a draft of its report late Monday.

It is not known whether the Biden administration will act on any of the policies detailed in the nearly 300-page report, which does not recommend a certain path to follow, but lays out arguments on either side.

When asked about Biden’s plans for responding to the report, White House press secretary Jen Psaki said Monday that the president would review the findings, but there is no definitive timeline for action.

“It’s not recommendations that he either accepts or denies,” Psaki told reporters. “He’ll have to review it first and I don’t think we’re going to set a timeline for what that looks like and what it will mean after that.”

Calls for overhauling the court began after the Republican-controlled Senate blocked President Barack Obama’s nominee in 2016 and found renewed urgency after the Senate rushed through the nomination of Amy Coney Barrett to replace the late liberal Justice Ruth Bader Ginsburg, who died late last year.

The Supreme Court’s approval rating among the public has dropped to a new low, prompting some justices to come forward and to defend its independence as they consider highly contentious cases involving gun rights, religious freedom and abortion.

The Supreme Court’s liberal justices warned last week in debating Mississippi’s 15-week abortion ban that the court’s reputation would be severely damaged if it were to overturn the long-standing constitutional right following a change in the court’s membership.

Gabe Roth, director of Fix the Court, said he never expected the commission to endorse one structural reform proposal over another, but that “it’s clear from the language of the report that the Commissioners, much like the American people, are much more sanguine on term limits than court expansion.”

Dec. 5

senate democrats logo

ny times logoNew York Times, After Success in Seating Federal Judges, President Biden Hits Resistance, Carl Hulse, Dec. 5, 2021. Senate Democrats vow to keep pressing forward with nominees, but they may face obstacles in states represented by Republicans.

Tennessee Republicans have raised objections to Mr. Biden’s pick for an influential appeals court there — the administration’s first judicial nominee from a state represented by two Republican senators — and a circuit court candidate is likely to need every Democratic vote to win confirmation in a coming floor showdown.

joe biden resized oThe obstacles threaten to slow or halt a little-noticed winning streak for the Biden administration on Capitol Hill, where the White House has set a rapid pace in filling vacancies on the federal bench, even surpassing the rate of the Trump era, when Republicans were focused almost single-mindedly on confirming judges.

In contrast to the administration’s struggle on its legislative agenda, the lower-profile judicial push has been one of the highlights of the first year of the Biden presidency. Democrats say they intend to aggressively press forward to counter the Trump judicial juggernaut of the previous four years, and they may have limited time to do so, given the possibility of losing control of the Senate in next year’s midterm elections.

“We are taking this seriously,” said Senator Richard J. Durbin, Democrat of Illinois and the Judiciary Committee chairman, who plans to advance nominees through the end of the year and beyond. “We are going to move everything we can legally move.”

Mr. Biden, a former Judiciary Committee chairman with deep expertise on the confirmation process, has sent the Senate 64 judicial nominations, including 16 appeals court picks and 46 district court nominees. That is the most at this point of any recent presidential term dating to Ronald Reagan. Twenty-eight nominees have been confirmed — nine appeals court judges and 19 district court judges.

By comparison, Mr. Trump had sent the Senate 57 judicial nominees, 13 of whom were confirmed, by mid-November 2017. At the end of four years, Mr. Trump had won confirmation of three Supreme Court justices, 54 appeals court judges and 174 district court judges.

Mr. Biden’s nominees are extraordinarily diverse in both legal background and ethnicity. The White House and liberal interest groups have been promoting public defenders and civil rights lawyers in addition to the more traditional choices of prosecutors and corporate lawyers. According to the White House, 47 of the 64 nominees are women and 41 of them identify as people of color, allowing the administration to record many firsts across the judiciary.

“The diversity is really greater than anyone could have hoped for,” said Russ Feingold, a former senator and the head of the American Constitution Society, a progressive group that has been active in recommending nominees to the White House. “People are ecstatic.”

supreme court Custom

ny times logoNew York Times, Analysis: What would a reversal of Roe v. Wade mean for the Supreme Court’s credibility? Adam Liptak, right, Dec. 5, 2021 (print ed.). As adam liptakjustices consider Mississippi’s restrictive abortion law, scholars debate what a reversal of Roe v. Wade would mean for the court’s credibility.

Donald J. Trump, who appointed three Supreme Court justices while president, vowed that they would help overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion. In arguments on Wednesday, there were more than a few signs that Mr. Trump had succeeded.

The court’s three Democratic-appointed justices, sounding anguished and angry, said that overruling Roe soon after a bare-knuckled political campaign to change the court’s membership would represent a tipping point, one from which the court’s legitimacy could not recover.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked.

If the Supreme Court is perceived to be made up of politicians rather than judges, Justice Stephen G. Breyer said, “that’s what kills us as an American institution.”

The case illuminates competing and shifting conceptions of the role of the court. For decades, conservatives have argued that Roe amounted to judicial activism, announcing a right not found in the Constitution and overriding the political process to achieve an outcome that politicians would not.

Now, after nearly half a century in which that right has been woven into the societal fabric, the argument may have come full circle, with many liberals saying that a decision by the court to eliminate the right to abortion would amount to flagrant political activism.

Both arguments are grounded in concerns about the court’s legitimacy, which were brought into sharper focus by Wednesday’s proceedings.

“Questions about the court’s legitimacy are more pitched than they ever have been,” said Melissa Murray, a law professor at New York University.

Should the court overrule Roe, she added, it will represent a turning point signaling that “the court has been weaponized for political purposes.”

But Nicole Garnett, a law professor at Notre Dame, said there was just one sound way to assess the status and stature of the court.

“The only real measure of the court’s legitimacy is whether the justices are following their oath to uphold the Constitution and the rule of law,” she said.

Overturning Roe, she added, would let states decide whether and when to allow abortions. “The court would enhance its credibility and legitimacy as a judicial rather than a political body,” she said, “if it returned the question of abortion regulation to the people.”

As those dueling perspectives reflect, there is no consensus about what legitimacy means. Richard H. Fallon Jr., a law professor at Harvard and the author of “Law and Legitimacy in the Supreme Court,” said there were two primary definitions.

One is moral, expressing a judgment about whether the court deserves to be respected. The second is sociological, based on whether people trust the court to make fair and unbiased judgments. Only that second sense, he said, can be captured in public opinion polls.

Recent polls — taken after the court allowed a Texas law that bans abortions after six weeks to take effect in September, but before Wednesday’s arguments — suggest that Justices Sotomayor and Breyer were right to worry about the court’s standing.

A Quinnipiac University poll last month found that 61 percent of Americans said the Supreme Court was mainly motivated by politics, while 32 percent said it was mainly motivated by the law. Three years ago, the corresponding numbers were 50 and 42 percent.

 

amy coney barrett 9 12 2021

U.S. Supreme Court Associate Justice Amy Coney Barrett speaks to an audience at the 30th anniversary of the University of Louisville McConnell Center on Sept. 12. (Timothy D. Easley/AP)

washington post logoWashington Post, Perspective: Barrett is wrong: Adoption doesn’t ‘take care of’ the burden of motherhood, Gretchen Sisson, Dec. 5, 2021 (print ed.). This view of adoption and abortion has failed American women.

During Wednesday’s oral arguments in Dobbs v. Jackson Women’s Health Organization, the Supreme Court heard a direct challenge to Roe v. Wade. Through her questioning, Justice Amy Coney Barrett pursued a line of inquiry premised on the ability of women to relinquish their infants for adoption soon after childbirth. “It doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden,” said Barrett. Didn’t the existence of adoption options, including “safe-haven laws,” relieve women of the “obligations of motherhood that flow from pregnancy” and thus “take care of that problem”?

The argument is that adoption allows women to quickly move on with their lives after giving birth; they do not need access to abortion to maintain control of their futures. This might be a novel assertion to hear from a Supreme Court justice, but it is not a new narrative for our country. We only have to look back before Roe, compare that to data from today and listen to women’s stories of relinquishment — as I have in my research, conducting more than 100 interviews with mothers who relinquished infants since 1962 — to see how this view of adoption has failed American women.

Gretchen Sisson is a research sociologist at Advancing New Standards in Reproductive Health in the Department of Obstetrics, Gynecology and Reproductive Science at the University of California, San Francisco, where she studies abortion and adoption in the United States.

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

washington post logoWashington Post, Perspective: Sotomayor saw she couldn’t sway her colleagues. So she talked to us instead, Melissa Murray (Melissa Murray is the Frederick I. and Grace Stokes professor of law at New York University), Dec. 5, 2021 (print ed.). The liberal justice signaled that the next round of the abortion fight might be political, not legal.

Justice Sonia Sotomayor, below left, now the anchor of the Supreme Court’s dwindling left flank, cut to the heart of the matter with her first question in sonia sotomayor in scotus robe1Wednesday’s oral argument over Mississippi’s abortion law, which forbids the procedure after 15 weeks of pregnancy. As she noted, the legislators who drafted and passed the law did so with the explicit hope that the court’s new conservative supermajority — solidified during the Trump administration — would use it as a vehicle for overruling Roe v. Wade. If her new colleagues seize that opportunity, she asked, “will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

The question was nominally directed at Mississippi’s lawyer, who was defending the abortion law and urging the court to dismantle almost 50 years of jurisprudence on reproductive rights. But in truth, Sotomayor was speaking to three of her colleagues — the chief justice and the court’s newest amy coney barrett headshot notre dame photomembers, Justices Brett M. Kavanaugh and Amy Coney Barrett, right — in the hope that institutionalism would prevail over ideology.

As the argument proceeded, however, she seemed to recognize that the votes to preserve current law — whether Roe as a whole or the standard of fetal viability that has long shaped when states can regulate abortion — simply weren’t there. And she began to speak as if to the public rather than to the justices, signaling that while the situation in the courts looks grim for abortion rights advocates, their political fight will, and must, continue.

Sotomayor’s initial appeal to Chief Justice John G. Roberts Jr. was an obvious move. Of all the court’s members, Roberts is well-known as an institutional stalwart — someone who prioritizes the court’s legitimacy and public standing, even when doing so places him at odds with conservative sensibilities. He famously cast the crucial fifth vote to save the Affordable Care Act in 2012, and in 2020, he joined the court’s liberal wing to strike down a Louisiana abortion law on the grounds that his vote was compelled by stare decisis, the principle that the court’s past decisions must be followed in almost all circumstances.

In recent years, Roberts’s institutional proclivities have been coupled with a strategic use of his persuasive powers to cajole some of the court’s more junior members over to his position. Sotomayor no doubt hoped that an appeal to institutionalism might activate Roberts as an ally in enlisting Kavanaugh and Barrett, the two justices who have been most receptive to the chief’s overtures, in a campaign to preserve precedent — and the court’s standing with the public.

It wasn’t necessarily a pipe dream. After all, only a few weeks earlier, Barrett gave a speech at the University of Louisville’s McConnell Center rebutting the notion that she and her colleagues were “partisan hacks.” That is precisely the impression that Roberts, too, wants to deflect.

But within the first 30 minutes of oral arguments, it was clear that Sotomayor’s institutionally minded optimism had curdled. The chief justice showed no interest in preserving Roe and Casey’s status quo, and pursued instead the prospect of brokering some compromise that would uphold the Mississippi law while stopping just short of overruling the earlier decisions.

Kavanaugh and Barrett plainly seemed uninterested in compromising. In a series of questions, Kavanaugh gestured toward a post-Roe world in which the court was no longer the arbiter of abortion rights, leaving the issue to the states. And in a truly surprising move, Barrett brought “safe-haven laws” into the discussion. These permit parents to terminate their parental rights by surrendering newborns for adoption at designated sites. Barrett’s line of questioning suggested that, because such laws relieved women of the burdens of “forced parenting, forced motherhood,” restrictions on abortion posed few constitutional burdens.

As a young lawyer, I had the privilege of clerking for Sotomayor when she was a judge on the U.S. Court of Appeals for the Second Circuit. Then, as now, her approach to judging was underlaid with a shrewd pragmatism. Which is why I was not surprised when she appeared to change course as she sensed no openings from those three colleagues.

All the conservatives seemed to be embracing a cataclysmic reordering of the reproductive rights landscape. If the chief justice prevailed, the viability line would be eliminated as a salient marker in the court’s jurisprudence. If the court’s even more conservative bloc prevailed, Roe and Casey would fall. Either way, the consequences for American women would be devastating.

Sotomayor therefore started to direct her questions beyond the marble walls at 1 First Street NE, to the American people themselves. In stark and bracing terms, she articulated the stakes for women, centering their voices and experiences in the debate.

When Mississippi’s lawyer, Scott Stewart, suggested that the abortion question should be decided through state-level political deliberation, Sotomayor was quick to interject. “When,” she demanded, “does the life of a woman and putting her at risk enter the calculus?” When Stewart suggested that the viability standard should be abandoned because it was not specifically enumerated in the Constitution, Sotomayor reminded him that “there’s so much that’s not in the Constitution.” Indeed, as she recounted, the text says nothing about judicial review — the court’s duty to interpret the Constitution and “say what the law is.” That constitutional innovation, like Roe and Casey, was a result of judicial interpretation of the broader principles undergirding the document. And if Roe is struck down, she noted, other decisions that relied on similar logic — including those establishing a right to use contraception and a right to same-sex marriage — could fall, too.

Her nod to Marbury v. Madison, the 1803 case that enshrined the principle of judicial review, was a reminder of the concept of jurisprudence — the work judges and courts do to interpret the law and protect rights. But Sotomayor was suggesting that the court need not have the last word on abortion.

Not with a Jan. 6-style insurrection but with the sort of grass-roots energy that once fueled the civil rights movement and other progressive social causes. This could take many forms, such as enacting the congressional bill that would codify Roe’s protections, turning state legislatures blue so as to stanch the stream of increasingly restrictive abortion laws and building broader support for telemedicine and the distribution of pills that can induce abortion in a private setting.

washington post logoWashington Post, Perspective: How backroom politics helped Roe survive a 1992 challenge, Bob Woodward (right, author and Washington Post bob woodward headshotassociate editor), Dec. 5, 2021 (print ed.). David Souter, the swing vote then, nearly abandoned his nomination.

The Supreme Court this past week heard oral arguments over a Mississippi abortion law in a case that poses the starkest challenge to Roe v. Wade since 1992’s Planned Parenthood v. Casey. That case saw a 5-to-4 vote to reaffirm the constitutional right to abortion, though it did allow states to establish some restrictions.

But Casey might not have turned out that way. In 1990, when the liberal Justice William Brennan retired, court-watchers anticipated another move against Roe. President George H.W. Bush’s White House considered several candidates for the open seat: Clarence Thomas, whom Bush would nominate to the high court in 1991, was seen as too inexperienced as an appeals judge. Kenneth Starr, then the solicitor general and later the independent counsel investigating President Bill Clinton, didn’t seem conservative enough. Instead, Bush opted for David H. Souter, a 50-year-old federal appeals court judge in New Hampshire, who the administration believed would back abortion restrictions at the court. Moderate Sen. Warren Rudman (R-N.H.), Souter’s best friend, was his champion in Washington.

This account of Souter’s confirmation — and how he came to be the swing vote that saved Roe in 1992 — was originally published in my 1999 book, Shadow. It’s based on recorded interviews with Rudman, now deceased, and with Bush White House officials.

Bush nominated Souter. The press began to investigate. In an Aug. 6, 1990, cover story on Souter, Time magazine reported on “speculation that Souter is homosexual.” The Washington Post in a Style section profile noted that there was “a flurry of speculation that the Supreme Court might be getting its first gay justice.” There were never any specifics or details, simply that the bookish, gentle Souter and his lifelong bachelorhood seemed to fit the stereotype.

supreme court amazon imagesRudman was outraged. He had known Souter for 20 years. The printed rumors were irresponsible and reflected a grotesque intolerance — not just for homosexuality but toward anyone who might choose to live alone and differently. Rudman was convinced that Souter loved the law and his privacy above all else. It would be monstrous if this issue somehow became part of the Senate or public debates. Rudman had already dropped everything to focus on his friend’s nomination. He made it his single cause, escorting him for personal sessions with most of the 100 senators, counseling him and pouring his considerable energy into getting his friend confirmed. Before the formal confirmation hearings were to begin in September, Souter and Rudman got word that a New York gay newspaper was planning an “outing” of Souter’s alleged secret gay life.

That night, Souter and Rudman went to the senator’s apartment at the Harbour Square in Washington, overlooking the Potomac River. Souter had a salad, Rudman a sandwich. Souter was unusually quiet. About 10 p.m., his frustration spilled out.

“If I had known how vicious this process is,” Souter told his friend, “I wouldn’t have let you propose my nomination.” He wished he had not accepted the nomination. It had been a mistake. The anguish of scrutiny was too great a price to pay. Souter said he was going to phone Bush and insist that his nomination be withdrawn.

Rudman was beside himself. He argued forcefully that Souter had to be tough. He should not throw away the nomination on these side issues, even though they might strike at his soul.

At that moment, the future of Roe v. Wade hung in the balance. The newest member of the Supreme Court was likely to be the deciding vote. The court had four members hostile to Roe, and Bush was nominally in favor of overturning it. Although Rudman maintained that he had not talked directly with Souter about Roe, he was certain that Souter would not vote to overturn the decision if he made it to the high court. Rudman, who was pro-choice, felt strongly that abortion was in part a matter of compassion, and he believed that Souter was compassionate and would see the brutality in taking away a women’s right to choose abortion. Rudman also knew that Souter believed in the principle of not overturning Supreme Court precedents unless there was an overwhelming argument. For practical purposes, Rudman was planting a pro-choice mole on the high court. Much more than Souter’s future was at stake.

But Souter was determined to withdraw.

“It’s your destiny to serve on the Supreme Court,” Rudman argued. “This is your destiny. The court needs you.”

No, Souter said, he was taking himself out. He was going to call Bush that moment, and he moved toward the telephone in the small third-floor apartment.

Rudman, a large man who had served in combat during the Korean War, grabbed Souter’s small, wiry frame and restrained him physically.

Souter resisted, trying to make his way to the telephone. Rudman felt he had no choice. He physically held onto his friend or blocked his access to the phone for what seemed like nearly an hour. Wait, ride it out, think, Rudman argued vehemently. His phone was not going to be used to withdraw. Souter, for all his mildness, was tough and he fought back. He eventually had a Scotch, and Rudman, still keeping him from the phone, drank a bourbon. It took hours before the storm finally passed. By 3 a.m., Souter had agreed to stay and fight.

When Bush heard indirectly that Souter had almost withdrawn, he shuddered. What in the world was happening to America? The gay newspaper never published an article, and nothing concrete ever surfaced about his alleged sexual preference, but what if it had?

At his Senate confirmation hearings, Souter declined to take a position on Roe, but he explained his understanding of the duties of a judge and a justice of the Supreme Court in what he called the “stewardship of the Constitution.” He added: “At the end of our task some human being is going to be affected. Some human life is going to be changed in some way by what we do. . . . We had better use every power of our minds and our hearts and our beings to get those rulings right.”

The Senate confirmed Souter by a vote of 90 to 9.

Two years later, Souter and two other justices wrote a highly unusual three-justice signed opinion, joined by two others, upholding Roe v. Wade. Rudman was coming back from New York by train the day the decision in Casey was announced. He was overjoyed, certain that Souter had played a pivotal role. The efforts of the Reagan and Bush administrations and the religious right to overturn Roe were probably defeated forever, Rudman calculated. In the train station, he ran into Sen. Joe Biden (D-Del.), who had chaired the Senate Judiciary Committee during the Souter confirmation hearings. Biden was equally delighted that Roe had been affirmed. The two senators embraced, laughed, yelled and even cried.

“You were right about him,” Biden said. “Did you read that opinion? You were right!”

Twenty-nine years later, Biden still supports Roe. But now he’s president, and it may be on his watch that Roe is substantially altered — or overturned.

Bob Woodward is an associate editor of The Washington Post, where he has worked since 1971. He has shared in two Pulitzer Prizes, first in 1973 for the coverage of the Watergate scandal with Carl Bernstein, and second in 2003 as the lead reporter for coverage of the 9/11 terrorist attacks.

washington post logoWashington Post, Perspective: The court controls its own fate, Ray Brescia, Dec. 5, 2021 (print ed.). Ray Brescia is a professor at Albany Law School and the author of "The Future of Change: How Technology Shapes Social Revolutions."

The U.S. Supreme Court is working through one of its most consequential dockets of cases in recent memory, tackling everything from abortion to gun rights. It does so amid public discontent: Recent polling suggests that public opinion of the court is at its lowest point since 2004, when the poll was first conducted.

This roiling discontent and the sense that the court is operating in a nakedly partisan way prompted President Biden to impanel a bipartisan commission to assess whether structural reforms are necessary to regain the public’s confidence that the court serves the people and not narrow and unpopular political goals. That commission is slated to issue its final report in early December.

Ironically, perhaps, the cases on the docket — more so than the commission report — will shape the future of the court. Despite the occasional protest by the justices to the contrary, the court has traditionally paid enough attention to public sentiment to safeguard its legitimacy — without which it has very little power. As the justices confront backlash and charges of partisanship, a Justice Roberts from another era offers a guide for how the court can rebuild public confidence that it serves as a defender of democracy, the rule of law and fundamental rights.

ny times logoNew York Times, Editorial: Who Will Hold Prosecutors Accountable? Editorial Board, Dec. 5, 2021 (print ed.). Prosecutors are among the most powerful players in the criminal justice system. They can send a defendant off to years in prison, or even to death row. Most wield this power honorably. Yet, when prosecutors don’t, they rarely pay a price, even for repeated and egregious misconduct that puts innocent people behind bars.

Why? Because they are protected by layers of silence and secrecy that are written into local, state and federal policy, shielding them from any real accountability for wrongdoing.

New York City offers a prime example of a problem endemic to the nation. Consider the city’s official reaction to the barrelful of misconduct in Queens that a group of law professors recently brought to light. As The Times reported last month, the professors filed grievances against 21 prosecutors in the borough — for everything from lying in open court to withholding key evidence from the defense — and then posted those grievances to a public website.

These weren’t close calls. In every instance an appeals court had made a finding of prosecutorial misconduct; in many cases the misconduct was so severe that it required overturning a guilty verdict and releasing someone from prison. Three men wrongfully convicted of a 1996 murder were exonerated after 24 years behind bars. But that rectified only the most glaring injustice. To date, none of the prosecutors have faced any public consequences. Some are still working.

How did the city respond to this litany of widespread misconduct by its own agents? It went after the professors who publicized it.

New York’s prosecutor-protection racket is, alas, far from unique.

In Washington, the Justice Department aggressively shields its own prosecutors from outside accountability thanks to a 1988 law that lets the agency essentially police itself. All other federal agencies — and even parts of the Justice Department, like the F.B.I. and the Drug Enforcement Administration — are subject to oversight by independent inspectors general, who conduct thorough investigations and issue lengthy reports with their findings.

Federal prosecutors skate by on an internal review process that is run out of the Office of Professional Responsibility, whose head is appointed by, and reports directly to, the attorney general. The office almost never makes its findings public, and when it does it often provides only a brief summary months after the fact. In the words of one legal-ethics expert, it’s a “black hole.” (By contrast, the inspector general’s office of the Justice Department just released its semiannual report, as it is required to do by law, detailing the 52 reports it issued between April and September of this year, as well as the closing of investigations that resulted in 68 convictions or guilty pleas and 66 firings, resignations or disciplinary actions.)

The level of scrutiny that federal prosecutors are subject to matters so much because they are just as prone to misconduct as their state and local counterparts. Take the botched prosecution of former Senator Ted Stevens of Alaska on corruption charges, or the legal green light Justice Department lawyers gave interrogators to torture terrorism suspects, or the more recent revelation that Jeffrey Epstein, the sexual predator, got a sweetheart deal in 2008 from his prosecutor, Alex Acosta, who later became labor secretary in the Trump administration. Yet in the latter two cases, the Office of Professional Responsibility found no misconduct. Mr. Acosta was guilty only of “poor judgment,” the office said. In the Stevens case, the office found misconduct but said it was unintentional, and it let the prosecutors off with a slap on the wrist. Have there been other similarly egregious failures to hold prosecutors to account? Almost certainly. But we don’t know because the Justice Department doesn’t tell us.

dick thornburghThere is no principled reason for federal prosecutors to avoid the accountability expected of all public servants. Their exemption from the general rule was adopted in 1988 as a favor to Dick Thornburgh, left, who was then the attorney general and had tried to derail the creation of an inspector general for the Justice Department. Years later, Mr. Thornburgh admitted he had been wrong. “This is a highly professional operation that goes where the evidence leads and is not directed by the way the political winds are blowing,” he said at a gathering marking the law’s 25th anniversary in 2014. “I’ve come to be a true believer.”

So have large numbers of Republicans and Democrats in Congress, a remarkable fact at a moment when the parties can’t agree on the time of day. Their fix is straightforward: Eliminate the loophole in the 1988 law and empower the inspector general to review claims against federal prosecutors, just as the office currently does in cases involving other Justice Department employees. A Senate bill co-sponsored by Mike Lee, Republican of Utah, and Dick Durbin, Democrat of Illinois, would do exactly this. Yet Attorney General Merrick Garland is continuing in the tradition of his predecessors by opposing any change to the existing system.

Prosecutors can work in the interests of fairness and justice, but they can also cheat and destroy people’s lives. They should be held accountable when they do — both to vindicate their victims and to help ensure that they can’t do it again.

 

 

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ny times logoNew York Times, After Success in Seating Federal Judges, President Biden Hits Resistance, Carl Hulse, Dec. 5, 2021. Senate Democrats vow to keep pressing forward with nominees, but they may face obstacles in states represented by Republicans.

Tennessee Republicans have raised objections to Mr. Biden’s pick for an influential appeals court there — the administration’s first judicial nominee from a state represented by two Republican senators — and a circuit court candidate is likely to need every Democratic vote to win confirmation in a coming floor showdown.

joe biden resized oThe obstacles threaten to slow or halt a little-noticed winning streak for the Biden administration on Capitol Hill, where the White House has set a rapid pace in filling vacancies on the federal bench, even surpassing the rate of the Trump era, when Republicans were focused almost single-mindedly on confirming judges.

In contrast to the administration’s struggle on its legislative agenda, the lower-profile judicial push has been one of the highlights of the first year of the Biden presidency. Democrats say they intend to aggressively press forward to counter the Trump judicial juggernaut of the previous four years, and they may have limited time to do so, given the possibility of losing control of the Senate in next year’s midterm elections.

“We are taking this seriously,” said Senator Richard J. Durbin, Democrat of Illinois and the Judiciary Committee chairman, who plans to advance nominees through the end of the year and beyond. “We are going to move everything we can legally move.”

Mr. Biden, a former Judiciary Committee chairman with deep expertise on the confirmation process, has sent the Senate 64 judicial nominations, including 16 appeals court picks and 46 district court nominees. That is the most at this point of any recent presidential term dating to Ronald Reagan. Twenty-eight nominees have been confirmed — nine appeals court judges and 19 district court judges.

By comparison, Mr. Trump had sent the Senate 57 judicial nominees, 13 of whom were confirmed, by mid-November 2017. At the end of four years, Mr. Trump had won confirmation of three Supreme Court justices, 54 appeals court judges and 174 district court judges.

Mr. Biden’s nominees are extraordinarily diverse in both legal background and ethnicity. The White House and liberal interest groups have been promoting public defenders and civil rights lawyers in addition to the more traditional choices of prosecutors and corporate lawyers. According to the White House, 47 of the 64 nominees are women and 41 of them identify as people of color, allowing the administration to record many firsts across the judiciary.

“The diversity is really greater than anyone could have hoped for,” said Russ Feingold, a former senator and the head of the American Constitution Society, a progressive group that has been active in recommending nominees to the White House. “People are ecstatic.”

 

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ny times logoNew York Times, Analysis: What would a reversal of Roe v. Wade mean for the Supreme Court’s credibility? Adam Liptak, right, Dec. 5, 2021 (print ed.). As adam liptakjustices consider Mississippi’s restrictive abortion law, scholars debate what a reversal of Roe v. Wade would mean for the court’s credibility.

Donald J. Trump, who appointed three Supreme Court justices while president, vowed that they would help overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion. In arguments on Wednesday, there were more than a few signs that Mr. Trump had succeeded.

The court’s three Democratic-appointed justices, sounding anguished and angry, said that overruling Roe soon after a bare-knuckled political campaign to change the court’s membership would represent a tipping point, one from which the court’s legitimacy could not recover.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked.

If the Supreme Court is perceived to be made up of politicians rather than judges, Justice Stephen G. Breyer said, “that’s what kills us as an American institution.”

The case illuminates competing and shifting conceptions of the role of the court. For decades, conservatives have argued that Roe amounted to judicial activism, announcing a right not found in the Constitution and overriding the political process to achieve an outcome that politicians would not.

Now, after nearly half a century in which that right has been woven into the societal fabric, the argument may have come full circle, with many liberals saying that a decision by the court to eliminate the right to abortion would amount to flagrant political activism.

Both arguments are grounded in concerns about the court’s legitimacy, which were brought into sharper focus by Wednesday’s proceedings.

“Questions about the court’s legitimacy are more pitched than they ever have been,” said Melissa Murray, a law professor at New York University.

Should the court overrule Roe, she added, it will represent a turning point signaling that “the court has been weaponized for political purposes.”

But Nicole Garnett, a law professor at Notre Dame, said there was just one sound way to assess the status and stature of the court.

“The only real measure of the court’s legitimacy is whether the justices are following their oath to uphold the Constitution and the rule of law,” she said.

Overturning Roe, she added, would let states decide whether and when to allow abortions. “The court would enhance its credibility and legitimacy as a judicial rather than a political body,” she said, “if it returned the question of abortion regulation to the people.”

As those dueling perspectives reflect, there is no consensus about what legitimacy means. Richard H. Fallon Jr., a law professor at Harvard and the author of “Law and Legitimacy in the Supreme Court,” said there were two primary definitions.

One is moral, expressing a judgment about whether the court deserves to be respected. The second is sociological, based on whether people trust the court to make fair and unbiased judgments. Only that second sense, he said, can be captured in public opinion polls.

Recent polls — taken after the court allowed a Texas law that bans abortions after six weeks to take effect in September, but before Wednesday’s arguments — suggest that Justices Sotomayor and Breyer were right to worry about the court’s standing.

A Quinnipiac University poll last month found that 61 percent of Americans said the Supreme Court was mainly motivated by politics, while 32 percent said it was mainly motivated by the law. Three years ago, the corresponding numbers were 50 and 42 percent.

 

amy coney barrett 9 12 2021

U.S. Supreme Court Associate Justice Amy Coney Barrett speaks to an audience at the 30th anniversary of the University of Louisville McConnell Center on Sept. 12. (Timothy D. Easley/AP)

washington post logoWashington Post, Perspective: Barrett is wrong: Adoption doesn’t ‘take care of’ the burden of motherhood, Gretchen Sisson, Dec. 5, 2021 (print ed.). This view of adoption and abortion has failed American women.

During Wednesday’s oral arguments in Dobbs v. Jackson Women’s Health Organization, the Supreme Court heard a direct challenge to Roe v. Wade. Through her questioning, Justice Amy Coney Barrett pursued a line of inquiry premised on the ability of women to relinquish their infants for adoption soon after childbirth. “It doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden,” said Barrett. Didn’t the existence of adoption options, including “safe-haven laws,” relieve women of the “obligations of motherhood that flow from pregnancy” and thus “take care of that problem”?

The argument is that adoption allows women to quickly move on with their lives after giving birth; they do not need access to abortion to maintain control of their futures. This might be a novel assertion to hear from a Supreme Court justice, but it is not a new narrative for our country. We only have to look back before Roe, compare that to data from today and listen to women’s stories of relinquishment — as I have in my research, conducting more than 100 interviews with mothers who relinquished infants since 1962 — to see how this view of adoption has failed American women.

Gretchen Sisson is a research sociologist at Advancing New Standards in Reproductive Health in the Department of Obstetrics, Gynecology and Reproductive Science at the University of California, San Francisco, where she studies abortion and adoption in the United States.

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

washington post logoWashington Post, Perspective: Sotomayor saw she couldn’t sway her colleagues. So she talked to us instead, Melissa Murray (Melissa Murray is the Frederick I. and Grace Stokes professor of law at New York University), Dec. 5, 2021 (print ed.). The liberal justice signaled that the next round of the abortion fight might be political, not legal.

Justice Sonia Sotomayor, below left, now the anchor of the Supreme Court’s dwindling left flank, cut to the heart of the matter with her first question in sonia sotomayor in scotus robe1Wednesday’s oral argument over Mississippi’s abortion law, which forbids the procedure after 15 weeks of pregnancy. As she noted, the legislators who drafted and passed the law did so with the explicit hope that the court’s new conservative supermajority — solidified during the Trump administration — would use it as a vehicle for overruling Roe v. Wade. If her new colleagues seize that opportunity, she asked, “will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

The question was nominally directed at Mississippi’s lawyer, who was defending the abortion law and urging the court to dismantle almost 50 years of jurisprudence on reproductive rights. But in truth, Sotomayor was speaking to three of her colleagues — the chief justice and the court’s newest amy coney barrett headshot notre dame photomembers, Justices Brett M. Kavanaugh and Amy Coney Barrett, right — in the hope that institutionalism would prevail over ideology.

As the argument proceeded, however, she seemed to recognize that the votes to preserve current law — whether Roe as a whole or the standard of fetal viability that has long shaped when states can regulate abortion — simply weren’t there. And she began to speak as if to the public rather than to the justices, signaling that while the situation in the courts looks grim for abortion rights advocates, their political fight will, and must, continue.

Sotomayor’s initial appeal to Chief Justice John G. Roberts Jr. was an obvious move. Of all the court’s members, Roberts is well-known as an institutional stalwart — someone who prioritizes the court’s legitimacy and public standing, even when doing so places him at odds with conservative sensibilities. He famously cast the crucial fifth vote to save the Affordable Care Act in 2012, and in 2020, he joined the court’s liberal wing to strike down a Louisiana abortion law on the grounds that his vote was compelled by stare decisis, the principle that the court’s past decisions must be followed in almost all circumstances.

In recent years, Roberts’s institutional proclivities have been coupled with a strategic use of his persuasive powers to cajole some of the court’s more junior members over to his position. Sotomayor no doubt hoped that an appeal to institutionalism might activate Roberts as an ally in enlisting Kavanaugh and Barrett, the two justices who have been most receptive to the chief’s overtures, in a campaign to preserve precedent — and the court’s standing with the public.

It wasn’t necessarily a pipe dream. After all, only a few weeks earlier, Barrett gave a speech at the University of Louisville’s McConnell Center rebutting the notion that she and her colleagues were “partisan hacks.” That is precisely the impression that Roberts, too, wants to deflect.

But within the first 30 minutes of oral arguments, it was clear that Sotomayor’s institutionally minded optimism had curdled. The chief justice showed no interest in preserving Roe and Casey’s status quo, and pursued instead the prospect of brokering some compromise that would uphold the Mississippi law while stopping just short of overruling the earlier decisions.

Kavanaugh and Barrett plainly seemed uninterested in compromising. In a series of questions, Kavanaugh gestured toward a post-Roe world in which the court was no longer the arbiter of abortion rights, leaving the issue to the states. And in a truly surprising move, Barrett brought “safe-haven laws” into the discussion. These permit parents to terminate their parental rights by surrendering newborns for adoption at designated sites. Barrett’s line of questioning suggested that, because such laws relieved women of the burdens of “forced parenting, forced motherhood,” restrictions on abortion posed few constitutional burdens.

As a young lawyer, I had the privilege of clerking for Sotomayor when she was a judge on the U.S. Court of Appeals for the Second Circuit. Then, as now, her approach to judging was underlaid with a shrewd pragmatism. Which is why I was not surprised when she appeared to change course as she sensed no openings from those three colleagues.

All the conservatives seemed to be embracing a cataclysmic reordering of the reproductive rights landscape. If the chief justice prevailed, the viability line would be eliminated as a salient marker in the court’s jurisprudence. If the court’s even more conservative bloc prevailed, Roe and Casey would fall. Either way, the consequences for American women would be devastating.

Sotomayor therefore started to direct her questions beyond the marble walls at 1 First Street NE, to the American people themselves. In stark and bracing terms, she articulated the stakes for women, centering their voices and experiences in the debate.

When Mississippi’s lawyer, Scott Stewart, suggested that the abortion question should be decided through state-level political deliberation, Sotomayor was quick to interject. “When,” she demanded, “does the life of a woman and putting her at risk enter the calculus?” When Stewart suggested that the viability standard should be abandoned because it was not specifically enumerated in the Constitution, Sotomayor reminded him that “there’s so much that’s not in the Constitution.” Indeed, as she recounted, the text says nothing about judicial review — the court’s duty to interpret the Constitution and “say what the law is.” That constitutional innovation, like Roe and Casey, was a result of judicial interpretation of the broader principles undergirding the document. And if Roe is struck down, she noted, other decisions that relied on similar logic — including those establishing a right to use contraception and a right to same-sex marriage — could fall, too.

Her nod to Marbury v. Madison, the 1803 case that enshrined the principle of judicial review, was a reminder of the concept of jurisprudence — the work judges and courts do to interpret the law and protect rights. But Sotomayor was suggesting that the court need not have the last word on abortion.

Not with a Jan. 6-style insurrection but with the sort of grass-roots energy that once fueled the civil rights movement and other progressive social causes. This could take many forms, such as enacting the congressional bill that would codify Roe’s protections, turning state legislatures blue so as to stanch the stream of increasingly restrictive abortion laws and building broader support for telemedicine and the distribution of pills that can induce abortion in a private setting.

washington post logoWashington Post, Perspective: How backroom politics helped Roe survive a 1992 challenge, Bob Woodward (right, author and Washington Post bob woodward headshotassociate editor), Dec. 5, 2021 (print ed.). David Souter, the swing vote then, nearly abandoned his nomination.

The Supreme Court this past week heard oral arguments over a Mississippi abortion law in a case that poses the starkest challenge to Roe v. Wade since 1992’s Planned Parenthood v. Casey. That case saw a 5-to-4 vote to reaffirm the constitutional right to abortion, though it did allow states to establish some restrictions.

william brennanBut Casey might not have turned out that way. In 1990, when the liberal Justice William Brennan, left, retired, court-watchers anticipated another move against Roe.

President George H.W. Bush’s White House considered several candidates for the open seat: Clarence Thomas, whom Bush would nominate to the high court in 1991, was seen as too inexperienced as an appeals judge. Kenneth Starr, then the solicitor general and later the independent counsel investigating President Bill Clinton, didn’t seem conservative enough. Instead, Bush opted for David H. Souter, right, a 50-year-old federal appeals court judge in New Hampshire, who the administration believed david souter headshotwould back abortion restrictions at the court. Moderate Sen. Warren Rudman (R-N.H.), Souter’s best friend, was his champion in Washington.

This account of Souter’s confirmation — and how he came to be the swing vote that saved Roe in 1992 — was originally published in my 1999 book, Shadow. It’s based on recorded interviews with Rudman, now deceased, and with Bush White House officials.

Bush nominated Souter. The press began to investigate. In an Aug. 6, 1990, cover story on Souter, Time magazine reported on “speculation that Souter is homosexual.” The Washington Post in a Style section profile noted that there was “a flurry of speculation that the Supreme Court might be getting its first gay justice.” There were never any specifics or details, simply that the bookish, gentle Souter and his lifelong bachelorhood seemed to fit the stereotype.

supreme court amazon imagesRudman was outraged. He had known Souter for 20 years. The printed rumors were irresponsible and reflected a grotesque intolerance — not just for homosexuality but toward anyone who might choose to live alone and differently. Rudman was convinced that Souter loved the law and his privacy above all else. It would be monstrous if this issue somehow became part of the Senate or public debates. Rudman had already dropped everything to focus on his friend’s nomination. He made it his single cause, escorting him for personal sessions with most of the 100 senators, counseling him and pouring his considerable energy into getting his friend confirmed. Before the formal confirmation hearings were to begin in September, Souter and Rudman got word that a New York gay newspaper was planning an “outing” of Souter’s alleged secret gay life.

That night, Souter and Rudman went to the senator’s apartment at the Harbour Square in Washington, overlooking the Potomac River. Souter had a salad, Rudman a sandwich. Souter was unusually quiet. About 10 p.m., his frustration spilled out.

“If I had known how vicious this process is,” Souter told his friend, “I wouldn’t have let you propose my nomination.” He wished he had not accepted the nomination. It had been a mistake. The anguish of scrutiny was too great a price to pay. Souter said he was going to phone Bush and insist that his nomination be withdrawn.

warren rudmanRudman, right, was beside himself. He argued forcefully that Souter had to be tough. He should not throw away the nomination on these side issues, even though they might strike at his soul.

At that moment, the future of Roe v. Wade hung in the balance. The newest member of the Supreme Court was likely to be the deciding vote. The court had four members hostile to Roe, and Bush was nominally in favor of overturning it. Although Rudman maintained that he had not talked directly with Souter about Roe, he was certain that Souter would not vote to overturn the decision if he made it to the high court. Rudman, who was pro-choice, felt strongly that abortion was in part a matter of compassion, and he believed that Souter was compassionate and would see the brutality in taking away a women’s right to choose abortion. Rudman also knew that Souter believed in the principle of not overturning Supreme Court precedents unless there was an overwhelming argument. For practical purposes, Rudman was planting a pro-choice mole on the high court. Much more than Souter’s future was at stake.

But Souter was determined to withdraw.

“It’s your destiny to serve on the Supreme Court,” Rudman argued. “This is your destiny. The court needs you.”

No, Souter said, he was taking himself out. He was going to call Bush that moment, and he moved toward the telephone in the small third-floor apartment.

Rudman, a large man who had served in combat during the Korean War, grabbed Souter’s small, wiry frame and restrained him physically.

Souter resisted, trying to make his way to the telephone. Rudman felt he had no choice. He physically held onto his friend or blocked his access to the phone for what seemed like nearly an hour. Wait, ride it out, think, Rudman argued vehemently. His phone was not going to be used to withdraw. Souter, for all his mildness, was tough and he fought back. He eventually had a Scotch, and Rudman, still keeping him from the phone, drank a bourbon. It took hours before the storm finally passed. By 3 a.m., Souter had agreed to stay and fight.

When Bush heard indirectly that Souter had almost withdrawn, he shuddered. What in the world was happening to America? The gay newspaper never published an article, and nothing concrete ever surfaced about his alleged sexual preference, but what if it had?

At his Senate confirmation hearings, Souter declined to take a position on Roe, but he explained his understanding of the duties of a judge and a justice of the Supreme Court in what he called the “stewardship of the Constitution.” He added: “At the end of our task some human being is going to be affected. Some human life is going to be changed in some way by what we do. . . . We had better use every power of our minds and our hearts and our beings to get those rulings right.”

The Senate confirmed Souter by a vote of 90 to 9.

Two years later, Souter and two other justices wrote a highly unusual three-justice signed opinion, joined by two others, upholding Roe v. Wade. Rudman was coming back from New York by train the day the decision in Casey was announced. He was overjoyed, certain that Souter had played a pivotal role. The efforts of the Reagan and Bush administrations and the religious right to overturn Roe were probably defeated forever, Rudman joe biden wcalculated.

In the train station, he ran into Sen. Joe Biden (D-Del.), left, who had chaired the Senate Judiciary Committee during the Souter confirmation hearings. Biden was equally delighted that Roe had been affirmed. The two senators embraced, laughed, yelled and even cried.

“You were right about him,” Biden said. “Did you read that opinion? You were right!”

Twenty-nine years later, Biden still supports Roe. But now he’s president, and it may be on his watch that Roe is substantially altered — or overturned.

Bob Woodward is an associate editor of The Washington Post, where he has worked since 1971. He has shared in two Pulitzer Prizes, first in 1973 for the coverage of the Watergate scandal with Carl Bernstein, and second in 2003 as the lead reporter for coverage of the 9/11 terrorist attacks.

washington post logoWashington Post, Perspective: The court controls its own fate, Ray Brescia, Dec. 5, 2021 (print ed.). Ray Brescia is a professor at Albany Law School and the author of "The Future of Change: How Technology Shapes Social Revolutions."

The U.S. Supreme Court is working through one of its most consequential dockets of cases in recent memory, tackling everything from abortion to gun rights. It does so amid public discontent: Recent polling suggests that public opinion of the court is at its lowest point since 2004, when the poll was first conducted.

This roiling discontent and the sense that the court is operating in a nakedly partisan way prompted President Biden to impanel a bipartisan commission to assess whether structural reforms are necessary to regain the public’s confidence that the court serves the people and not narrow and unpopular political goals. That commission is slated to issue its final report in early December.

Ironically, perhaps, the cases on the docket — more so than the commission report — will shape the future of the court. Despite the occasional protest by the justices to the contrary, the court has traditionally paid enough attention to public sentiment to safeguard its legitimacy — without which it has very little power. As the justices confront backlash and charges of partisanship, a Justice Roberts from another era offers a guide for how the court can rebuild public confidence that it serves as a defender of democracy, the rule of law and fundamental rights.

Dec. 3 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

ny times logoNew York Times, Opinion: The Supreme Court Gaslights Its Way to the End of Roe, Linda Greenhouse (shown at right on the cover of her memoir, "Just linda greenhouse cover just a journalista Journalist"), Dec. 3, 2021. There are many reasons for dismay over the Supreme Court argument in the Mississippi abortion case, but it was the nonstop gaslighting that really got to me.

First there was Justice Clarence Thomas, pretending by his questions actually to be interested in how the Constitution might be interpreted to provide for the right to abortion, a right he has denounced and schemed to overturn since professing to the Senate Judiciary Committee 30 years ago that he never even thought about the matter.

Then there was Chief Justice John Roberts, mischaracterizing an internal memo that Justice Harry Blackmun wrote to his colleagues as the Roe v. Wade majority was discussing how best to structure the opinion Justice Blackmun was working on. The chief justice was trying to delegitimize the place of fetal viability in the court’s abortion jurisprudence, where for nearly 50 years, viability has been the unbreached firewall protecting the right of a woman to choose to terminate a pregnancy.

And then there was Justice Brett Kavanaugh, who rattled off a list of “the most consequential cases in this court’s history” that resulted from overruling prior decisions.

It was Justice Sonia Sotomayor who asked the uncomfortable question. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she demanded of Scott Stewart, a former law clerk to Justice Thomas who argued for Mississippi as the state’s solicitor general. Listening to the live-streamed argument, I first heard “political acts” as “political hacks,” I suppose because still in my mind were Justice Barrett’s words when she spoke in mid-September at a center in Louisville, Ky., named for her Senate confirmation mastermind, Senator Mitch McConnell. “My goal today is to convince you that the court is not comprised of a bunch of partisan hacks,” she said then.

Last month, the court heard arguments in a case that challenges New York’s strict requirement for a license to carry a concealed weapon. Most states have looser restrictions. New York, through its legislative process, is in a minority.

Will Justice Kavanaugh and those of his colleagues who glorify a recently manufactured version of the Second Amendment allow New York City to keep going its own way on gun safety in the name of “letting the people decide”? That’s about as likely as the chance that those very same justices will decide to keep the right to abortion on the books. In both cases, we know what they’re going to do. The only mystery is how they will explain it.

Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The Times from 1978 to 2008, and is the author of the forthcoming "Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court."

washington post logoWashington Post, Sidney Powell, L. Lin Wood among attorneys ordered to pay $180,000 over Michigan ‘Kraken’ suit, Rosalind S. Helderman, Dec. 3, 2021 (print ed.). It's the latest in a series of rulings seeking to hold lawyers accountable for trying to use the courts to overturn a democratic election.

A federal judge in Michigan has ordered a group of lawyers who brought a failed lawsuit challenging the 2020 election results to pay more than $180,000 in legal fees to the state of Michigan and the city of Detroit, the latest in a series of rulings from federal judges seeking to hold lawyers accountable for trying to use the courts to overturn a democratic election.

linda parkerU.S. District Judge Linda V. Parker, shown in a file photo, had already ordered that the group of nine lawyers — including Sidney Powell and L. Lin Wood, both allies to former president Donald Trump — be disciplined for their role in the suit, which in August she called “a historic and profound abuse of the judicial process.”

But the group had been balking at the fees requested by their opponents in the suit, particularly the city of Detroit, which had reported that it spent $182,192 defending the case.

On Thursday, Parker said those fees were for the most part reasonable. She ordered the lawyers to pay nearly $153,000 to the city and another $22,000 to the state to pay their costs in the case.

She said the hefty fee was an “appropriate sanction … needed to deter Plaintiffs’ counsel and others from engaging in similar misconduct in the future.” She also wrote that she believed that the attorneys have the ability to pay the fees, particularly given that they have been soliciting donations from lin wood gage skidmoremembers of the public to fund lawsuits like the one they brought in Michigan.

Neither Powell or Wood (shown at left in a Gage Skidmore photo) immediately responded to a request for comment Thursday. Federal prosecutors have also sought records from Powell’s fundraising groups as part of a criminal probe.

Prosecutors demanded records of Sidney Powell’s fundraising groups as part of criminal probe

David Fink, a lawyer for the city of Detroit, said: “These lawyers abused the federal courts to advance the big lie. They must pay a price for their misconduct, and this ruling is a good start.”

Dec. 2

Abortion Case Reactions

 supreme court Custom

washington post logoWashington Post, Opinion: The question is not whether ‘Roe v. Wade’ is overturned — but how, Ruth Marcus, right, Dec. 2, 2021 (print ed.). “For today, at ruth marcusleast, the law of abortion stands undisturbed,” Justice Harry A. Blackmun wrote in 1989, dissenting in a case that cut back on constitutional protection for abortion rights. “For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.”

On Wednesday, that icy wind whistled through a nearly empty Supreme Court chamber as justices considered whether — or, to be more precise, how — to abandon the Roe v. Wade precedent that Blackmun helped write into law almost 50 years ago.

The oral argument made it all too clear: Constitutional protection for a woman’s right to choose whether to end an unwanted pregnancy is about to be dramatically curtailed if not eliminated altogether.

The advocates trying to forestall that eventuality, Julie Rikelman of the Center for Reproductive Rights and U.S. Solicitor General Elizabeth B. Prelogar, did an excellent job, and yet the argument in Dobbs v. Jackson Women’s Health could hardly have gone worse.

Ruth Marcus: A newly radicalized Supreme Court is poised to reshape the nation

Three justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — are all but guaranteed votes to overrule both Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 case in which a court that had seemed poised to take the plunge of overruling instead stepped back and reaffirmed Roe.

That leaves two questions: Are two or perhaps three other justices prepared to join them? If not, how much damage will be done by a decision that upholds the Mississippi law, which prohibits most abortions after 15 weeks, but doesn’t explicitly overrule Roe.

The answers appear to be “perhaps” and “significant.”

The three justices who occupy what passes for the middle on this court each offered separate grounds for worry.

washington post logoWashington Post, Potential loss of Roe v. Wade as a legal standard shakes political landscape, Sean Sullivan and Seung Min Kim, Dec. 2, 2021 (print ed.). Democrats immediately vowed to make abortion rights a central focus in next year’s midterm elections, where their prospects have been viewed as dim, while many Republicans sought to keep the focus on inflation and other problems facing President Biden.

ny times logoNew York Times, Opinion: What We Learned From the Supreme Court’s Abortion Arguments, Charles M. Blow, Ross Douthat, Michelle Goldberg and Lulu Garcia-Navarro, Dec. 2, 2021 (print ed.). The oral arguments before the Supreme Court in Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy, may give an indication of the future for access to the procedure, and for national politics.

The Times columnists and a Times Opinion podcast host gathered to discuss what they heard at the court on Wednesday, where they see it heading and how they, and the country, will continue to wrestle with the issue of abortion.

michelle goldberg thumbMichelle Goldberg, right: I don’t think there’s any doubt that this court is going to uphold the Mississippi law. To me the only question is whether it overturns Roe v. Wade altogether, or comes up with some new standard to replace viability, an outcome Chief Justice John Roberts seemed to be groping toward. My guess is it overturns. What do you all think?

Lulu Garcia-Navarro: I agree, all the justices showed their cards and their thinking on this issue. What fascinated me was how plainly the liberal justices — mainly Stephen Breyer and Sonia Sotomayor — spoke about the politics of this issue. Justice Sotomayor’s comment about whether the court can “survive the stench” of overturning Roe was almost a direct appeal to Chief Justice Roberts, who has been vocally worried ross douthatabout how the court is viewed since the conservative majority has taken over.

Ross Douthat, right: Yes, it’s a peculiar situation where everybody assumes (rightly, in my view) that none of the conservative justices think that either Roe or Casey was rightly decided, so the question then becomes to what extent do they act like politicians — something Roberts especially is always ready to do! — as opposed to just following their legal convictions.

dan rather bookSteady, Opinon: The End of Roe? Dan Rather (author and former CBS Evening News Managing Editor and Anchor, shown above in a file photo), Dec. 1, 2021, published Dec. 2. Today was not the ultimate judgment day; that will come with a formal decision. And we have to be prepared for a surprise. But if events transpire as most legal experts suspect they will, what happened in Washington on December 1, 2021, will be marked in American history.

The issue of abortion is one on which fair minded people, honest to their own beliefs and moral codes, can disagree. But today was not about personal choice. It was about the law of the land that will make no exceptions other than those carved out by the states. And if the history of a time before legal abortions is any guide, and there is no reason to suspect otherwise, today will beget many personal tragedies, ruined lives, hardship, and despair.

What transpired in the marbled halls of the Supreme Court was not genteel, even if it was wrapped in the ceremony and vocabulary of polite legal discourse. It was a traumatic reckoning. First and foremost for the rights of women to have control of their bodies and their lives. And secondly for a nation of laws, where precedent is supposed to matter. Instead, we saw a fixed legal right, enshrined in jurisprudence for half a century, likely shredded by a handful of unelected and unaccountable arbiters of what our nation of more than 300 million souls can and cannot do.

Was it a surprise? Not really to anyone who has followed the Court. But somehow the shock of what this will mean was not tempered by its inevitability.

For decades Republicans have railed against abortion to fan the ire and passions of their most reliable voters. They have played footsie with gutting Roe, with more lip service than action. It took the shameless cynicism of Mitch McConnell and the gleeful transactionality of President Trump to secure a majority on the Court that would boldly go so far.

There are many subplots to this drama. We can talk about how a majority of the justices on the reactionary side of the ledger were appointed by presidents who lost the popular vote, and what that means for the health of our democracy.

We can talk about how many of the justices were less than truthful, or outright lied, in their confirmation heariings when they acted like they would judge an abortion case on precedent and the law instead of having their minds made up. We can talk about the politics of the court and whether Democratic voters slept-walked on the issue for too long. But if this were a Hollywood movie, all that would be in the preamble. A new story begins now.

Many women of all ages in America have come to take safe, legal abortions as a given. Although we must note that many women also are vocal opponents of legal abortions. What happens now? What happens when the inevitable stories emerge of victims of rape and incest being forced to carry a pregnancy to term? How many will die from illegal abortion attempts? As someone who is old enough to clearly remember the world before Roe, I don't think America, or the justices on the Court, or the political establishment, knows what is going to come.

We will see abortion effectively outlawed in many states, and not only deep red ones. Gerrymandered state governments in purple states will jump in as well. Will this provoke a response, in the streets or at the ballot box? Will there be pressure on businesses who want ot recruit workers in states where abortion is illegal? Or will America adjust to this new reality in ways that do not change the political stakes?

Ultimately, while it is important to consider the politics, my mind tonight is with those who will likely suffer, now and into the future. We now likely have a situation where the government will come between women, their doctors, and their body. Those who consider terminating pregnancies often face the most difficult decisions of their lives. They are often on the most vulnerable fringes of society, contending with violence, trauma, and economic insecurity.

Others face grave medical problems. Others know they would be unable to provide a good life for their baby. Others know what a baby will mean for their own lives. Ultimately the reasons shouldn’t matter. There is no moral relativism. I believe, no matter one’s personal beliefs about abortion, this is a right that women should have.

If Roe is gutted and not replaced by new laws, a wave of desperation will engulf the nation. Countless women will feel the loneliness of fear, the disorientation of anxiety, and the despair that comes with pain and loss. They will cry tears and shake with anger. They will weigh the risks of traveling to states where abortion is legal, of finding other ways to end their pregnancies. They will be forced to carry life to term, knowing that the same political forces who insisted they do so will do little to help care for that life once it is born.

Tonight I understand the anger. I understand the fear. My primary emotion is one of sadness. We are stumbling towards a future that is unmoored from our past.

washington post logoWashington Post, Editorial: Gutting ‘Roe’ would devastate millions of Americans — and the court itself, Editorial Board, Dec. 2, 2021 (print ed.). The Supreme Court heard arguments Wednesday in an abortion case that could mark a perilous turning point for American society.

Judging by the justices’ tone, the question is not whether they will eviscerate the 1973 Roe v. Wade decision and the subsequent Planned Parenthood v. Casey ruling in 1992 but how drastically they will curtail these core precedents.

The justices should have no illusions: A partial or total reversal of Roe would devastate not only the Americans who rely on the abortion rights that have been theirs for nearly 50 years, but also the court itself, undermining its legitimacy.

washington post logoWashington Post, Editorial: Gutting ‘Roe’ would devastate millions of Americans — and the court itself, Editorial Board, Dec. 2, 2021 (print ed.). The Supreme Court heard arguments Wednesday in an abortion case that could mark a perilous turning point for American society.

Judging by the justices’ tone, the question is not whether they will eviscerate the 1973 Roe v. Wade decision and the subsequent Planned Parenthood v. Casey ruling in 1992 but how drastically they will curtail these core precedents.

The justices should have no illusions: A partial or total reversal of Roe would devastate not only the Americans who rely on the abortion rights that have been theirs for nearly 50 years, but also the court itself, undermining its legitimacy.

Dec. 1

ny times logoNew York Times, Analysis: Supreme Court Seems Poised to Uphold Mississippi’s Abortion Law, Adam Liptak, right, Dec. 1, 2021. After two hours of adam liptaksometimes tense exchanges in one of the most significant abortion cases in years, the court appeared poised to uphold the state law, which bans abortions after 15 weeks of pregnancy.

supreme court amazon imagesThe Supreme Court seemed poised on Wednesday to uphold a Mississippi law that bans abortions after 15 weeks of pregnancy, based on sometimes tense and heated questioning at a momentous argument in the most important abortion case in decades.

Such a ruling would be flatly at odds with what the court has said was the central holding of Roe v. Wade, the 1973 decision that established a constitutional right to abortion and prohibited states from banning the procedure before fetal viability, or around 23 weeks.

But the court’s six-member conservative majority seemed divided about whether to stop at 15 weeks, for now at least, or whether to overrule Roe entirely, allowing states to ban abortions at any time or entirely.

Chief Justice John G. Roberts Jr. was the leading voice on the right for a narrow decision. “The thing that is at issue before us today is 15 weeks,” he said.

He repeatedly questioned whether the viability line was crucial, saying that Justice Harry A. Blackmun, the author of the majority opinion in Roe, had called the line arbitrary in his private papers. Chief Justice Roberts added that much of the rest of the world has similar limits.

Julie Rikelman, a lawyer for the abortion clinic challenging the Mississippi law, disputed that, saying that limits in many other countries are subject to significant exceptions.

Other conservative justices indicated that they were not interested in the chief justice’s intermediate approach. Justice Samuel A. Alito Jr. said “the only real options we have” are to reaffirm Roe or to overrule it.

Assuming the three most conservative members of the court — Justices Alito, Clarence Thomas and Neil M. Gorsuch — are prepared to overrule Roe entirely, Chief Justice Roberts would need to attract at least two votes for a narrower opinion, one upholding the Mississippi law but not overruling Roe in so many words, to be controlling. But the most likely candidates, Justices Brett M. Kavanaugh and Amy Coney Barrett, said little to suggest that they were inclined toward that narrower approach.

The court’s three liberal members — Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor — were adamant that Roe should stand.

  • New York Times, Mississippi says progress in the workplace makes abortion rights unnecessary. This is what the research says.

 

supreme court headshots 2019

washington post logoWashington Post, Live Reports: Justices to hear arguments over Miss. abortion law challenging 'Roe v. Wade,' Ann E. Marimow and Amy B Wang, Dec. 1, 2021. The Supreme Court on Wednesday is taking up the most serious challenge in decades to the constitutional right to abortion established in Roe v. Wade in 1973. The Mississippi law at issue bans most abortions after 15 weeks into pregnancy and has not taken effect because lower courts said it violated Roe and the subsequent decision in Planned Parenthood v. Casey, which said states may not ban abortion before viability, usually between 22 and 24 weeks.

Mississippi has only one abortion clinic in the state, and one of its doctors sued, saying the ban imposes an undue burden on the right to abortion. Mississippi told the court that allowing the 2018 law to stand would “scuttle a half-century of precedent.” The state says the Constitution does not protect a right to abortion and that the court’s precedents are “grievously wrong, unworkable, damaging and outmoded.”

Here’s what to know:

  • In accepting the case Dobbs v. Jackson Women’s Health Organization, the court said it will decide whether all prohibitions on abortion before viability are unconstitutional. Abortion opponents believe this is their best chance in decades.
  • The justices could overturn Roe or find another way to uphold the Mississippi law. The state suggested the court could hold that the law does not impose an “undue burden” on a significant number of women because the Mississippi clinic performs abortions only up to 16 weeks.
  • Past court rulings, public appearances and other public comments by the nine justices give insight into their thinking on abortion and court precedents.
  • Mississippi is represented by recently hired Solicitor General Scott G. Stewart, a former law clerk to Justice Clarence Thomas. The abortion provider is represented by attorney Julie Rikelman, litigation director for the Center for Reproductive Rights. U.S. Solicitor General Elizabeth B. Prelogar will also argue on behalf of the abortion provider.

 Recent Headlines

 

November

Nov. 28

 supreme court resized 2021

ny times logoNew York Times, Editorial: To Protect Abortion Rights, Turn to Elections, Editorial Board, Nov. 28, 2021 (print ed.). Will the Supreme Court overturn Roe v. Wade? As the justices prepare to hear oral arguments on Dec. 1 in the biggest abortion case in decades, that is the understandable question on everyone’s mind. It’s also a misleading one.

Yes, Roe could possibly meet its demise when the court decides Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy. After all, outlawing abortion in America has been an animating object of the conservative movement for nearly half a century. But the Supreme Court never had a reliably anti-choice majority to pull it off. Now, largely thanks to the engineering of Senator Mitch McConnell, the court is stacked with a supermajority of conservative justices, several of whom surely must be tempted to finish the job they were put on the court to do.

The fact that the Dobbs case made it to the court in the first place is reason enough for alarm: Many states have passed abortion bans similar to Mississippi’s that have been struck down because they are obviously unconstitutional in light of Roe v. Wade and subsequent cases. That the Mississippi law hasn’t met the same fate strongly suggests a confidence among conservative justices that they finally have the votes to end Roe for good. A similar confidence — not to mention a blithe indifference to women’s civil liberties — was reflected in the Supreme Court’s recent refusal to summarily strike down a new Texas law that effectively bans most abortions in the state.

As the justices are well aware, however, categorically eliminating a constitutional right that tens of millions of women have counted on, and which, according to a 2019 poll, more than three-quarters of Americans support upholding in some form, would invite an enormous social and political backlash that could end up doing damage to the very causes they hold dear.

The more likely outcome — for this term, at least — is not an outright reversal of Roe but a rerun of a show Americans have been watching for the past 30 years: a ruling that preserves the right to abortion in name while making the exercise of that right ever more difficult, if not impossible, in practice.

That’s why the most pressing issue in the Dobbs case is not the legal response of the court but the political response of a consistent majority of Americans who agree that a woman has the right to control what happens inside her own body.

So what happens next? The first step is acceptance — specifically, accepting that such a conservative Supreme Court is no longer going to protect reproductive freedom but will instead undermine it. The next step is to shift the focus away from the courts and onto electoral politics — by translating the American public’s consistent majority support for abortion rights into electoral victories at all levels of government, but especially in the states, where nearly all laws around reproductive rights get made.

This moment is also an opportunity to recast the fight over abortion and reproductive rights generally. It should be centered on women’s equality and liberty, not on their privacy, the right on which the Roe decision was grounded. The problem with that rationale, which was conjured by a court consisting of nine older men, is not only that it does not appear explicitly in the Constitution, but also that it carries insinuations of secrecy and even shame. That’s a rickety foundation for such a fundamental right. It is far harder to refute calls for equality and liberty, as evidenced by the struggles and successes of the L.G.B.T.Q. movement.

washington post logoWashington Post, For Clarence Thomas, avowed critic of Roe v. Wade, Mississippi abortion case is a moment long awaited, Robert Barnes, Nov. 28, 2021 (print ed.). Judge Clarence Thomas said at his Supreme Court confirmation hearings in 1991 that he hadn’t given that much thought to whether Roe v. Wade was correctly decided.

But Justice Clarence Thomas, below left, took only months to reach a conclusion: the landmark 1973 ruling guaranteeing a woman’s right to abortion should be discarded.

clarence thomas official w“The power of a woman to abort her unborn child” is not a liberty protected by the Constitution, said a dissenting opinion from four members of the court, including Thomas.

The Supreme Court was invited to overturn Roe. A surprising majority didn’t

Thus began three decades of official Thomas opposition to the notion of a constitutionally protected right to abortion.

It will reach its zenith Wednesday, when Thomas and the most conservative Supreme Court in decades will consider a restrictive Mississippi abortion law that opponents and advocates alike agree is almost impossible to square with Roe and the precedents that have flowed from it.

The review coincides as well with something of a high-water mark for the 73-year-old Thomas, now the court’s longest-serving member. He sits on a court with more justices who think like him than at any other point in his career.

What the Supreme Court justices have said about abortion and Roe v. Wade

These days, his colleagues offer unprecedented deference. After years of not asking questions at oral arguments, Thomas this term has asked the first question in every hearing. That is because no one jumps in until he has finished his low-key inquiries.

supreme court headshots 2019

washington post logoWashington Post, Opinion: The Rule of Six: A newly radicalized Supreme Court is poised to reshape the nation, Ruth Marcus, right, Nov. 28, 2021. Supreme ruth marcusCourt Justice William J. Brennan Jr., the Eisenhower appointee who became the liberal lion of the Warren Court, had a tradition for introducing every new batch of law clerks to the realities of the institution.

“Brennan liked to greet his new clerks each fall by asking them what they thought was the most important thing they needed to know as they began their work in his chambers,” Seth Stern and Stephen Wermiel write in Liberal Champion, their Brennan biography. “The … stumped novices would watch quizzically as Brennan held up five fingers. Brennan then explained that with five votes, you could accomplish anything.”

Brennan, master vote-counter and vote-cajoler, was right — but there is an important corollary to his famous Rule of Five, one powerfully at work in the current Supreme Court. That is the Rule of Six. A five-justice majority is inherently fragile. It necessitates compromise and discourages overreach. Five justices tend to proceed with baby steps.

A six-justice majority is a different animal. A six-justice majority, such as the one now firmly in control, is the judicial equivalent of the monarchy’s “heir and a spare.” The pathways to victory are enlarged. The overall impact is far greater than the single-digit difference suggests.

On the current court, each conservative justice enjoys the prospect of being able to corral four colleagues, if not all five, in support of his or her beliefs, point of view or pet projects, whether that is outlawing affirmative action, ending constitutional protection for abortion, exalting religious liberty over all other rights or restraining the power of government agencies.

A six-justice majority is emboldened rather than hesitant; so, too, are the conservative advocates who appear before it. Such a court doesn’t need to trim its sails, hedge its language, or abide by legal niceties if it seems more convenient to dispense with them.

A conservative justice wary of providing a fifth vote for a controversial position can take comfort in the thought that now there are six; there is strength in that number. Meantime, a court with a six-justice majority is one in which the justices on the other side of the ideological spectrum are effectively consigned to a perpetual minority. They craft dissents that may serve as rebukes for the ages but do little to achieve change in the present. The most they can manage is damage control, and that only rarely.

Nov. 17

 

norman 3X butler thomas 15X johnson ap

The exoneration of the two men, Muhammad Aziz, left, formerly known as Norman 3X Butler) and the late Khalil Islam (formerly known as Thomas 15X Johnson), represents 'a remarkable acknowledgment of grave errors made in a case of towering importance,' the New York Times reported. Aziz and the estate of Islam were both reprsented by the Innocence Project and attorney David Shanies. Photos by Associated Press.

ny times logoNew York Times, 2 Men Convicted of Killing Malcolm X Will Be Exonerated After 55 Years, Ashley Southall and Jonah E. Bromwich, Nov. 17, 2021. Two of the men found guilty of the assassination of Malcolm X are expected to have their convictions thrown out on Thursday, the Manhattan district attorney and lawyers for the two men said, rewriting the official history of one of the most notorious murders of the civil rights era.

The exoneration of the two men, Muhammad A. Aziz and Khalil Islam, represents a remarkable acknowledgment of grave errors made in a case of towering importance: the 1965 murder of one of America’s most influential Black leaders in the fight against racism.

malcolm x stamp black heritageA 22-month investigation conducted jointly by the Manhattan district attorney’s office and lawyers for the two men found that prosecutors and two of the nation’s premier law enforcement agencies — the Federal Bureau of Investigation and the New York Police Department — had withheld key evidence that, had it been turned over, would likely have led to the men’s acquittal.

The two men, known at the time of the killing as Norman 3X Butler and Thomas 15X Johnson, spent decades in prison for the murder, which took place on Feb. 21, 1965, when three men opened fire inside a crowded ballroom at the Audubon Ballroom in Manhattan as Malcolm X was starting to speak.

But the case against them was questionable from the outset, and in the decades since, historians and hobbyists have raised doubts about the official story.

The review, which was undertaken as an explosive documentary about the assassination and a new biography renewed interest in the case, did not identify who prosecutors now believe really killed Malcolm X, and those who were previously implicated but never arrested are dead.

Nor did it uncover a police or government conspiracy to murder him. It also left unanswered questions about how and why the police and the federal government failed to prevent the assassination.

But the acknowledgment by Cyrus R. Vance Jr., the Manhattan district attorney who is among the nation’s most prominent local prosecutors, recasts one of the most painful moments in modern American history. New York Times excerpt continued below.

ny times logoNew York Times, Live Updates: Reactions to the Malcolm X Case, Staff Reports, Nov. 17, 2021. A timeline of major events in the case since Malcolm X’s death:

  • This is who scholars believe really killed Malcolm X.
  • What we know about Malcolm X’s assassination.
  • A new witness supports the original alibi of one of the wrongfully convicted men.
  • Al Sharpton calls exonerations in Malcolm X case a ‘strange and perverted irony.’

Future of Freedom Foundation, Opinion: Why Doesn’t the CIA Just Destroy Its Secret JFK Records? Jacob G. Hornberger, right, Nov. 17, 2021. With President jacob hornberger newBiden’s order granting the CIA’s request for continued secrecy of its 60-year-old records retailing to the JFK assassination — on grounds of protecting “national security” — the question naturally arises: Why doesn’t the the CIA simply sneak into the National Archives and just destroy its records and be done with it?

By now, it should be obvious to everyone, including the CIA’s assets in the mainstream press, that the CIA’s remaining secret records contain incriminating evidence pointing toward a national-security state regime-change operation against President Kennedy, just as Oliver Stone posited in his movie JFK in 1991. The notion that the release of 60-year-old records will endanger “national security,” no matter what definition is placed on that meaningless, nebulous term, is patently ludicrous on its face.

future of freedom foundation logo squareMind you, I’m not advocating that the CIA do this, of course. I believe those long-secret records should have been disclosed to the American people six decades ago. I’m just asking a question and wondering why the CIA doesn’t do what it has done in the past to prevent the American people from seeing its dark-side activities.

Yes, it know that doing this would be violating the JFK Records Act of 1992. But we all know that nothing would happen to the CIA if it broke the law and destroyed those records. Nobody would get indicted. No one would even lose his job. No one would even get a slap on the wrist. After all, this is the CIA we are talking about.

When the CIA intentionally destroyed its videotapes of its brutal torture sessions with suspected terrorists, nothing happened to the CIA. When the CIA intentionally destroyed its MKULTRA records of its drug experiments on unsuspecting American citizens, again nothing happened.

Moreover, consider what the Secret Service did after the JFK Records Act was enacted. That sordid story is recounted in Douglas Horne’s watershed secret service logo5-volume book Inside the Assassination Records Review Board.

The JFK Records Act mandated that all federal agencies disclose their assassination-related records to the public. To enforce the law, Congress called into existence The Assassination Records Review Board.

After the law was enacted, a letter was sent to the Secret Service and other federal agencies specifically directing them to not destroy any assassination-related records. The Secret Service received the letter and understood the directive.

Nonetheless, the Secret Service intentionally destroyed critically important secret information relating to the assassination.

CIA LogoNo one got indicted for what was obviously a knowing, intentional, and deliberate violation of the law. No one got cited for contempt. No one got fired. The Secret Service got away with it. The American people never got to see those secret assassination-related records.

The Secret Service’s intentional destruction of those records looked especially bad in the context of the Secret Service’s actions prior to and immediately after the assassination.

  1. First, it didn’t seal the windows or the roof of the Texas School Book Depository or other high-rise buildings overlooking Dealey Plaza, where President Kennedy was assassinated,
  2. Second, it prevented agents from stationing themselves on the side and back of the presidential limousine during the motorcade.
  3. Third, it ensured that the motorcycle cops stayed behind the limousine rather than on its sides.
  4. Fourth, the custom was to have the official press corps car in front of the presidential limousine so that the professional photographers could easily take pictures and film during the motorcade. This time, the Secret Service placed the press corps car several cars behind the limousine, which ensured that there were few professional photographers capturing the assassination in photographs or film.
  5. Fifth, when the first shot rang out, the Secret Service agent who was driving the presidential limousine — William Greer — failed to floor the accelerator and immediately escape from the area before a second shot could hit the president.
  6. Sixth, the Secret Service agent in the passenger seat — Roy Kellerman — sat there like a bump on the log after the first shot rang out, even though his duty was to immediately jump in the back seat and cover the president with his own body. That’s what Secret Service agent Clint Hill was trying to do when he ran from his car toward the president’s car.
  7. Seventh, as I detail in my book The Kennedy Autopsy, Kellerman was actually the person who first launched the scheme for a fraudulent autopsy that was conducted later that day at the military’s medical facility at Bethesda National Naval Medical Facility. When Dr. Earl Rose, the Dallas County Medical Examiner, announced his intention to conduct an autopsy on the president’s body in accordance with Texas state criminal law, Kellerman, who was carrying a submachine gun, declared that no such autopsy would be permitted. Stating that he was operating on orders. Kellerman and his team of Secret Service agents, who were themselves brandishing their own guns, forced their way out of Parkland with the president’s body in a very heavy ornate casket. Kellerman and his team then delivered the body to new President Lyndon Johnson. Later that day, Johnson delivered the president’s body to the military, which then conducted a top-secret, classified fraudulent autopsy on Kennedy’s body.

Kennedy’s body was secretly sneaked into the Bethesda morgue in a cheap shipping casket at 6:35 p.m., which was almost 1 1/2 hours before the official entry time of 8 p.m. As I also detailed in The Kennedy Autopsy, Secret Service agents Kellerman and Greer participated in the secret reintroduction of Kennedy’s body into the expensive, heavy ornate Dallas casket, which was then brought into the morgue at the official entry time of 8 p.m.

What was in those top-secret Secret Service records that the Secret Service intentionally destroyed after being specifically told not to destroy them?

I don’t know, but my hunch is that there was a good reason why the Secret Service felt the need to destroy them.

There is obviously a good reason why the CIA doesn’t want its 60-year-old records disclosed to the American people, and I have no doubts that it has nothing to do with protecting “national security.” Which causes me to wonder why the CIA doesn’t do what the Secret Service did and just be done with the entire controversy.

Nov. 16

washington post logoWashington Post, Americans broadly support Supreme Court upholding Roe v. Wade, poll finds, Scott Clement, William Bishop and Robert Barnes, Nov. 16, 2021. Americans say by a roughly 2-to-1 margin that the court should uphold its landmark decision, and by a similar margin the public opposes a Texas law banning most abortions after six weeks of pregnancy, according to a Post-ABC News poll.

The lopsided support for maintaining abortion rights protections comes as the court considers cases challenging its long-term precedents, including Dec. 1 arguments over a Mississippi law banning abortions after 15 weeks of pregnancy.

The Post-ABC poll finds 27 percent of Americans say the court should overturn Roe, while 60 percent say it should be upheld, attitudes that are consistent in polls dating to 2005. More broadly, three-quarters of Americans say abortion access should be left to women and their doctors, while 20 percent say they should be regulated by law.

Nov. 15

 

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washington post logoWashington Post, Stephen Bannon surrenders after he was indicted on charges of contempt of Congress, Spencer S. Hsu and Tom Jackman, Nov. 15, 2021. Stephen K. Bannon, the former Trump White House adviser who was indicted last week for defying a congressional subpoena, surrendered to federal authorities Monday morning and was scheduled to make his first court appearance later Monday afternoon.

Bannon, 67 (shown above in a file photo), walked through a group of photographers outside the FBI field office in downtown Washington. Bannon told the news media, “I don’t want anybody to take their eye off the ball for what we do every day. . .We’re taking down the Biden regime.”

Bannon is expected to appear before U.S. Magistrate Judge Robin M. Meriweather for his arraignment on two counts of contempt of Congress.

A federal grand jury indicted Bannon on Friday after he ignored a Sept. 23 subpoena to testify and provide documents to the House committee investigating the Jan. 6 attack on the U.S. Capitol.

The committee wants to question Bannon about activities that occurred at the Willard Hotel the night before the riot, when pro-Trump activists sought to convince Republican lawmakers to block certification of the election. The committee’s subpoena also noted that Bannon was quoted predicting “hell is going to break loose” on Jan. 6.

The panel has subpoenaed at least 20 Trump aides, including former White House chief of staff Mark Meadows. Meadows did not appear Friday for a scheduled deposition, officials said. The charges against Bannon are misdemeanors, punishable by up to a year in jail and a fine of up to $1,000.

 

steve bannon billionaire guo wengui

Wayne Madsen Report,  Investigative Commentary: Time to extradite Bannon's patron to China, Wayne Madsen, Nov. 15, 2021. The method to bring down a massive far-right conspiracy to overthrow the government is to, as the Department of Justice did during Iran-contra, and, to a lesser extent, for Watergate is to "follow the money."

wayne madsen may 29 2015 cropped SmallToday, as former Trump White House chief strategist Steve Bannon is arraigned in federal court in Washington for two criminal counts of contempt of Congress for refusing to appear before the January 6th special House committee and turn over requested documents, it is an important reminder that Bannon's financial patron is Guo Wengui, a fugitive billionaire Chinese national who resides in the United States. Bannon and Guo are shown above in a file photo.

wayne madesen report logoGuo (shown above in a file photo with Bannon) was granted political asylum by the Trump administration in 2017 as a Priority 1 asylee after Trump was informed that Guo had laid out the required $200,000 in initiation fees and $14,000 in annual dues to become a member of Trump's Mar-a-Lago billionaires' beach club in Palm Beach, Florida. Guo is currently the subject of an Interpol Red Notice arrest warrant issued in April 2017 by China.

Guo is accused of fraud, rape, bribery, money laundering, kidnapping, and other crimes committed in China and abroad before he was granted political asylum in the United States.

Guo has the distinction of being involved in simultaneous attempts to overthrow two governments, that of his asylum-grantor, the United States, and that of China. Guo maintains a Chinese government-in-exile in Manhattan, which he calls the New Federal State of China, which has its own flag and Himalaya Coin cryptocurrency, issues its own "Himalaya" passport, and claims to represent a post-Communist state in China.

Guo's government-in-exile is nothing more than a fraudulent micronation involved in dubious activity and is not much different than the Dominion of Melchizedek and Kingdom of EnenKio, which were the subjects of international criminal investigations for banking and securities fraud.

Nov. 13

washington post logoWashington Post, Editorial: Fresh reporting on Jan. 6 is a powerful rebuke to those minimizing events of that terrible day, Editorial Board, Nov. 13, 2021 (print ed.). One hundred and eighty-seven minutes. That is the length of time between when President Donald Trump called on his followers to march to the Capitol on Jan. 6, as Congress was convening to certify the results of the presidential election he had lost, and when he belatedly and begrudgingly released a video telling them to go home.

Those harrowing 187 minutes — during which the nation’s commander in chief sat back and watched television coverage of his supporters attacking the Capitol, even as his advisers, allies, elder daughter and besieged lawmakers begged him to intervene — were chronicled with troubling new detail in a Post investigation. The fresh reporting is a powerful rebuke to those who have sought to minimize, distort or forget the events of that terrible day.

Thanks to the work of a team of more than 75 Post journalists who interviewed more than 230 people and examined thousands of pages of court documents and internal law enforcement reports, along with hundred of videos, photographs and audio recordings, we now have the fullest understanding to date of what was going on not just on Jan. 6 but also in the days leading up to the assault and its aftermath.

Among the findings: A cascade of warnings — including explicit threats targeting Congress — was ignored by law enforcement. Some Pentagon leaders feared Mr. Trump might misuse the National Guard to remain in power and placed guardrails on deployment that may have hampered response to the insurrection. Efforts to strong-arm Vice President Mike Pence into using his ceremonial role to reject the results of the presidential election continued even after the assault on the Capitol when the shaken Congress reconvened.

New details about the pressure brought to bear on Mr. Pence make his steadfastness all the more admirable. Unfortunately, the former vice president has tarnished the record of his Jan. 6 courage with subsequent toadying to Mr. Trump, including criticizing the media for what he called overplaying the significance of Jan. 6. Mr. Pence is not alone in bending under Mr. Trump’s tightening grip on the Republican Party; as was reported in the third part of the series, nearly a third of the 390 Republicans around the country who have expressed interest in running for statewide office this cycle have supported a partisan audit of the 2020 vote, played down Jan. 6 or directly questioned the victory of President Biden.

Those continuing efforts to undermine elections and the peaceful transfer of power are why The Post’s investigation, albeit rigorous and thorough, must not be the last word. As the Post team itself noted, a number of critical questions remain. How seriously did Mr. Trump or his allies inside the government consider using emergency powers to remain in office? How did rioters know what unsecured windows would give them entry into the Capitol? Who built those gallows on the West Front of the building? And what else did Mr. Trump say or do during those horrific 187 minutes?

The special House committee investigating Jan. 6 has powers that reporters lack. It can compel testimony and subpoena documents to address the still unanswered questions — and assure that nothing like Jan. 6 will happen again.

washington post logoWashington Post, Opinion: Sorry, Mr. Trump: Executive privilege is President Biden’s to assert, Ruth Marcus, Nov. 13, 2021 (print ed.). Whose privilege is it, anyway?

That is, does executive privilege — a president’s ability to shield internal documents and private conversations with top advisers from discovery — belong to the sitting president or the president whose secrets are being sought?

The answer is complicated, but the outcome, in the case of Donald J. Trump v. Bennie G. Thompson (the head of the House Select Committee investigating the Jan. 6 insurrection), should be clear: The views of the incumbent president outweigh the position of his predecessor. The legitimate need for information takes precedence over generalized concerns about chilling internal discussions. Executive privilege is not absolute.

As U.S. District Judge Tanya Chutkan tartly explained in denying former president Donald Trump’s bid to prevent internal White House documents from being turned over to the select committee, “Presidents are not kings, and Plaintiff is not President.” This is the judicial equivalent of a mic drop. Case over.

Not actually, of course. Trump has appealed Chutkan’s ruling. A federal appeals court will hear oral arguments on an accelerated timetable later this month. A trip to the Supreme Court is somewhere between likely and inevitable.

Here’s why Trump should lose:

Executive privilege is mentioned nowhere in the Constitution, but it’s an important component of presidential authority and the separation of powers. The Supreme Court first recognized it in 1974 in U.S. v. Nixon, in which Richard M. Nixon resisted the Watergate special prosecutor’s subpoena for his White House tapes.

The court’s unanimous ruling found a “presumptive privilege for Presidential communications,” noting that “a President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be unwilling to express except privately.”

But this privilege is fundamentally for the good of the public — the country benefits from having an effective president — not the personal protection of the chief executive. So, a president’s “generalized interest in confidentiality” has to yield at times to more pressing needs, which in Nixon’s case meant “the demonstrated, specific need for evidence in a pending criminal trial.”

In the years since, the courts have made clear that this countervailing interest extends, although with lesser force, to congressional investigations as well. At the same time, the Supreme Court ruled, in a 1977 case refereeing a battle over control of Nixon’s papers, that a former president still retains executive privilege, again, not quite as strongly.

kyle rittenhouseny times logoNew York Times, Can Self-Defense Laws Stand Up to a Country Awash in Guns? Shaila Dewan, Nov. 13, 2021. The Kyle Rittenhouse and Ahmaud Arbery cases raise intriguing questions about people who take the law into their own hands and then claim self-defense.

As two closely watched murder trials played out in two different states this past week, juries heard strikingly similar stories: men took up guns in the name of protecting the public, and when they wound up killing unarmed people, they claimed self-defense.

In one case, Kyle Rittenhouse (shown above at center) fatally shot two men and wounded a third in the unrest following a police shooting in Kenosha, Wis. In the other, Ahmaud Arbery, a Black man, was shot after a pursuit by three white men who said they suspected him of a series of break-ins in the neighborhood. In both cases, the defendants claim they were entitled to start shooting because the victims were trying to take their guns.

“In other words, their own decision to carry a gun became a justification to use it, lest it be wrested away from them,” said Eric Ruben, an expert on the Second Amendment at the S.M.U. Dedman School of Law in Dallas.

For legal experts like Mr. Ruben and others, these two cases expose deep fault lines in the legal and moral concept of self-defense, a doctrine that is particularly cherished in America but ill-equipped to handle an era of expanded gun rights, growing political extremism, violent threats and a strong vigilante strain, all in a country where the perception of threat is heavily influenced by race.

“The problem is that with a citizenry armed with guns, we have blurred every line,” wrote Kimberly Kessler Ferzan, a professor of law and philosophy at the University of Pennsylvania, arguing in the Texas Law Review that a potent mix of “stand your ground” provisions and citizen’s arrest statutes have given people license not just to defend themselves but to go after others. “What is defense? What is reasonable? When may one stand one’s ground and when must one retreat? And, when is a citizen entitled to step in as an aggressor in the name of the state?”

The rifts have surfaced in several debates, beginning with whether openly displayed guns make the bearers feel safer at the expense of everyone else, whether brandishing a gun constitutes a criminal threat or an act of self-protection, and whether people can benefit from self-defense claims if their own actions contributed to the volatility of a situation.

In Michigan, elected officials clashed over whether militia members accused of plotting to kidnap Gov. Gretchen Whitmer were actually trying to make a citizen’s arrest. In St. Louis, there were arguments over whether white residents who pointed guns at Black Lives Matter protesters were committing assault or defending their homes. (They pleaded guilty to misdemeanor assault and harassment, then were pardoned by the governor.)

Nov. 11

SkyHorse Publishing, Coup in Dallas: The Decisive Investigation into Who Killed JFK, H. P. Albarelli Jr. with foreward by Dick Russell, Publication Date: Nov. 16, 2021 (720 Pages). Publisher's Description:

The CIA, Dallas, and the Hard Details of the JFK Assassination: Coup in Dallas leaves speculation and theory aside to give the hard details of who killed hp albarelli jr cover coupPresident John F. Kennedy and how the assassination plot was carried out. Through exhaustive research and newly translated documents, author H. P. Albarelli uncovers and explains the historical roots of state-sponsored assassination, finding disturbing parallels to the assassination of JFK. Albarelli goes beyond conventional JFK assassination theory to piece together the biographies of the lesser-known but instrumental players in the incident, such as Otto Skorzeny, Pierre Lafitte, James Jesus Angleton, Santo Trafficante, and others.

Albarelli provides shocking detail on the crucial role that the city of Dallas and its officials played in the maintenance of Dallas as a major hub of CIA activity, and how it led to JFK’s assassination and its cover-up. Go beyond LBJ, Lee Harvey Oswald, and Jack Ruby, and read the full, definitive account of what happened on November 22, 1963—and how it came to fruition.

Authors: H. P. Albarelli Jr., investigative reporter and author of A Terrible Mistake: The Murder of Frank Olson and the CIA’s Secret Cold War Experiments and A Secret Order: Investigating the High Strangeness and Synchronicity in the JFK Assassination, focused on the foreign and domestic intelligence apparatus, government mind control research projects, biological warfare, and political assassinations. His body of work, including articles published in Huffington Post, Pravda, and CounterPunch, has been cited in leading-edge books and periodicals. Albarelli made his home in Vermont, Florida, and the UK.

Dick Russell is an investigative journalist and bestselling author who has written for such varied publications as Time, Sports Illustrated, and the Village Voice. His books include Horsemen of the Apocalypse, Black Genius, and On the Trail of the JFK Assassins, as well as the New York Times bestsellers American Conspiracies, 63 Documents the Government Doesn’t Want You to Read, and They Killed Our President. He lives in Boston and Hollywood.

Nov. 9

washington post logoWashington Post, Jan. 6 panel can gain access to Trump records, judge rules, Spencer S. Hsu, Nov. 9, 2021. Attorneys for the former president vowed to appeal the decision.

tanya chutkanA federal judge in Washington ruled late Tuesday that hundreds of pages of Trump White House records can be turned over to a congressional committee investigating the Jan. 6 attack on the U.S. Capitol despite the former president’s objections.

The decision by U.S. District Judge Tanya S. Chutkan, right, clears the way for the release of government records requested by Congress, with a deadline of Nov. 12. Attorneys for Trump vowed to immediately appeal to the U.S. Circuit Court of Appeals for the District of Columbia Circuit.

U.S. House logo“The court holds that the public interest lies in permitting—not enjoining—the combined will of the legislative and executive branches to study the events that led to and occurred on January 6, and to consider legislation to prevent such events from ever occurring again,” Chutkan wrote in a 39-page opinion.

House Democrats are probing Trump’s communications and activities leading up to and during the mob riot by his supporters that contributed to at least five deaths and forced the evacuation of Congress as it met to confirm the 2020 presidential election results.

In court filings, the House has argued it needs the communications records “of the then-President who helped foment the breakdown in the rule of law” by assembling thousands of supporters in Washington after a months-long effort to falsely brand the 2020 election as stolen.

 kayleigh mcenany djt

washington post logoWashington Post, Jan. 6 committee subpoenas more Trump aides, including Miller, McEnany and McEntee, Jacqueline Alemany and Josh Dawsey, Nov. 9, 2021. The House select committee investigating the Jan. 6 attack on the U.S. Capitol issued subpoenas Tuesday to 10 Trump administration officials, including some of former president Donald Trump’s closest advisers who were in the White House that day.

john mcentee CustomThose subpoenaed to provide testimony and documents include John McEntee, right, the former White House personnel director; Ben Williamson, a former deputy assistant to the president and senior adviser to Chief of Staff Mark Meadows; and Nicholas Luna, the former president’s personal assistant.

Also on the list of subpoenas that went out Tuesday was Kenneth Klukowski, senior counsel to former Justice Department official Jeffrey Clark, who is also on the list because of his involvement “in drafting a letter that urged legislatures in certain states to delay certification of the election, according to the report recently released by the Senate Committee on the Judiciary,” the committee said.

Trump loyalists and top advisers including Kayleigh McEnany, above right, the White House press secretary, and Stephen Miller, the senior adviser to the former president, and Cassidy Hutchinson, a special assistant to Trump for legislative affairs, have also been asked to provide depositions and documents.

Others close to the president who were subpoenaed include Molly Michael, the Oval Office operations coordinator to Trump. Michael still works for Trump and was in the White House for much of Jan. 6. McEntee, according to the committee’s statement, was “in the White House on January 6th and was with former President Trump when he traveled to the Ellipse and spoke at the ‘Stop the Steal’ rally.”

McEntee was a key figure in hiring of Trump loyalists across the government during the final stretch of Trump’s presidency.

Luna was “reportedly in the Oval Office the morning of January 6, 2021, when former President Trump was on a phone call to Vice President Pence pressuring him not to certify the results of the 2020 presidential election,” according to the committee.

The committee has sent out subpoenas in recent weeks to aides and allies of the former president as it tries to crack his inner circle as part of its investigation into the attack as well as the former president’s attempts to overturn the 2020 election results.

It remains unclear how many people are cooperating with the probe and, if so, how much information they are providing. Chairman Bennie G. Thompson (D-Miss.) has said the panel will aggressively go after anyone who tries to stonewall the investigation.

The House recently voted to hold former Trump adviser Stephen K. Bannon in criminal contempt of Congress. But Attorney General Merrick Garland has yet to announce whether his department will prosecute Bannon for failing to cooperate. Members of the select committee have said they view the Justice Department pursuing these charges as key to getting needed information and the department’s decision could impact whether other witnesses will cooperate with the congressional probe.

washington post logoWashington Post, Two judges, one courthouse and an unusual accusation of unethical conduct, Ann E. Marimow, Nov. 9, 2021 (print ed.). For more than two decades, U.S. District Judge Emmet G. Sullivan has served on a local board that recommends judicial nominees to the president for openings on the D.C. trial and appellate courts.

But last year, Sullivan’s work on the judicial nomination commission drew criticism from a fellow judge in Washington, Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit. He said judges should not play such a role in recommending nominees to the president and accused Sullivan of unethical conduct for participating in a process that “exercises enormous political power.”

The formal misconduct complaint, made to the chief judge of the D.C. Circuit, followed an unusual year-long effort by Silberman to see Sullivan removed from his appointed role. Sullivan, in response, sought guidance from the federal judiciary’s committee that oversees judges’ conduct.

emmet sullivan 2012The dust-up between two well-known, outspoken judges who work in the same federal courthouse in Washington became public Monday when Sullivan, right, notified his colleagues that the committee determined his work is permitted and consistent with guidelines for judicial conduct.

“You are using your expertise to evaluate and recommend candidates for judicial office; you are not lobbying the appointing authority or publicly opining on the qualities of any candidate,” the Committee on Codes of Conduct said in an advisory opinion dated Nov. 5, a copy of which was reviewed by The Washington Post. “Having considered the concerns raised about your participation on the Commission, and evaluated these concerns and your ethics inquiry under the relevant Code provisions, we cannot conclude that your service on the Commission is contrary to the Code.”

The D.C. attorney general, Sullivan’s fellow commissioners on the judicial nomination board and a Stanford Law School ethics professor agreed with the committee’s conclusion.

The advisory opinion notes that a small number of judges on the 15-person committee disagreed with the panel’s advice, finding that the nominations work can be political and “may compromise the independence of the judiciary by enmeshing it with other branches of the federal government.”

The committee’s opinion and supporting documents provide insight into the inner workings of the federal court system’s efforts to address questions about judicial ethics. The controversy, laid out in a series of memos dated between August 2020 and this past Friday, is also an unusual example of a judge accusing a colleague of unethical behavior in a courthouse known for collegiality.

Nov. 8

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ny times logoNew York Times, Jan. 6 Inquiry Subpoenas Close Trump Allies, Luke Broadwater, Nov. 8, 2021. The latest batch of subpoenas from the House panel investigating the Capitol riot includes officials from former President Trump’s re-election campaign. Michael Flynn, above left, Mr. Trump’s former national security adviser, is included among those called to turn over documents and sit for depositions.

The House committee investigating the Jan. 6 attack on the Capitol issued subpoenas on Monday for six close allies of former President Donald J. Trump who promoted false claims of election fraud or worked to overturn the results of the 2020 election, including his former national security adviser Michael T. Flynn.

The subpoenas demand records and testimony from Mr. Trump’s campaign manager Bill Stepien and a senior adviser, Jason Miller, as well as others associated with a so-called “war room” of planners who sought to halt Congress’s counting of electoral votes before a violent mob overtook the Capitol. They include John Eastman, a lawyer who drafted a memo laying out how Mr. Trump could use Congress to try to overturn the election and Mr. Flynn, who discussed seizing voting machines and invoking certain national security emergency powers.

The subpoenas demand that the witnesses turn over documents this month and sit for depositions in early December.

 

Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). 

“In the days before the Jan. 6 attack, the former president’s closest allies and advisers drove a campaign of misinformation about the election and planned ways to stop the count of Electoral College votes,” Representative Bennie Thompson, Democrat of Mississippi and the committee chairman, said in a statement. “The select committee needs to know every detail about their efforts to overturn the election, including who they were talking to in the White House and in Congress, what connections they had with rallies that escalated into a riot, and who paid for it all.”

The six subpoenas bring to 25 the number issued so far by the committee. More than 150 witnesses have testified in closed-door sessions with the committee’s investigators.

Mr. Stepien was the manager of Mr. Trump’s re-election campaign, which urged state and party officials to affect the outcome of the 2020 election by asking states to delay or deny certification of electoral votes and by sending multiple slates of the votes to Congress to allow a challenge to the results, the committee said.

Mr. Miller, a senior adviser to Mr. Trump, spread the false claim of widespread fraud and coordinated with the former president and his personal lawyer Rudolph W. Giuliani in attempts to overturn the election, the committee said. It cited the fact Mr. Miller participated in a meeting on Jan. 5 at the Willard Hotel in Washington in which Mr. Giuliani, Stephen K. Bannon, and others discussed pressuring former Vice President Mike Pence to not certify the Electoral College results.

The panel also subpoenaed the Trump campaign’s national executive assistant Angela McCallum, who reportedly left voice mail for an unknown Michigan state representative in which she said that she wanted to know whether the Trump campaign could “count on” the representative. She is also believed to have told the representative that they had the authority to appoint an alternate slate of electors based on purported evidence of widespread election fraud, the committee said.

Mr. Eastman has been the subject of intense scrutiny in recent weeks after it was revealed that he wrote a memo to Mr. Trump suggesting that Mr. Pence could reject electors from certain states in order to deny Joseph R. Biden Jr. a majority of the Electoral College vote.

Mr. Eastman is reported to have participated in a briefing for nearly 300 state legislators, during which he told the group that it was their duty to “fix this, this egregious conduct, and make sure that we’re not putting in the White House some guy that didn’t get elected,” the committee said. He participated in the Jan. 5 meeting at the Willard Hotel and spoke at the rally on the Ellipse on Jan. 6 before the Capitol assault.

Mr. Flynn attended a meeting in the Oval Office on Dec. 18 during which participants discussed seizing voting machines, declaring a national emergency, invoking certain national security emergency powers and continuing to spread the false message that the 2020 election had been tainted by widespread fraud, the committee said.

It has also issued a subpoena for Bernard Kerik, the former New York police commissioner who reportedly participated in the Willard Hotel meeting and paid for rooms and suites in Washington hotels as he worked with Mr. Giuliani to promote baseless litigation and “Stop the Steal” efforts, the committee said.

 

igor danchenko john durham

Proof, Investigative Commentary: The Durham Indictment of Igor Danchenko (above at left) Is An Embarrassment to the Department of Justice, Seth Abramson, left, Nov. 7-8, seth abramson graphic2021. A longtime criminal defense attorney, Trump biographer, and chronicler of the Trump-Russia scandal unpacks an irresponsible criminal indictment by Trump Justice Department-appointed special prosecutor John Durham, above right, that has fooled reporters into thinking it significant.

On the tenth page of the first volume of the major Trump-Russia report coordinated by former FBI director Robert Mueller, the venerated lawman seth abramson proof logoopines that he hasn’t been able to access a significant percentage of the stock of evidence he’s been aiming to accrue.

The reason? Not dumb luck or any particular investigative failure at the FBI, but systematic hindrance of his efforts by people FBI logoassociated with Donald Trump.

Mueller would later on in his report disclose that much of that hindrance had been coordinated by Trump himself, aided and abetted by Trump’s personal attorneys. If this tune sounds familiar, it should—as it’s exactly what would lead, 21 months after the Mueller Report was released, to an attack on the U.S. Capitol that left five dead.

Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

The Bulwark, Investigation: Notes on an Authoritarian Conspiracy: Inside the Claremont Institute’s “79 Days to Inauguration” Report, Christian Vanderbrouk, christian vanderbroukNov. 8, 2021. Claremont’s post-election war game provides a window into the group’s ambitions.

  • The sun rises on January 6, 2021 while a nation is in crisis. Michigan’s presidential electors are in dispute after a mysterious fire in Detroit destroyed thousands of mail-in ballots, ultimately throwing the election to Congress.
  • The nation’s capital is overwhelmed by riots organized by left-wing radicals.
  • A Republican member of Congress is attacked and critically injured in the violence, potentially depriving Donald Trump of the decisive vote.
  • However, the representative heroically insists on being taken to the House floor. “With IVs and blood transfusions being administered, the member casts the deciding vote, giving Trump 26 state delegations and the needed majority.”

This is the grisly climax of a report published in mid-October 2020 by the Claremont Institute and Texas Public Policy Foundation’s (TPPF) called “79 Days to Inauguration,” prepared by “Constitutional scholars, along with experts in election law, foreign affairs, law enforcement, and media . . . bulwark logo big shipcoordinated by a retired military officer experienced in running hundreds of wargames.”

Among these luminaries were figures such as John Eastman—lawyer for Donald Trump and author of a memo advising Vice President Mike Pence to unilaterally block certification of Joe Biden’s win in order to buy time for GOP-controlled state legislatures to send competing slates of electors—and K.T. McFarland, who served as deputy national security advisor under Michael Flynn in the Trump White House.

republican elephant logoOther participants include Kevin Roberts, then-executive director of the Texas Public Policy Foundation (soon to be head of the Heritage Foundation), Jeff Giesea, “a [Peter] Thiel protégé and secret funder of alt-right causes,” and Charles Haywood, a fringe blogger who anxiously awaits an American “Caesar, authoritarian reconstructor of our institutions.”

Yet despite the authors’ pretensions to scholarship and rigor — “for a simulation to be valuable, the other side gets a vote and actions must be based in realism” —  the final document is a frenzied and paranoid piece of work, revealing of the anxieties and aspirations of the authoritarian right.

Practically, the report is an instruction manual for how Trump partisans at all levels of government — aided by citizen “posses” of Proud Boys and Oath Keepers — could, quite literally, round up opposition activists, kill their leaders, and install Donald Trump for a second term in office.

evan newmann riot dojevan neumannMoscow Times, U.S. Capitol Rioter Seeks Asylum in Belarus – State TV, Staff Report, Updated Nov. 8, 2021. A man on the FBI’s Most Wanted List for allegedly attacking police during the Jan. 6 U.S. Capitol riot is now seeking asylum in Belarus, the ex-Soviet country’s state-run television reported Sunday.

Evan Neumann, 48 (shown above in an FBI photo at the Jan. 6 insurrection and below on state television expressing gratitude for his protectors), is wanted in the United States on charges of violent entry and disorderly conduct on Capitol grounds, as well as for assaulting, resisting and obstructing law enforcement during civil disorder. Neumann denies the charges as “unfounded.”

FBI logoNeumann sold his California home in spring and was thought to have moved to Ukraine to evade arrest, ABC News reported this summer.

“Judging by his story, [Neumann] is the same type of simple American whose shops were burned by Black Lives Matter activists,” a Belarus 1 TV channel presenter said, echoing a common talking point on Russian state television.

Neumann “sought justice and asked uncomfortable questions” following the 2020 U.S. elections disputed by ex-President Donald Trump, the presenter added, “but lost almost everything and is being persecuted by the U.S. government.”

In a sit-down interview, Neumann recalled crossing swampy forests and meeting wild hogs and snakes in his journey from Ukraine to Belarus. Belarus 1 reported that Neumann traveled from the U.S. to Italy in March, then took a train to Switzerland and drove to Germany and Poland before settling in western Ukraine, where he had rented an apartment for four months.

Neumann said he noticed Ukrainian security services “following” him two weeks into his stay, which prompted him to cross into neighboring Belarus and seek asylum. Belarusian migration authorities declined to comment, citing confidentiality of personal data, the Russian state-run RIA Novosti belarus flagreported Monday. At least three U.S. citizens have applied for asylum in Belarus so far in 2021, the outlet added.

Belarus meanwhile has been accused of orchestrating a wave of migrants and refugees, mainly from the Middle East, toward European Union members' borders in retaliation to EU sanctions. Belarusian leader Alexander Lukashenko has denied the charges.

Daily Beast, Capitol Riot Suspect Evan Neumann Claims Asylum in Belarus After Fleeing FBI, Philippe Naughton, Nov. 8, 2021. A California man who is on the FBI’s Most Wanted List for allegedly attacking police during the Jan. 6 Capitol riot has claimed asylum in the former Soviet republic of Belarus.

daily beast logoEvan Neumann, 48, was charged in July on six separate counts, including assaulting officers and violent entry, after being identified from footage of the storming of Congress. But by then he had already sold his house in the Bay Area and fled to Europe, initially hiding out in Ukraine before deciding to cross over into Belarus—often described as “Europe’s last dictatorship.”

His hosts appear delighted to have him. Belarus state TV portrayed him as a victim of government persecution and described him as “the same type of simple American whose shops were burned by Black Lives Matter activists.”

JUSTICE ON THE BRINK: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court, By Linda Greenhouse

ny times logoNew York Times, TBook Review: The dean of Supreme Court journalists examines whether the institution has become a conservative bastion, Noah Feldman, Nov. 8, 2021. Linda Greenhouse, who covered the Supreme Court for The New York Times for 30 years, from 1978 to 2008, is the acknowledged dean of living Supreme Court journalists.

ruth bader ginsburg scotus

Her stated goal in Justice on the Brink is not analyzing Ruth Bader Ginsburg’s choice to retain her seat but “chronicling the life of the Supreme Court from July 2020 through June 2021.” No one can recount judicial decisions as accessibly and intelligently as Greenhouse. She does an excellent job of describing the court’s jurisprudence during that year, interspersing short biographical observations of the justices and filling in useful background.

The challenge the book faces, therefore, doesn’t derive from Greenhouse’s admirably clear account of the court’s business. It’s the unfortunate fact that, in the year under consideration, the most important news about the Supreme Court consisted of things that the court’s activist conservative majority did not do.

True, in its so-called “shadow-docket” of responses to emergency applications, the Supreme Court repeatedly struck down by 5-to-4 votes Covid restrictions applying to religious worship when, in the majority’s view, secular functions were being exempted from the restrictions.

linda greenhouse thumb CustomYet none of these decisions is of historical importance even slightly comparable to the three major decisions reached by the justices in the year discussed by Greenhouse, right.

With constitutional democracy itself on the line, and a sitting president outrageously denying the validity of the vote that would put him out of office, the Supreme Court did not overturn the valid and legitimate results of the 2020 presidential election, despite being invited to do so by Trump’s campaign lawyers. The court did not invalidate the Affordable Care Act, despite being asked to end Obamacare by Trump’s Department of Justice. And the court did not reverse 30-plus years of First Amendment precedent by creating a constitutional right to automatic exemptions from neutral, generally applicable laws, despite being expected to do so by just about every court watcher, myself included.

Nov. 4

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

ny times logoNew York Times, Opinion: Do Gun Rights Depend on Abortion Rights? That’s Now Up to the Supreme Court, Linda Greenhouse, (shown at right on the cover of her memoir, "Just a Journalist"), Nov. 4, 2021. It might linda greenhouse cover just a journalisthave looked like a coincidence that questions of abortion and guns both reached the Supreme Court in the same week. But it wasn’t, really. Powerful social movements have devoted years to steering these two issues toward a moment of truth in a court reshaped in large measure by those same movements.

Recall that in the Rose Garden ceremony in September of last year in which President Donald Trump introduced his third Supreme Court nominee, Amy Coney Barrett, to the country, he couldn’t refrain from observing that “rulings that the Supreme Court will issue in the coming years will decide the survival of our Second Amendment.” The president didn’t mention abortion. Given his nominee’s well-known opposition to Roe v. Wade, he didn’t have to.

So, perhaps inevitably, it has come to this: One right, established for nearly half a century, faces erasure, while the other, extracted 13 years ago from a contorted reading of an 18th-century text, may be poised for an ahistoric expansion.

Little emerged in the arguments this week to knock the rights to abortion and gun possession off these apparent trajectories. Although the consensus seems to be that a majority of the justices may not permit Texas to get away with walling off its appalling anti-abortion law from judicial challenge, the fate of the actual right to abortion itself depends not on the pair of Texas cases the court heard this week, but on the case from Mississippi it will hear on Dec. 1.

And on the Second Amendment case, a challenge to New York State’s limits on licenses for carrying a concealed weapon, there was little surprise that a majority appeared ready to interpret the Constitution to require a substantial expansion of individual gun rights.

Still, something interesting did emerge from the proximity of the week’s arguments. The Texas law, S.B. 8, seeks to take state officials out of the role of enforcing the ban on abortion that the law imposes at roughly six weeks of pregnancy. Instead, any individual may bring a private damages action for at least $10,000 against anyone who provides or enables an abortion in violation of the law. At least while Roe v. Wade and Planned Parenthood v. Casey remain as precedents, the six-week ban is flagrantly unconstitutional.

The idea of turning every citizen into a potential vigilante is to immunize state officials from a federal court lawsuit that would challenge the law’s constitutionality, on the theory that no official has anything to do with the law’s enforcement.

But what about blue states? A brief filed against Texas by a gun-rights group, the Firearms Policy Coalition, raised the prospect that if the state’s vigilante mechanism prevails, states favoring limitations on gun ownership contrary to Supreme Court precedent could enact their own copycat laws authorizing individuals to sue gun owners.

Nov. 3

ny times logoNew York Times, Prominent Conservatives Back Letting States Limit Guns in Public, Adam Liptak, Nov. 3, 2021 (print ed.). When the Supreme Court hears a major Second Amendment case on Wednesday, many expect that the court’s recently expanded conservative majority will be poised to strike down the New York law under review, one that imposes strict limits on carrying guns outside the home.

But a brief filed by a group of prominent conservative lawyers and former government officials in Republican administrations has complicated that picture. Drawing on originalism, the interpretive method embraced by the conservative legal movement, the brief argued that “the original understanding of the Second Amendment was that there is not an absolute, unfettered right to carry loaded guns in public.”

J. Michael Luttig, a former federal appeals court judge revered by conservatives, was among the lawyers who filed the brief. He said the issue was straightforward.

“When you look at the history and tradition, spanning six or seven centuries, you indisputably find that public carry of guns has been variously prohibited and regulated throughout the entire time,” he said in an interview. “New York’s statute, and the statutes in other states that are its equivalent, fit very comfortably within the history and tradition of firearm regulation.”

A brief filed in a major gun control case argued that limits on the public carrying of weapons were consistent with the Second Amendment.

Looking to history is a central feature of originalism, the method of interpreting the Constitution that seeks to determine its original public meaning.

Other lawyers who signed the brief included Peter D. Keisler, a former acting attorney general in the George W. Bush administration; John B. Bellinger III, a top State Department and White House lawyer under Mr. Bush; and Carter Phillips, a leading Supreme Court lawyer who served in the Justice Department during the Reagan administration.

Paul D. Clement, a former solicitor general in the Bush administration who represents the two men and the gun rights group challenging the New York law, took a different view of the relevant history.

“The founding generation understood the Second Amendment and its English predecessor to guarantee a right to carry common arms for self-defense,” he wrote in a Supreme Court brief.

 

jeanine djt jeanine pirro 2018 book

Fox News personality "Judge" Jeanine Pirro (left) and President Donald Trump (right) promote the host's book in the Oval Office in 2018. Image via Pirro's Twitter.

Raw Story, Fox's Judge Jeanine orchestrated payments for ‘command centers’ that could blow up Trump’s defense, Travis Gettys, Nov. 03, 2021. Fox News host Jeanine Pirro orchestrated campaign payments for 'command centers' at DC hotels that could blow up Donald Trump's executive privilege claims.

Former New York City mayor Rudy Giuliani, right, and the city's former police chief Bernie Kerik had been paying for hotel rooms and travel related to their rudy giuliani recentefforts to overturn Trump's election loss, but the pair grew concerned by early December as the bills piled up, reported the Washington Post.

fox news logo Small"How do I know I'm gonna get my money back?" Kerik thought at the time, as he recently told the newspaper.

Kerik knew that Giuliani hadn't been reimbursed for his expenses or paid for his services, but their friend Jeanine Pirro, a Fox News host beloved by the twice-impeached one-term president, called Republican National Committee chairwoman Ronna McDaniel and asked her to help them out.

McDaniel, below at left, spoke to Kerik by phone but refused to give him money, and instead recommended that he ask the Trump campaign to reimburse his expenses, according to the former police chief and a GOP official.

The campaign cut its first check to Kerik in mid-December with Trump's approval, according to a former senior campaign official, and eventually paid more than $225,000 for hotel rooms and suites at the Willard Hotel in Washington, D.C., that served as a "command center" for efforts to overturn the ronna mcdaniel djt Customelection results ahead of Jan. 6 riots.

Those payments, according to legal experts, could undermine Trump's claims of executive privilege over documents and testimony related to the U.S. Capitol riots sought by the House select committee investigating the insurrection.

"[This] further undermines a wildly broad assertion of executive privilege," said Richard Ben-Veniste, a former Watergate prosecutor. "Executive privilege is typically limited to the protection of communications involving a president's official duties — not to those relating to personal or political campaign matters."

Former Justice Department official John Yoo, who advised former vice president Mike Pence's staff that there was no legal basis to deny the certification of Joe Biden's election win, agreed that the payments could upend Trump's defense.

"If he acts as a president, he gets these things we talk about — executive privilege and immunity," Yoo said. "But if he's acting as a candidate, he's deprived of all of those protections."

ricardo monkey morales oswald gunWhoWhatWhy, Claim: JFK Assassin Oswald Was CIA-Trained — And Bad at Shooting, Chris Roberts, Nov. 3, 2021. What’s hidden in the government records related to the John F. Kennedy assassination that President Joe Biden (and Donald Trump before him) promised to release — in Biden’s case as recently as last month — and then didn’t?

Only the CIA, FBI, and archivists know, and only they can say for certain, what knowledge survived the 1960s and 1970s and what vital clues ended up in the shredder. Maybe something is in there that could vet the most recent claim that Lee Harvey Oswald — whom the Warren Commission fingered whowhatwhy logoas the lone shooter and whom the House Select Committee on Assassinations (and almost everyone else alive) believe was probably part of some conspiracy — was a CIA asset who received CIA training before November 22, 1963, and who, according to his purported trainer, was a terrible shot.

Maybe there’s nothing in the archives that could verify that one. Either way, it might be nice to know!

Over the Halloween weekend, the Miami Herald picked up a story, initially dropped via Spanish-language radio, that a notorious anti-Castro Cuban exile and sniper trainer who had verifiably worked with the CIA recognized Oswald as one of his trainees in a secret CIA sniper camp, or so he told his sons decades later.

Additionally — according to the tale related on Miami-based Actualidad 1040 AM by one of the sons of Ricardo “Monkey” Morales (shown above at left) and later repeated to the Herald — Morales and some associates were sent to Dallas on the order of his CIA handler two days before the assassination for an unspecified “clean-up” mission. They were then recalled to Miami after the shooting, without receiving further orders.

Possible? Sure. Plausible? Those records certainly would be handy!

According to 58-year-old Ricardo Morales Jr., about a year before the elder Morales was shot in the back of the head during a December 1982 fracas in a Miami bar — a killing his attorney said was a setup — the ex-spy had become paranoid and fearful about his safety.

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 Nov. 2