SCOTUS Review

News 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. 

2020-2021-2022-2023

March

March 19

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

In a now-deleted Facebook post, New Mexico county official Couy Griffin, above, predicted of Inauguration Day at the Capitol, “blood will run out of the building.”

Washington Post, The Jan. 6 investigation is the biggest in U.S. history. It’s only half done, Spencer S. Hsu, Devlin Barrett and Tom Jackman, March 19, 2023 (print ed.). To date, roughly 1,000 people have been charged for their alleged roles in the events of that day. The total could grow above 2,000, and a federal courthouse strains to handle what may be years more of trials.

The city’s federal court system is bracing for many years more of trials stemming from the Jan. 6, 2021, riot at the U.S. Capitol, with new charges possible against as many as 1,000 more people.

In recent months, law enforcement and judicial authorities have engaged in discussions to manage the huge volume of Jan. 6 cases without overwhelming the courthouse where pleas and trials are held, people familiar with the matter said, speaking on the condition of anonymity to discuss internal operations.

“It’s an enormous, enormous case and, by almost any measure, the largest case the Justice Department has ever had,” said Randall Eliason, a former federal prosecutor who now teaches law at George Washington University. “Big criminal investigations that are far less complicated than this often take several years.”

Eliason said that while the riot cases may be about halfway over, there are indications some of the other branches of the investigation — like the false electors scheme or efforts to use Justice Department officials to undo the election results — appear to be further along, because the witnesses now being subpoenaed include some of the most thorny legal matters and the people closest to former president Donald Trump. Those are generally indicators that an investigation is nearing the end of the fact-gathering phase, he said.

“There are a lot of court fights over privilege, and those take time, and you can’t just plow past them and not try to get critical evidence,” Eliason said.

The Attack: The Washington Post's investigation of the Jan. 6 riot at the Capitol and its aftermath

Prosecutors are hopeful many will be incentivized to plead to help manage the crush of cases, which already have strained the court in the nation’s capital. A Washington Post analysis of the cases so far shows defendants who seek a trial rather than plead guilty end up getting about a year of prison time added to their sentences.

March 18

World Crisis Radio, Weekly Strategic Overview: Indictment watch for Trump! Webster G. Tarpley, right, author, historian, activist, March 18, 2023 (122:53 min.). On eve of bungler Xi’s visit to Moscow, Putin hit by war crimes indictment and arrest warrant from International Criminal Court in The Hague!

Charges include kidnapping and deporting children from Ukraine into Russia; Vlad’s co-defendant will be Maria Lvova-Belova, Commissioner for Children’s Rights, also implicated in child deportations;

New York City prepares for possible reactions to charges against Trump by DA Bragg; Citing likely crime/fraud exception, DC chief judge opens door to grand jury testimony by Don’s lawyers;

Rolling back deregulation is key to ending ravages of globalization; for US banks, this means ending regulatory capture, banning crypto and derivatives, and instituting a 1% Wall Street sales tax to reduce speculation and promote tangible physical production, including the new arsenal of democracy;

Vast mass of Sargasso seaweed floats toward Florida, just in time to stymie the deSantis election campaign;

A dangerous example of semantic infiltration: helping right-wing extremists, reactionaries, and fascists camouflage themselves as ”conservatives!”

Palmer Report, Opinion and Analysis: Manhattan DA signals to law enforcement that Donald Trump is being indicted. Here comes the serious part, Bill Palmer, right, March 18, 2023. Major news outlets are now reporting that Manhattan District Attorney Alvin Bragg has met with multiple law enforcement agencies to put the logistics in place for Donald Trump’s criminal indictment. In turn, Trump’s attorneys are putting it out there publicly that Trump intends to surrender himself for processing and arraignment, just like any other criminal defendant.

In other words, this really is happening. We’ve known all along that this was going to end up happening. The pieces have been incrementally falling into place for a very long time in a way that continuously made clear this was going to happen. And recently the pieces have been rapidly falling into place in a way that made clear this was going to happen soon. But now it is happening.

We should take a moment to remind ourselves that this isn’t some movie script. In the movies, story arcs tend to play out in the most dramatically constructed ways possible, complete with a climax that achieves a dramatic peak. In the real world, dramatic arcs are rarely so linearly constructed.

If this were a movie, Donald Trump would refuse to surrender himself, perhaps barricade himself inside his mansion, maybe even embark on a plot to flee the country which would end with the District Attorney chasing him through the airport and catching the cabin door just before it closes. It would happen that way in the movie because it would make for the most dramatic and suspenseful climax, whether it made sense for those characters to be making those choices or not.

In the real world, things tend to be less dramatic and more pragmatic. Even in Trump’s increasingly frantic state, he surely understands that trying to flee the country would result in a harsh life of poverty in a foreign land at best, and (if he gets caught in the act) pretrial incarceration until his trial.

For that matter Trump likely understands that if he forces law enforcement to come and forcibly drag him out of his home – or for that matter if there’s even so much as a whiff in the media about the possibility of him refusing to surrender when ordered – the judge assigned to his criminal case might be less than inclined to grant bail. And Trump knows that right now, the best case scenario he can hope for in life is to be out on bail.

Not that bail is going to be a good situation for him, mind you. Yes, the judge assigned to the case is going to look at his lack of a criminal record, the nonviolent nature of the charges, and the lack of evidence to suggest he’s an international flight risk (Twitter conspiracy theories aside), and likely grant him bail. But that bail may come with conditions. He may be forced to get all of his interstate travel approved. And at some point the judge in the case will surely end up hitting Trump with a gag order preventing him from publicly attacking the District Attorney or even so much as publicly discussing the case against him at all. If Trump violates that gag order, the judge can and will haul him in and assign more harsh bail restrictions or ultimately revoke it entirely.

In other words, the criminal justice system is about to treat Donald Trump like it treats any other criminal defendant who’s under felony indictment and awaiting trial. The judge in the case will own Trump, so to speak. The criminal justice system won’t view Trump as a former President or as a candidate in a future election. It’ll view him as a criminal defendant. The usual rules will apply.

It’s important to keep in mind that Donald Trump, seventy-six years old and having clearly lost a step or three in the cognitive department, is a newcomer to the criminal justice system. In spite of more than half a century of committing crimes, Trump has never been criminally indicted before. Not at the federal, state, or local level. The secret that the wealthy and powerful use for keeping themselves out of prison is that they pull strings behind the scenes to quietly keep themselves from getting indicted in the first place.

But when the wealthy and powerful do occasionally get indicted, their options suddenly become rather limited. They can afford better lawyers than most criminal defendants can. But if the case against you is overwhelming then even the best lawyers won’t dramatically improve your odds of acquittal. And in spite of his supposed wealth, Trump has been employing some of the most inept lawyers imaginable. So he doesn’t even appear to have that working for him.

Let’s be real: no matter how anyone anywhere tries to spin Donald Trump’s criminal indictment, and no matter what anyone’s dramatic expectations might be heading into this, the reality is still that neither side in these things ever has a magic wand. Prosecutors in various jurisdictions didn’t have a magic wand for producing viable indictments any sooner than this. And accordingly, now that prosecutors have taken the time to painstakingly build what appear to be overwhelmingly strong indictments against Trump, he does not have a magic wand for shaking off indictment.

This is not the political arena, where Trump can just bully his way through whatever conflict he’s facing. Nor is this an arena in which being dramatic or entertaining will in any way help you. This is the criminal justice system. It’s an arena that Trump has spent a lifetime working feverishly to avoid having to participate in, because as a career criminal, he’s known better than anyone that the criminal justice system is not an arena that anyone wants to be in or can prosper in. Yet now he’s being forced to enter that arena anyway.

That’s why Donald Trump is already indicating that when he’s indicted he intends to just walk in through the front door and surrender himself for arrest and processing (and yes he’ll be considered “under arrest” whether there are handcuffs involved or not). It’s not the kind of play that Trump wants to make. It’s just that going along with the criminal justice system’s demands, begging for bail, and hoping to find some narrow angle for getting acquitted at trial is the only play he has left. Surrendering voluntarily is not a good move for Trump. It’s just the least bad move. And no matter how he plays it, the most likely outcome is that he spends the final years of his life behind bars.

March 5

Above is a high-resolution Daguerreotype portrait of President Zachary Taylor, a Southern-born pro-Union former general famed for leadership during at the Mexican-American War, shown at the White House during March 1849, in a portrait by Mathew Brady (Source: Library of Congress).

Salon, Historical Commentary: Did the South assassinate this president to preserve slavery? Forensic scientists say it's possible, Matthew Rozsa, March 5, 2023. Zachary Taylor died in 1850 of food poisoning. Some experts think the culprit was arsenic — here's why

Background: President Zachary Taylor (elected as a member of the Whig Party, had spent most of his career in the military, and it was obvious to the trio of Southern politicians as they confronted him. They were warning their fellow Whig that he needed to abandon his support for America's growing anti-slavery movement. The year was 1850: Taylor, in office for a mere sixteen months, staunchly opposed allowing slavery to spread into the new territories America had wrested from Mexico; and Taylor was equally adamant that the pro-slavery Texas government, which lacked a valid claim to disputed land in eastern New Mexico, should not be allowed to use armed force to seize that territory.

Sensing his stubbornness on these issues, Reps. Charles Conrad, Humphrey Marshall and Robert Toombs informed Taylor that Texas and the South were not just opposed to his policies; they were violently opposed.

For several days thereafter, Southerners grumbled among themselves about impeaching Taylor — the Vice President, Millard Fillmore, disagreed with Taylor and shared their views right down the line — or even seceding from the Union and starting a Civil War. Yet three days later, the entire conversation had been rendered moot: Taylor had mysteriously taken gravely ill after eating cherries and iced milk during 4th of July celebrations. Five days after that, Taylor was dead, and within two months President Fillmore had given the South virtually everything it wanted in a legislative package known as the Compromise of 1850.

If Taylor's death sounds awfully suspicious (and politically convenient) to you, some good news: There are historians and scientists who agree with you. Doctors officially diagnosed Taylor with cholera morbus from eating too many cherries and drinking too much iced milk. His symptoms included severe stomach pains, sharp pains on the side of his chest, vomiting, diarrhea, fevers, sweating, thirst, chills and fatigue. These could very well have meant that he developed gastroenteritis, especially considering the ghastly sanitary conditions in 19th-century Washington D.C.

Yet as forensic scientists are quick to note, these symptoms are also synonymous with arsenic poisoning. Arsenic, a highly toxic element that resembles a metal but which is technically a metalloid, was an easily accessible poison in the mid-19th century; its poisonous properties were widely known.

For more than a century after Taylor's death — long after the 12th president had faded into obscurity — history buffs and forensic science experts alike wondered if there was any way to prove what had really happened to Taylor. One of those scholars was novelist Clara Rising, a former humanities professor who shared her views with Coroner Richard F. Greathouse of Jefferson County, Kentucky. That is where Taylor is buried, and in 1991 his body was exhumed so samples of hair, skin, nails and other tissues could be examined.

March 3

Washington Post, Supreme Court asks for more briefs on important election-law case, Robert Barnes, March 3, 2023. Request comes after North Carolina Supreme Court, newly controlled by Republicans, decides to rehear challenge of congressional map.

The Supreme Court on Thursday called for more briefing on whether it should still decide one of the term’s most important cases, involving whether state legislators may manipulate congressional district lines and set federal voting rules without any oversight from state courts.

The case is one of the most important and potentially far-reaching of the term. Justices said they want to know how a decision by the North Carolina Supreme Court to rehear the lawsuit affects the high court’s proceedings.

At issue is “independent state legislature theory,” which holds that the U.S. Constitution gives exclusive authority to state legislators to structure federal elections, subject only to intervention by Congress. That is true, those who favor the theory say, even if those plans result in extreme partisan voting maps for congressional seats and violate voter protections enshrined in state constitutions.

February

Feb. 28

New York Times, Supreme Court to Hear Challenges to Student Loan Forgiveness Plan, Adam Liptak, Feb. 28, 2023. President Biden’s executive action faces a conservative court that insists on authorization by Congress for initiatives with such major consequences. The Biden administration wants to wipe out $400 billion in student debt by forgiving up to $20,000 per borrower. Six Republican-led states — Nebraska, Missouri, Arkansas, Iowa, Kansas and South Carolina — and two individuals sued to stop the plan.

The Supreme Court will hear arguments on Tuesday over the legality of one of the most ambitious and expensive executive actions in the nation’s history: the Biden administration’s plan to wipe out more than $400 billion in student debt because of the coronavirus pandemic.

The justices are hearing two cases, starting at 10 a.m. Each case will receive at least one hour of arguments but is expected to run well over that. The court does not allow cameras, but audio of the arguments will be streamed live.

New York Times, Here’s what to know about President Biden’s student loan forgiveness plan, Ron Lieber and Tara Siegel Bernard, Feb. 28, 2023. President Biden’s move means the student loan balances of millions of people could fall by as much as $20,000. This F.A.Q. explains how it will work.

A federal appeals court temporarily halted President Biden’s student debt relief program in November, placing all debt cancellation on hold. The Department of Education has stopped accepting loan applications during the halt, but said it would hold all previously submitted applications.

The Supreme Court will hear arguments on Tuesday, Feb. 28 as it considers whether six Republican-led states are entitled to sue the federal government to block Mr. Biden’s loan forgiveness program. The six states are calling the president’s plan an abuse of executive authority, while the administration’s legal case focuses on the pandemic’s lingering effects on the finances of millions of borrowers.

Nearly two months after President Biden announced that the federal government would cancel up to $20,000 worth of federal student loans, the program began accepting applications from eligible borrowers.

Tens of millions of people will qualify. But debtors with high incomes won’t receive any relief, and those who do qualify will need to navigate the balky federal loan servicing system and keep a close eye on their accounts and credit reports for any mistakes.

Feb. 26

Washington Post, Opinion: The justices halt an execution — and reveal themselves in the process, Ruth Marcus, Feb. 26, 2023 (print ed.). When a prisoner on death row wins a case before this Supreme Court, the logical response is to breathe a sigh of relief. That doesn’t happen very often these days.

So good for John Montenegro Cruz, an Arizona man convicted in 2005 of murdering a Tucson police officer, and good for Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh, who joined with the court’s three liberals to grant Cruz a new sentencing hearing.

But read the facts of Cruz’s case, and a less cheery, more chilling, reaction seems called for: How can it be that Cruz’s life was spared by only a bare majority? Four other conservatives, in a decision written by Justice Amy Coney Barrett, would have stuck with a cramped rules-are-rules mentality to let an obviously unconstitutional death sentence stand.

How unconstitutional? Eleven years before Cruz’s trial, in Simmons v. South Carolina, the Supreme Court had ruled that when prosecutors arguing for the death penalty cite the risk of future “dangerousness,” defendants have the right to let the jury know that the alternative to a death sentence would be life without the possibility of parole.

That’s what Cruz asked for at his trial. The judge not only refused — he incorrectly instructed the jury that Cruz could be eligible for parole after 25 years. And that seemed to make a difference to the jurors in deciding whether to impose a death sentence.

“Many of us would rather have voted for life if there was one mitigating circumstance that warranted it,” the jury foreperson and two other jurors said in a statement the day after the sentence was imposed. “In our minds there wasn’t. We were not given an option to vote for life in prison without the possibility of parole.”

So Cruz sought a new trial. He lost, and lost again before the Arizona Supreme Court, which, again incorrectly, asserted that Simmons didn’t apply to Arizona’s death penalty sentencing scheme because parole was available. In 2009, the U.S. Supreme Court declined to hear the case.

Feb. 20

The official portrait of the U.S. Supreme Court

Washington Post, Opinion: There is only one way to rein in Republican judges: Shaming them, Perry Bacon, Feb. 20, 2023 (print ed.). The confirmation of several of President Biden’s nominees for district and circuit judgeships has now put the total number of federal judges that he has appointed at over 100. Under Biden, the Senate is confirming judges at a faster pace than it did under Presidents Donald Trump or Barack Obama, an achievement Democratic officials are celebrating.

But these appointments don’t come close to addressing the problem: America’s judiciary is dominated by conservatives issuing an endless stream of rulings that help corporations, the rich and the bigoted while hurting working-class people, women and minorities in particular. Biden’s lower-court appointees must follow the precedents set by the Republican-dominated U.S. Supreme Court or their rulings will be overturned. Meanwhile, the high court usually allows very-right-wing opinions issued by lower-level conservative judges to remain in place.

So at least in the short term, there is only one real option to rein in America’s overly conservative judiciary: shame.

Democratic politicians, left-leaning activist groups, newspaper editorial boards and other influential people and institutions need to start relentlessly blasting Republican-appointed judges. A sustained campaign of condemnation isn’t going to push these judges to write liberal opinions, but it could chasten them toward more moderate ones.

There are a ton of people and institutions looking to rein in Republican-appointed judges. But many proposed reforms, while useful, are too small-bore: a code of ethics that Supreme Court justices must follow; more appointments of progressives to lower-court judgeships; limitations on the Supreme Court’s use of its so-called shadow docket. More ambitious ideas have no chance of being adopted right now: term limits for Supreme Court justices; “court-packing” that increases the number of left-leaning justices; limitations on federal judges’ ability to invalidate legislation.

With little ability to formally limit the power of conservative judges, there are only informal means left.

Washington Post, Terrorists killed their daughter in Paris. Now they’re fighting Google in the Supreme Court, Gerrit De Vynck, Feb. 20, 2023. Are tech companies liable when their algorithms recommend terrorist content? The court’s answer could upend the way the internet works.

Beatrice Gonzalez was at the barber shop she runs in Whittier, Calif., when she received the news that would change her life.

Her daughter, Nohemi Gonzalez, was one of 130 people killed by terrorists during shooting rampages in Paris on Nov. 13, 2015. Nohemi, a senior at California State University at Long Beach, was there on an exchange program, and was shot along with 19 others at a busy bistro while out with friends. The Islamic State would claim responsibility for the attack.

Nohemi, or Mimi to her family, had worked hard for years to get into college, excelling at everything she put her mind to, Gonzalez said. She was her only daughter.

“I was in pain; I was in a bubble,” she said during an interview with The Washington Post.

When lawyers from an Israeli law center that specializes in suing companies that aid terrorists asked if she was interested in launching a lawsuit related to her daughter’s death, she said yes, hoping that it might be a way to honor Nohemi’s memory.

Now, eight years after Nohemi’s killing, Gonzalez is in Washington, preparing to watch that case argued before the Supreme Court. The Israeli law center, a nonprofit called Shurat HaDin, which translates from Hebrew as “letter of the law,” has spent years suing tech companies for hosting propaganda and recruitment messages from terrorist and militant organizations. It has mostly lost.

In 2017, the Gonzalez family and the lawyers filed their case, arguing that Google’s YouTube video site broke the U.S. Anti-Terrorism Act by promoting Islamic State propaganda videos with its recommendation algorithms. Google says the case is without merit because the law protects internet companies from liability for content posted by their users. The lower courts sided with Google, but the family appealed, and in October the Supreme Court agreed to hear the case.

Washington Post, Editorial: The Supreme Court could throw the internet into chaos, Editorial Board, Feb. 20, 2023. Section 230 of the Communications Decency Act is vexing: No one likes it, but neither can anyone come up with a satisfying proposal for fixing it. Now, with good outcomes elusive, the Supreme Court is in a position to produce an especially bad one.

On Tuesday, the justices will hear Gonzalez v. Google, a case whose decision could wipe away what are called the 26 words that created the internet. Section 230 protects platforms from liability for most content contributed by third parties — which means that when individuals send defamatory tweets or post inciting comments, Twitter, Facebook, YouTube and their peers aren’t held legally responsible. Gonzalez asks a slightly more complicated question: When platforms algorithmically promote those tweets, comments or, in this instance, videos, does their legal shield disappear?

The facts of the suit are tragic, although attenuated. The case was brought by the family of a 23-year-old American college student killed in a Paris restaurant during an attack by Islamic State followers. But rather than alleging that the murderers in question were radicalized on YouTube, they allege that YouTube more generally promoted radicalizing material via its “Up Next” recommendation feature.

The theory behind treating material that platforms promote differently from material that platforms simply host has some appeal. It’s easy enough to say sites can’t be responsible, either morally or logistically, for everything that their millions and sometimes billions of users decide to stick on the web. But arguing that they aren’t responsible for the decisions their own employees encode into their own systems is more difficult.

That doesn’t mean there’s nothing to be done about Section 230, and it certainly doesn’t mean there’s nothing to be done about algorithms’ role in shaping platforms. That starts with greater transparency surrounding the outcomes these algorithms are designed to produce, as well as the outcomes they actually produce in practice. Perhaps there’s even room to harness those findings so that platforms may be held liable for negligence when they systematically elevate illegal content and don’t attempt to remedy that failing. (First Amendment issues, in almost any attempt at reforming this thorny law, will inevitably arise.)

But all that is work for Congress. Lawmakers wrote the 26 words that created the internet. It’s their job to write the words that determine its future.

Feb. 17

New York Times, Fox Stars Privately Expressed Disbelief About Election Fraud Claims. ‘Crazy Stuff,’ Jeremy W. Peters and Katie Robertson, Feb. 17, 2023 (print ed.). The comments, by Tucker Carlson (above), Sean Hannity and others, were released as part of a defamation suit against Fox News by Dominion Voter Systems.

Newly disclosed messages and testimony from some of the biggest stars and most senior executives at Fox News revealed that they privately expressed disbelief about President Donald J. Trump’s false claims that the 2020 election was stolen from him, even though the network continued to promote many of those lies on the air.

The hosts Tucker Carlson, Sean Hannity and Laura Ingraham, as well as others at the company, repeatedly insulted and mocked Trump advisers, including Sidney Powell, right, and Rudolph W. Giuliani, in text messages with each other in the weeks after the election, according to a legal filing on Thursday by Dominion Voting Systems. Dominion is suing Fox for defamation in a case that poses considerable financial and reputational risk for the country’s most-watched cable news network.

“Sidney Powell is lying by the way. I caught her. It’s insane,” Mr. Carlson wrote to Ms. Ingraham on Nov. 18, 2020.

Ms. Ingraham responded: “Sidney is a complete nut. No one will work with her. Ditto with Rudy.”

Mr. Carlson continued, “Our viewers are good people and they believe it,” he added, making clear that he did not.

The messages also show that such doubts extended to the highest levels of the Fox Corporation, with Rupert Murdoch, left, its chairman, calling Mr. Trump’s voter fraud claims “really crazy stuff.”

On one occasion, as Mr. Murdoch watched Mr. Giuliani and Ms. Powell on television, he told Suzanne Scott, chief executive of Fox News Media, “Terrible stuff damaging everybody, I fear.”

Dominion’s brief depicts Ms. Scott, whom colleagues have described as sharply attuned to the sensibilities of the Fox audience, as being well aware that Mr. Trump’s claims were baseless. And when another Murdoch-owned property, The New York Post, published an editorial urging Mr. Trump to stop complaining that he had been cheated, Ms. Scott distributed it widely among her staff. Mr. Murdoch then thanked her for doing so, the brief says.

The filing, in state court in Delaware, contains the most vivid and detailed picture yet of what went on behind the scenes at Fox News and its corporate parent in the days and weeks after the 2020 election, when the conservative cable network’s coverage took an abrupt turn.

Fox News stunned the Trump campaign on election night by becoming the first news outlet to declare Joseph R. Biden Jr. the winner of Arizona — effectively projecting that he would become the next president. Then, as Fox’s ratings fell sharply after the election and the president refused to concede, many of the network’s most popular hosts and shows began promoting outlandish claims of a far-reaching voter fraud conspiracy involving Dominion machines to deny Mr. Trump a second term.

New York Times, Guest Essay: It’s Time to Prepare for a Possible Trump Indictment, Norman L. Eisen, E. Danya Perry and Amy Lee Copeland, Feb. 17, 2023. Mr. Eisen, right, is a co-author of “Fulton County, Georgia’s Trump Investigation,” a Brookings Institution report on the Fulton County district attorney’s investigation. Ms. Perry is an author of “Trump on Trial,” a Brookings Institution report on the Jan. 6 committee. Ms. Copeland is a criminal defense and appellate attorney in Savannah, Ga.

“We find by unanimous vote that no widespread fraud took place in the Georgia 2020 presidential election that could result in overturning that election.” With those words, a Fulton County special grand jury’s report, part of which was released Thursday, repudiated Donald Trump’s assault on our democracy.

The excerpts from the report did not explicitly offer new detail on a potential indictment of Mr. Trump or any other individual. But they suggest that, combined with everything else we know, Mr. Trump may very well be headed for charges in Georgia.

We need to prepare for a first in our 246-year history as a nation: The possible criminal prosecution of a former president.

If Mr. Trump is charged, it will be difficult and at times even perilous for American democracy — but it is necessary to deter him and others from future attempted coups.

Fani Willis, left, the Fulton County district attorney, may present the case as a simple and streamlined one or in a more sweeping fashion. Success is more likely assured in the simpler approach, but the fact that the redacted report has eight sections suggests a broader approach is conceivable. In either event, we must all prepare ourselves for what could be years of drama, with the pretrial, trial and appeal likely dominating the coming election season.

Ms. Willis opened her investigation shortly after Mr. Trump’s Jan. 2, 2021, demand that the Georgia secretary of state, Brad Raffensperger, “find 11,780 votes.” The second impeachment of Mr. Trump and the Jan. 6 committee hearings developed additional evidence about that request for fake votes and Mr. Trump and allies pushing fake electors in Georgia and nationally. There is now abundant evidence suggesting he violated Georgia statutes, like those criminalizing the solicitation of election fraud.

The parts of the special grand jury’s report revealed on Thursday only reinforce Mr. Trump’s risk of prosecution. The statement that the grand jurors found “no widespread fraud” in the presidential election eliminates Mr. Trump’s assertion that voter fraud justified his pushing state election officials. We also know that the grand jurors voted defendant by defendant and juror by juror, and set forth their recommendations on indictments and relevant statutes over seven (currently redacted) sections. The likelihood that they did that and cleared everyone is very low. And the fact that the grand jurors felt so strongly about the issues that they insisted on writing the recommendations themselves, as they emphasize, further suggests a grave purpose.

Also notable is the grand jury’s recommendation of indictments, “where the evidence is compelling,” for perjury that may have been committed by one or more witnesses. It seems unlikely that Ms. Willis will let that pass.

She will now decide the next steps of the case. Her statement that charging decisions were imminent came more than three weeks ago. If she does indict Mr. Trump, the two likely paths that she might take focus on the fake electoral slates and Mr. Trump’s call to Mr. Raffensperger. One is a narrower case that would likely take weeks to try; the other is a broader case that would likely take months.

Narrow charges could include the Georgia felonies of solicitation of election fraud in the first degree and related general crimes like conspiracy to commit election fraud, specifically focusing on events and people who have a strong nexus with Georgia. In addition to Mr. Trump, that might include others who had direct contacts with Georgia, like his former chief of staff Mark Meadows and his attorneys John C. Eastman and Rudolph W. Giuliani (who already received a “target” notification from Ms. Willis warning him that he may be charged). Such a case would focus on activities around the execution of the fake electoral slates on Dec. 14, 2020, followed by the conversation with Mr. Raffensperger on Jan. 2, rooting it in Georgia and avoiding events nationally except to the extent absolutely necessary.

Or Ms. Willis could charge the case more broadly, adding sweeping state Racketeer Influenced and Corrupt Organizations, or RICO, charges that could still include the impact of the conduct in Georgia but bring in more of a nationwide conspiracy. This would look more like the Jan. 6 investigation, albeit with a strong Georgia flavor. It could additionally include those who appeared to have lesser contact with Georgia but were part of national efforts including the state, like the Trump campaign attorney Kenneth Chesebro and the Justice Department official Jeffrey Clark.

A more narrow case might make slightly more sense: Given the extraordinary circumstances around it, Ms. Willis will surely have her hands full. And it will feature a likely lead defendant who has demonstrated his propensity for legal circuses — coming in the midst of a heated political season no less.

That said, Ms. Willis has a proven propensity for bringing and winning RICO cases. And as we have learned in our criminal trial work, sometimes juries are more responsive to grander narratives that command their attention — and outrage.

Whether it’s simple or broad, if a case is opened, one thing is nearly certain: It’s going to take a while, probably the better part of the next two years, and perhaps longer. We would surely see a flurry of legal filings from Mr. Trump, which while often meritless nevertheless take time. Here the battle would likely be waged around pretrial motions and appeals by Mr. Trump arguing, as he has done in other cases, that he was acting in his official presidential capacity and so is immune.

That challenge, though not persuasive at all in our view, will almost certainly delay a trial by months. Other likely sallies are that the case should be removed to federal court (it shouldn’t); that he relied on the advice of counsel in good faith (he didn’t); or that his action was protected by the First Amendment (it wasn’t).

Even if the courts work at the relatively rapid pace of other high-profile presidential cases, we would still be talking about months of delay. In both U.S. v. Nixon and Thompson v. Trump, about three months were consumed from the first filing of the cases to the final rejection of presidential arguments by the U.S. Supreme Court. In this case, there would be more issues, which would be likely to require additional time. At the earliest, Ms. Willis would be looking at a trial toward the end of 2023. Even on that aggressive schedule, appeals would not be concluded until the end of 2024 or beyond.

Needless to say, this would have a profound impact on the election season. It would feature a national conversation about what it means for a former president to be prosecuted, and it would no doubt have unexpected consequences.

Still, the debate is worth having, and the risks are worth taking. The core American idea is that no one is above the law. If there is serious evidence of crimes, then a former president should face the same consequences as anyone else. If we do not hold accountable those who engage in this kind of misconduct, it will recur.

It would be the trial of the 21st century, no doubt a long and bumpy ride — but a necessary one for American democracy.

Norman Eisen was special counsel to the House Judiciary Committee during the first impeachment of Donald Trump. E. Danya Perry is a former federal prosecutor and New York State corruption investigator. Amy Lee Copeland, a former federal prosecutor, is a criminal defense and appellate attorney in Savannah, Ga.

Disgraced InfoWars host Alex Jones, in a dark shirt second from the right, stands next to "Stop the Steal" pro-Trump insurrectionist Ali Alexander at a rally.

Washington Post, Alex Jones is ‘holding firearms’ for Jan. 6 rioters, bankruptcy docs show, Timothy Bella, Feb. 17, 2023 (print ed.). As Infowars founder Alex Jones is facing bankruptcy for damages he owes to the families of victims of the mass killing at Sandy Hook Elementary School, a new filing shows the right-wing conspiracy theorist has been “holding firearms” for those who participated in the insurrection at the U.S. Capitol on Jan. 6, 2021.

Jones, who owes nearly $1.5 billion to the families after years of saying the 2012 massacre in Newtown, Conn., in which 20 children and six adults were killed, was a hoax, filed for Chapter 11 bankruptcy in the Southern District of Texas last December. Jones’s personal financial disclosures were shared in a bankruptcy filing on Tuesday that was obtained by The Washington Post.

In the section of the bankruptcy statement that asks Jones to identify property he owns or controls for somebody else, the right-wing conspiracy theorist described the items he has in limited detail.

“Holding firearms for certain January 6th participants to be provided,” the entry says.

The filing does not state why Jones, who participated in the Stop the Steal rally that preceded the attack on the Capitol, is holding the weapons for the rioters or where they are located.

Alex Jones bankruptcy filing

In addition to the firearms, Jones, 49, lists boats and lifetime helicopter access as part of his personal financial disclosures, records show. Jones reported his gross income in 2021, the most recent year that data is available, as $617,143.02, according to the filing. He reported a gross income of nearly $639,000 in 2020, the filing shows.

The filing says that Jones has reported assets worth an estimated $10 million — significantly less than the $1.4 billion in a Connecticut case and $45.2 million in a Texas case that he owes to the Sandy Hook families in damages. Jones and his legal team have said they would appeal.

Feb. 10

Washington Post, Supreme Court justices discussed, but did not agree on code of conduct, Robert Barnes and Ann E. Marimow, Feb. 10, 2023 (print ed.). The Supreme Court has failed to reach consensus on an ethics code of conduct specific to the nine justices despite internal discussion dating back at least four years, according to people familiar with the matter.

It remains an active topic at the court, these people said, and the court’s legal counsel Ethan Torrey prepared a working document of issues for them to consider. There is no timeline for the justices to act, however. Those familiar with the matter spoke on the condition of anonymity to discuss the situation.

The inertia has frustrated critics, whose demands for reform have intensified. The court’s profile has only increased as a new majority has moved rapidly on a range of polarizing issues. That has also increased scrutiny on the justices, the activities of their spouses and when the court’s members should recuse themselves from cases.

Justice Clarence Thomas, whose wife Virginia “Ginni” Thomas took an active role in challenging the outcome of the 2020 presidential election while her husband considered cases on the subject, has become a particular focus.

This week, leaders of the American Bar Association joined those urging action, saying that “the absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court.” The call was not motivated by “any particular conduct by any one or more current or former members of the Court,” the group said.

“This is a break-the-glass moment on Supreme Court ethics,” said Gabe Roth of the group Fix the Court, which has long advocated for greater accountability and transparency at the court. “I don’t think an ethics code is a panacea, but I think there is a perception that the justices are not taking their ethical responsibilities seriously enough.”

Although the justices say they voluntarily comply with the same ethical guidelines that apply to other federal judges, the lack of an ethics code has become a prominent complaint on Capitol Hill, where in 2019 Justice Elena Kagan told a congressional committee that Chief Justice John G. Roberts Jr. was “seriously” studying the issue. But a discussion among the justices failed to produce agreement, people familiar with the matter said.

Rep. Hank Johnson (D-Ga.), who sponsored legislation to create a code of conduct for the court, said Americans are becoming impatient. “I do not understand why there has not been a conclusion reached on this so-called study,” Johnson said. “It just seems like it has been quietly dropped, hoping the public will turn its attention to other matters and never come back to this issue.”

Feb. 6

New York Times, Guest Essay: Don’t Let Republican ‘Judge Shoppers’ Thwart the Will of Voters, Stephen I. Vladeck, Feb. 6, 2023 (print ed.).  Mr. Vladeck, right, a professor at the University of Texas School of Law, writes frequently about the federal courts and constitutional law.

For the 26th time in two years, the Texas attorney general Ken Paxton recently filed a lawsuit in federal court challenging a Biden administration policy. The suit, which seeks to wipe out a new Labor Department rule about the investment of pension trust assets, wasn’t filed in Austin, the state capital, or in Dallas, where the Labor Department’s regional offices are, or anywhere else with a logical connection to the dispute.

It was filed in Amarillo. Why Amarillo? By filing there, Mr. Paxton,left, had a 100 percent chance of having the case assigned to Judge Matthew Kacsmaryk — appointed to the bench by President Donald Trump in 2019 and a former deputy general counsel to the First Liberty Institute, which frequently litigates religious liberty cases before the Supreme Court.

“Forum shopping” has long been a problem in civil litigation. Clever lawyers use procedural rules to file in courts deemed most likely to be sympathetic to their claims. But what Mr. Paxton and other plaintiffs are doing is something far more nefarious — they’re engaging in a novel and specific form of “judge shopping,” seeking out the specific judge whom they wish to hear their case, presumably because of how they expect that judge to rule.

By taking advantage of a loophole in federal procedure, these plaintiffs are able to rely on a small handful of district judges appointed by Mr. Trump to thwart major features of President Biden’s agenda. The tactic upends the tradition of random assignment of judges and raises serious questions about the fairness and impartiality of the judicial system. And it can — and should — be easily fixed, whether by the courts themselves or, failing that, by Congress.

These cases (and others brought by private plaintiffs in Texas’s small divisions) have put a hard stop on several ambitious Biden administration initiatives, among them ones related to abortion and immigration. They include at least five administration policies on immigration as well as the student loan debt relief program, the Department of Health and Human Services’ post-Dobbs abortion guidance, and federal Covid vaccination mandates.

More requests for such relief are pending. In November, the Alliance Defending Freedom filed a lawsuit in Amarillo that seeks to revoke the Food and Drug Administration’s approval of mifepristone, one of the drugs used during a medication abortion, which could make it unavailable nationwide.

Here’s how the loophole works: For decades, Congress has split up many of the 94 federal district courts into smaller “divisions” and has left it to each district court to decide how to divvy up cases among its divisions. Texas’s federal courts, in turn, have distributed their judges unevenly. Of the 27 divisions in Texas’s four district courts, nine have a single judge; 10 others have only two.

Although other states require judges to move around from time to time to avoid judge-shopping, Texas doesn’t. Thus, any new suit filed in Amarillo is sure to go to Judge Kacsmaryk, any new suit filed in Wichita Falls goes to Judge Reed O’Connor and any new suit filed in Victoria goes to Judge Drew Tipton.

The ability of litigants to handpick judges is strengthened by the increasing polarization of the judges sitting on district court benches. It’s increasingly possible to pick a judge who may be an ideological outlier among his peers. If anti-abortion groups can funnel all nationwide litigation challenging federal policies to Judge Kacsmaryk, and if anti-immigration groups can funnel all nationwide litigation challenging federal policies to Judge Tipton, that turns foundational principles about the structure of the legal system on their head.

Federal law used to require plaintiffs to show why a specific division was a proper place for their suit, but Congress eliminated that requirement in 1988. Today, a plaintiff merely has to show that the broader district is an appropriate venue — which is relatively easy to do when the federal government, with a jurisdiction of the entire country, is the defendant.

Litigants of all political and substantive stripes have taken advantage of this loophole — including big corporations like Purdue Pharma, which filed its bankruptcy in the White Plains Division of the Southern District of New York, which has a single eligible judge, rather than in Manhattan, where it would have faced a random draw among more than a half-dozen judges with more diverse reputations.

But Mr. Paxton has made the loophole into an art form. Of the 26 anti-Biden suits he has filed to date, he’s filed seven each in Amarillo and Victoria.

So far, blue state officials have barely ever gone judge-shopping. While they have picked friendly district courts, like those in San Francisco or Honolulu, they were still subject to random assignment of judges within those courts.

In his 2021 year-end report on the federal courts, Chief Justice John Roberts alluded to an instance in which judge shopping had caused trouble: The district judge assigned to hear all cases filed in Waco, Texas, had lured patent cases from across the country into his court by touting favorable procedural and logistical arrangements. In that case, when the criticism was not about a Republican state challenging a Democratic president’s policies, there was general agreement that this kind of procedural manipulation was inappropriate, leading the chief judge of the Western District of Texas to change the case assignment rules. Today, any new patent case filed in the Waco Division is randomly assigned among 12 judges in the broader district.

But if judge shopping is a problem in the patent context, it’s a problem outside of it as well. And the fixes are both easy and obvious. District courts can, as Texas’s Western District just did, change their rules of judge distribution on their own — without any national legislation. District courts can also agree to transfer cases out of their single-judge divisions to avoid the appearance of procedural manipulation, which the Biden administration has asked Judge Tipton to do for the most recent immigration challenge filed by Texas in Victoria.

Failing that, Congress can require district courts, when dividing their business, to ensure that no case has a greater than 50 percent chance of being assigned to a single judge. Congress can also require that suits seeking nationwide relief against a federal policy be heard by three district judges, not one, to avoid (or at least to mitigate) the judge shopping that has become so prevalent.

Whatever the solution, doing nothing will simply accelerate what is already a race to the bottom — in which handpicked, outlier district judges for whom nobody voted are increasingly able to dictate federal policies on a nationwide basis.

Right now, this practice may be beneficial for Republicans. But if nothing changes, you can be sure Democrats will try to take advantage when the next Republican sits in the White House. And regardless of who benefits in the short term, in the long term, the proliferation of this practice will be disastrous for the rule of law.

Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, is a co-host of “The National Security Law Podcast” and the author of the forthcoming The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.

Feb. 3

Julia (Julie) Jenkins Fancelli, Publix heiress and Donald Trump mega-donor.

Proof, Exclusive Investigative Commentary: The Donald Trump “Mega-Donor” From Florida Who Funded January 6 Has Just Given America the Most Detailed Timeline Ever of When and Where Trump’s Coup Plot Formed, Seth Abramson, Feb. 3, 2023. Seth Abramson, left, is a a former criminal investigator and criminal defense attorney whose January 6 research Congress often cites unpacks January 6 evidence many missed.

Part of a Series: The “January 6 Files” Series (2023-)

• Charlie Kirk
• Ginni Thomas, Part I
• Julie Jenkins Fancelli (current entry)

1. Introduction

You’ve probably seen the “How It Started vs. How It’s Going” meme, which tracks the relative sanguinity of the beginning of a given process and how it thereafter descends into chaos. In the case of the 132-page federal testimony of Julie Jenkins Fancelli—the Donald Trump mega-donor who almost single-handedly bankrolled the January 6 White House Ellipse rally and march on the U.S. Capitol—it begins like this (the speaker is a House January 6 Committee investigator tasked with examining Fancelli under oath):

And it does not get better from there.

Fancelli’s reticence in providing even the barest degree of cooperation with the House January 6 Committee is to some degree understandable. After all, even far-right media reports indicate that the Special Counsel recently appointed by Joe Biden’s Attorney General Merrick Garland on behalf of the Department of Justice, Jack Smith, is focusing his investigation on the “money trail” linked to the January 6 coup attempt.

Justice Department Special Prosecutor Jack Smith, left, and former President Donald Trump, shown in a collage via CNN.

And on the very short list of radical Trumpists who funded events on January 6, the Trumpworld figure who appears atop the list—by sheer dollar value—is Ms. Fancelli.

And so it is that we see Fancelli invoking four different federal constitutional amendments to avoid even revealing whether she knows Caroline Wren, an agent of future Trump daughter-in-law and current top Trump adviser Kimberly Guilfoyle, right (who will be marrying Trump’s eldest son Donald Trump Jr.) and someone whose long relationship with Fancelli has already been documented fifty different ways and is a settled fact.

But as was the case with (again) Trump Jr. and Guilfoyle associate—you may be seeing a trend here—Charlie Kirk, who also pleaded the Fifth Amendment, Fancelli revealed much more than she might have intended simply by showing up to be questioned by Congress. Why? Because the many, many questions asked of her by lawyers from the now-disbanded House January 6 Committee comprise a stunning compendium of evidence compiled by the Committee before its investigation ended in December 2022.

This third entry of the new “January 6 Files” series at Proof will reveal, through a long analysis and contextualization of these questions—and perhaps more surprisingly, some sudden abandonments of her constitutional invocations by Ms. Fancelli—how this recently released federal witness transcript must change forever how we think about the following:

• The timeline of the January 6 coup plot;
• the level of involvement the Trump family had in this coup plotting, and its after-the-fact attempts to deny that involvement;
• the consistent pattern of federal Witness Tampering that has marked Trump family attempts to deny its involvement in any coup plotting or fundraising;
• the extent to which the Trump family benefited financially from this plotting and to which Trump himself was aware of the fundraising and logistics work that the plotting entailed; and
• the degree to which this plotting may have helped fund Stop the Steal activities now associated with domestic terrorism.

Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who later taught digital journalism, legal 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 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, Opinion: Ye old Supreme Court? Your originalism is making America unsafe, Ruth Marcus, right, Feb. 4, 2023.  When the Supreme Court ruled in 2008 that the Second Amendment protects individuals’ right to gun ownership, it emphasized the ability “of law-abiding, responsible citizens to use arms in defense of hearth and home.”

When it expanded that decision last year in New York State Rifle & Pistol Association v. Bruen, the court noted that “ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.”

Zackey Rahimi was, one presumes, not the kind of upstanding citizen the justices had in mind.

Over a six-week stretch from December 2020 to January 2021, Rahimi took part in five shootings around Arlington, Tex. He fired an AR-15 into the home of a man to whom he had sold Percocet. The next day, after a car accident, he pulled out a handgun, shot at the other driver and sped off — only to return, fire a different gun and flee again. Rahimi shot at a police car. When a friend’s credit card was declined at a fast-food restaurant, he fired several rounds into the air.

Or, as the U.S. Court of Appeals for the Fifth Circuit put it in vacating Rahimi’s conviction for illegal gun possession, “Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal.”

This is the insane state of Second Amendment law in the chaotic aftermath of Bruen. The problem isn’t that decision’s precise outcome, striking down New York state’s gun licensing law because it required a showing of “special need for self-protection” to obtain a concealed carry permit.

The problem is that in doing so, the six-justice conservative majority imposed a history-based test — a straitjacket, really — for assessing the constitutionality of gun laws. No longer can judges decide whether restrictions are a reasonable means to protect public safety.

Washington Post, GOP Rep. Clyde hands out assault-rifle lapel pins to House colleagues, Amy B Wang and John Wagner, Feb. 4, 2023 (print ed.). By his own acknowledgment, Rep. Andrew S. Clyde (R-Ga.) has been handing out lapel pins shaped like assault rifles to fellow GOP lawmakers — an exercise that comes in the wake of a spate of mass shootings and during a week intended to honor survivors of gun violence.

Late Thursday, Clyde, who owns a gun store, tweeted a video about his efforts.

“I hear that this little pin that I’ve been giving out on the House floor has been triggering some of my Democratic colleagues,” he said in the video. “Well, I give it out to remind people of the Second Amendment of the Constitution and how important it is in preserving our liberties.”

Clyde closed by sharing that there are plenty of pins available for those who want to come by his office.

The assault-rifle pins have angered Democrats, who began noticing them in recent days before they knew of their origin. On Wednesday, Rep. Jimmy Gomez (D-Calif.) posted images of two GOP members of Congress — Reps. Anna Paulina Luna (Fla.) and George Santos (N.Y.) — sporting the assault-rifle pins on their lapels.

Washington Post, Editorial: Remember D.C. Metro hero Robert Cunningham’s name, Editorial Board, Feb. 4, 2023. D.C. Metro mechanic Robert Cunningham — known as “Bob” or “Ham” to friends and co-workers — died heroically this week, giving his life to prevent what could have been another mass shooting.

As Wednesday’s morning commute was wrapping up, an active shooter exited a bus, ran down the escalator into the Potomac Avenue Metro station in Southeast Washington and started threatening passengers. When the shooter approached a woman, Mr. Cunningham intervened. He was a mechanic, not a police officer, but he acted to save an innocent person — and to help the transit community he proudly served for more than 20 years. He almost certainly saved lives by slowing down the shooter, giving others a chance to tackle the gunman before police arrived.

January 2003

Jan. 31

New York Times, Investigation: At the Supreme Court, Ethics Questions Over a Spouse’s Business Ties, Steve Eder, Jan. 31, 2023. Chief Justice John Roberts’s wife recruits lawyers to top firms, some with business before the court. But her ties have raised ethics questions.

After Chief Justice John G. Roberts Jr. joined the Supreme Court, his wife, Jane Sullivan Roberts, gave up her career as a law firm partner to become a high-end legal recruiter in an effort to alleviate potential conflicts of interest. Mrs. Roberts later recalled in an interview that her husband’s job made it “awkward to be practicing law in the firm.”

Now, a former colleague of Mrs. Roberts has raised concerns that her recruiting work poses potential ethics issues for the chief justice. Seeking an inquiry, the ex-colleague has provided records to the Justice Department and Congress indicating Mrs. Roberts has been paid millions of dollars in commissions for placing lawyers at firms — some of which have business before the Supreme Court, according to a letter obtained by The New York Times.

In his letter last month, Kendal Price, a 66-year-old Boston lawyer, argued that the justices should be required to disclose more information about their spouses’ work. He did not cite specific Supreme Court decisions, but said he was worried that a financial relationship with law firms arguing before the court could affect justices’ impartiality or at least give the appearance of doing so.

“I do believe that litigants in U.S. courts, and especially the Supreme Court, deserve to know if their judges’ households are receiving six-figure payments from the law firms,” Mr. Price wrote.

In a statement, a spokeswoman for the Supreme Court, Patricia McCabe, said that all the justices were “attentive to ethical constraints” and complied with financial disclosure laws. The chief justice and his wife had also consulted the code of conduct for federal judges, Ms. McCabe said, including a 2009 advisory opinion that a judge “need not recuse merely because” his or her spouse had worked as a recruiter for a law firm with issues before the court.

Mrs. Roberts previously said that she handled conflicts on a case-by-case basis, avoiding matters with any connection to her husband’s job and refraining from working with lawyers who had active Supreme Court cases.

Senator Richard J. Durbin, Democrat of Illinois and chairman of the Judiciary Committee, did not address how the committee would respond to Mr. Price, but said in a statement that his letter raised “troubling issues that once again demonstrate the need” for ethics reforms to “begin the process of restoring faith in the Supreme Court.”

Public confidence in the court recently fell to a historic low, polls showed, and Democrats in Congress have called for greater transparency, including stronger disclosure and recusal standards. The Justice Department declined to comment.

Mr. Price and Mrs. Roberts both had worked as legal recruiters for Major, Lindsey & Africa, a global firm based in Maryland. According to the letter, Mr. Price was fired in 2013 and sued the firm, as well as Mrs. Roberts and another executive, over his dismissal.

He lost the case, but the litigation produced documents that he sent to Congress and the Justice Department, including spreadsheets showing commissions attributed to Mrs. Roberts early in her headhunting career, from 2007 to 2014. Mrs. Roberts, according to a 2015 deposition in the case, said that a significant portion of her practice was devoted to helping senior government lawyers land jobs at law firms and that the candidates’ names were almost never disclosed.

“I keep my placements confidential,” she said in the deposition.

Mrs. Roberts, now the managing partner of the Washington office of Macrae Inc., had spent two decades at the law firm Pillsbury Winthrop Shaw Pittman, where she became a partner in the global technology group and also focused on talent development. In 2007, she changed careers and soon ascended the ranks of her new industry. Partners at leading law firms in Washington on average make well over $1 million a year, and at the high end, they can be paid over $7 million. Recruiting firms take a large cut from those placements, often equivalent to a quarter of the new hires’ first-year salaries.

The spreadsheets list six-figure fees credited to Mrs. Roberts for placing partners at law firms — including $690,000 in 2012 for one such match. The documents do not name clients, but Mr. Price recalled her recruitment of one prominent candidate, Ken Salazar, then interior secretary under President Barack Obama, to WilmerHale, a global firm that boasts of arguing more than 125 times before the Supreme Court.

Jan. 30

New York Times, Manhattan Prosecutors Will Begin Presenting Trump Case to Grand Jury, William K. Rashbaum, Ben Protess and Jonah E. Bromwich, Jan. 30, 2023. The decision potentially sets the case, tied to Donald Trump’s role in paying hush money to a porn star in 2016, on a path toward criminal charges.

The Manhattan district attorney’s office on Monday will begin presenting evidence to a grand jury about Donald J. Trump’s role in paying hush money to a porn star during his 2016 presidential campaign, laying the groundwork for potential criminal charges against the former president in the coming months, according to people with knowledge of the matter.

The grand jury was recently impaneled, and witness testimony will soon begin, a clear signal that the district attorney, Alvin L. Bragg, is nearing a decision about whether to charge Mr. Trump.

On Monday, one of the witnesses was seen with his lawyer entering the building in Lower Manhattan where the grand jury is sitting. The witness, David Pecker, left, is the former publisher of The National Enquirer, the tabloid that helped broker the deal with the porn star, Stormy Daniels, right.

As prosecutors prepare to reconstruct the events surrounding the payment for grand jurors, they have sought to interview several witnesses, including the tabloid’s former editor, Dylan Howard, and two employees at Mr. Trump’s company, the people said. Mr. Howard and the Trump Organization employees, Jeffrey McConney and Deborah Tarasoff, have not yet testified before the grand jury.

The prosecutors have also begun contacting officials from Mr. Trump’s 2016 campaign, one of the people said. And in a sign that they want to corroborate these witness accounts, the prosecutors recently subpoenaed phone records and other documents that might shed light on the episode.

A conviction is not a sure thing, in part because a case could hinge on showing that Mr. Trump and his company falsified records to hide the payout from voters days before the 2016 election, a low-level felony charge that would be based on a largely untested legal theory. The case would also rely on the testimony of Michael D. Cohen, left, Mr. Trump’s former fixer who made the payment and who himself pleaded guilty to federal charges related to the hush money in 2018.

Still, the developments compound Mr. Trump’s mounting legal woes as he faces an array of law enforcement investigations: A district attorney in Georgia could seek to indict him for his efforts to overturn his 2020 election loss in the state, and he faces a special counsel investigation into his removal of sensitive documents from the White House.

Mr. Bragg’s decision to impanel a grand jury focused on the hush money — supercharging the longest-running criminal investigation into Mr. Trump — represents a dramatic escalation in an inquiry that once appeared to have reached a dead end.

Under Mr. Bragg’s predecessor, Cyrus R. Vance Jr., the district attorney’s office had begun presenting evidence to an earlier grand jury about a case focused not just on the hush money but on Mr. Trump’s broader business practices, including whether he fraudulently inflated the value of his real estate to secure favorable loans and other financial benefits. Yet in the early weeks of his tenure last year, Mr. Bragg developed concerns about the strength of that case and decided to abandon the grand jury presentation, prompting the resignations of the two senior prosecutors leading the investigation.

One of them, Mark F. Pomerantz, was highly critical of Mr. Bragg’s decision and has written a book that is scheduled to be published next week, “People vs. Donald Trump,” detailing his account of the inquiry. Mr. Bragg’s office recently wrote to Mr. Pomerantz’s publisher, Simon & Schuster, expressing concern that the book might disclose grand jury information or interfere with the investigation.

For his part, Mr. Trump has denied all wrongdoing and chalked up the scrutiny — as he has many times before — to a partisan witch hunt against him. If he were ultimately convicted, Mr. Trump would face a maximum sentence of four years, though prison time would not be mandatory.

A spokeswoman for Mr. Bragg’s office declined to comment. Mr. Pecker’s lawyer, Elkan Abramowitz did not immediately respond to a request for comment. A lawyer for Mr. Trump, Ronald P. Fischetti, declined to comment, as did a lawyer for Mr. McConney and Ms. Tarasoff.

The panel hearing evidence about the hush money is likely what’s known as a special grand jury. Like regular grand juries, it is made up of 23 Manhattan residents chosen at random. But its members are sworn in to serve for six months to hear complex cases, rather than the routine 30-day panels that review evidence and vote on whether to bring charges in cases of burglary, assault, robbery, murder and other crimes.

Justice Department Special Prosecutor Jack Smith, left, and former President Donald Trump, shown in a collage via CNN.

Palmer Report, Analysis: Donald Trump is now in the process of being criminally indicted by grand juries in three different jurisdictions, Bill Palmer, right, Jan. 30, 2023.  When Manhattan District Attorney Alvin Bragg decided last year not to criminally indict Donald Trump for his Trump Organization financial fraud, it seemed obvious that Bragg was simply trying to avoid being the first to indict Trump, and that he’d eventually indict him on something. After all, Bragg would have zero chance of reelection in Manhattan if he doesn’t end up indicting Trump.

Last week Fulton County District Attorney Fani Willis told the court that indictment decisions in her criminal probe against Donald Trump were “imminent.” Now that Willis is seemingly just days away from indicting Trump, it’s perhaps not a surprise that Alvin Bragg is now also in the process of indicting Trump.

Bragg is presenting evidence of Donald Trump’s campaign finance fraud to a grand jury, per the New York Times. Specifically, Trump is being criminally targeted for illegally using campaign money as part of his payoff scheme to keep Stormy Daniels quiet. This is the same Trump criminal plot which previously sent Michael Cohen to prison. So all that Bragg really has to do is show that Cohen was acting upon Trump’s instruction.

Michael Cohen responded to today’s news by retweeting a reminder that he met with the Manhattan DA’s office just two weeks ago. Cohen also retweeted a reporter who stated that campaign finance charges could be the “most dangerous criminal case” against Trump, in terms of landing a conviction.

The public will understandably be wary of Alvin Bragg until he actually indicts Trump, given how badly Bragg has dragged his feet up to this point. But there would be no reason for Bragg to go to the effort of presenting a criminal case against Trump to a grand jury, and leaking to the media that he’s doing so, unless he’s already decided to go through with indicting Trump. Bragg was seemingly just waiting until word came down that the Fulton County DA is now just days away from indicting Trump, meaning Bragg will get to indict Trump second (or third) instead of first.

This all comes after Bloomberg reported roughly two weeks ago that DOJ Special Counsel Jack Smith was just weeks away from critical indictment decisions in his own criminal case against Donald Trump. This means Trump is now on track to be indicted by three different sets of prosecutors, each of which will put him on criminal trial. It’s been tricky to predict the timing, but this was always coming. And now we’re here.

U.S. Justice Failures, Scandals

New York Times, Opinion: Bill Barr’s Image Rehab Is Kaput, David Firestone, Jan. 30, 2023. Mr. Firestone is a member of the editorial board.

Former Attorney General William Barr has spent the last year in a desperate salvage operation for what’s left of his legal and ethical reputation.

During his 22 months in office, he allowed his Justice Department to become a personal protection racket for his boss, Donald Trump, and left prosecutors, the F.B.I. and other law enforcement officials subject to the worst impulses of the president. But then, in his 2022 memoir, Mr. Barr did an about-face, bashing Mr. Trump for lacking a presidential temperament and singling out his “self-indulgence and lack of self-control.”

In the book, he urged Republicans not to renominate Mr. Trump in 2024, accusing the former president of going “off the rails” with his stolen-election claims by preferring the counsel of “sycophants” and “whack jobs” to that of his real advisers. Clearly concerned that history was paying attention, he was even stronger in his videotaped testimony to the Jan. 6 committee, loosing a variety of barnyard epithets and bitter insults to describe Mr. Trump’s legal strategy. He said the president had become “detached from reality” and was doing a disservice to the nation.

The hollow and self-serving nature of this turnabout was always apparent. Mr. Barr never made these concerns public at a time when his dissent would have made a difference. Instead, he left office in 2020 showering compliments on his boss, praising Mr. Trump’s “unprecedented achievements” and promising that Justice would continue to pursue claims of voter fraud that he must have known were baseless.

But if Mr. Barr harbored any fantasy that he might yet be credited with a wisp of personal integrity for standing up for democracy, that hope was thoroughly demolished on Thursday when The Times published the details of what really happened when Mr. Barr launched a counter-investigation into the origins of Robert Mueller’s report on the 2016 Trump campaign’s ties to Russia. The reporting demonstrated a staggering abuse of the special counsel system and the attorney general’s office, all in a failed attempt by Mr. Barr to rewrite the sour truths of Mr. Trump’s history.

It was bad enough when, in March 2019, Mr. Barr tried to mislead the public into thinking the forthcoming Mueller report exonerated Mr. Trump, when in fact the report later showed just how strong the links were between the campaign and the Russian government, which worked to help defeat Hillary Clinton. A few months later Mr. Barr assigned John Durham, right, a federal prosecutor in Connecticut, as a special counsel to investigate Mr. Mueller’s investigation, hoping to prove Mr. Trump’s wild public allegations that the federal intelligence officials had helped instigate the claims of Russian interference to damage him.

Attorneys general are not supposed to interfere in a special counsel’s investigation. The whole point of the system is to isolate the prosecution of sensitive cases from the appearance of political meddling. But the new Times reporting shows that Mr. Barr did the opposite, regularly meeting with Mr. Durham to discuss his progress and advocating on his behalf with intelligence officials when they were unable to come up with the nonexistent proof Mr. Barr wanted to see. (Aides told Times reporters that Mr. Barr was certain from the beginning that U.S. spy agencies were behind the allegations of collusion.)

When the Justice Department’s own inspector general prepared to issue a report saying that, while the F.B.I. made some ethical mistakes, the investigation was legitimate and not politically motivated, Mr. Durham lobbied him to drop the finding. When that effort was unsuccessful, Mr. Barr reverted to his usual pattern of trying to spin the report before it was issued, disagreeing with its finding before it was even out. Mr. Durham then followed up with a similar statement, shattering the clear department principle of staying silent about a current investigation.

The two men even traveled to Britain and Italy together, pressuring government agencies there to disclose what they told U.S. spy agencies about the Trump-Russia connections. That infuriated officials of those governments, who said they had done nothing of the kind, and no evidence was ever found that they had. But on one of those trips, The Times reported, Italian officials gave the men a tip which, people familiar with the matter said, linked Mr. Trump to possible serious financial crimes. (It is not clear what those crimes were, and more reporting will be necessary to reveal the details.) Did Mr. Barr follow protocol and turn the tip over to regular prosecutors in his department for investigation? No. Instead, he gave it to his traveling companion, Mr. Durham, who opened a criminal investigation but never made it public and never filed charges, and when word began to trickle out that a suspected crime had been discovered, he falsely let the world think it had something to do with his original goal.

The Durham investigation, of course, has never presented any evidence that the F.B.I. or intelligence agencies committed any misconduct in the course of the Russia investigation, bitterly disappointing Mr. Barr and especially his patron, Mr. Trump, who had assured his supporters for months that it would produce something big. Desperate for some kind of success, Mr. Durham indicted Michael Sussmann, a lawyer who had worked for Democrats in their dealings with the F.B.I., over the objections of two prosecutors on the special counsel team who said the case was far too thin and who later left the staff.

Mr. Sussmann was acquitted last May of lying to the bureau, and the jury forewoman told reporters that bringing the case had been unwise. Mr. Barr later tried to justify the trial by saying it served another purpose in exposing the Clinton campaign’s starting the Russia narrative as a “dirty trick.” The trial did nothing of the kind, but it did expose Mr. Barr’s willingness to abuse the gratuitous prosecution of an individual to score political points against one of Mr. Trump’s most prominent enemies.

One of the other casualties of this deceitful crusade was the deliberate damage it did to the reputations of the F.B.I., the intelligence agencies and officials in Mr. Barr’s own department. All of these agencies have had many problematic episodes in their pasts, but there is no evidence in this case that they willfully tried to smear Mr. Trump and his campaign with false allegations of collusion. They were trying to do their jobs, on which the nation’s security depends, but because they got in Mr. Trump’s way, Mr. Barr aided in degrading their image through a deep-state conspiracy theory before an entire generation of Trump supporters. Republicans in the House are launching a new snipe hunt for proof that these same government offices were “weaponized” against conservatives, an expedition that is likely to be no more effective than Mr. Durham’s and Mr. Barr’s.

But weakening the country’s institutions and safeguards for political benefit is how Mr. Barr did business in the nearly two years he served as the nation’s top law enforcement official under Mr. Trump. He has a long history of making the Justice Department an instrument of his ideology and politics; when he was attorney general in 1992 during the Bush administration, the Times columnist William Safire accused him of leading a “Criminal Cover-up Division” in refusing to appoint an independent counsel to investigate whether the Bush administration had knowingly provided aid to Saddam Hussein that was used to finance the military before Iraq invaded Kuwait. Under Mr. Trump, Mr. Barr did the opposite, demanding that an unnecessary special counsel do the bidding of the White House and trying to steer the investigation to Mr. Trump’s advantage. His efforts came to naught, and so will his campaign to be remembered as a defender of the Constitution.

David Firestone is a member of the editorial board. Mr. Firestone was a reporter and editor at The Times from 1993 to 2014, including serving as a congressional correspondent and New York City Hall bureau chief, and was executive editor for digital at NBC News until 2022.

New York Times, Opinion: The Durham Fiasco Is a Warning of What’s to Come, Michelle Goldberg,right,  Jan. 30, 2023. Thank goodness Speaker Kevin McCarthy has created a House subcommittee on the weaponization of the federal government!

Last week, The New York Times reported on an outrageous example of such weaponization, the flagrant use of federal law enforcement powers to target an administration’s political enemies. I’m talking, of course, about the John Durham special counsel investigation, which was meant to root out the ostensibly corrupt origins of Robert Mueller’s Russia investigation, and quickly came to embody the sins that Donald Trump and his allies projected onto the F.B.I.

Trump’s circle insisted, falsely, that the Mueller inquiry was a hit job that employed Russian disinformation — via the Steele dossier — to frame Trump, all part of a plot cooked up by the Hillary Clinton campaign. Durham seems to have bought into this Trumpist conspiracy theory, and to help prove it, he tried to employ what appears to be Russian disinformation to go after the Clinton camp. More specifically, he used dubious Russian intelligence memos, which analysts believed were seeded with falsehoods, to try to convince a court to give him access to the emails of a former aide to George Soros, which he believed would show Clinton-related wrongdoing.

Astonishingly, The Times found that while Trump’s attorney general Bill Barr and Durham, right, were in Europe looking for evidence to discredit the Russia investigation, Italian officials gave them a “potentially explosive tip” linking Trump to “certain suspected financial crimes.” Rather than assign a new prosecutor to look into those suspected crimes, Barr folded the matter into Durham’s inquiry, giving Durham criminal prosecution powers for the first time.

Then the attorney general sat back while the media inferred that the criminal investigation must mean Durham had found evidence of malfeasance connected to Russiagate. Barr, usually shameless in his public spinning of the news, quietly let an investigation into Trump be used to cast aspersions on Trump’s perceived enemies. (The fate of that inquiry remains a mystery.)

This squalid episode is a note-perfect example of how Republican scandal-mongering operates. The right ascribes to its adversaries, whether in the Democratic Party or the putative deep state, monstrous corruption and elaborate conspiracies. Then, in the name of fighting back, it mimics the tactics it has accused its foes of using.

Look, for example, at the behavior that gave rise to Trump’s first impeachment. Trump falsely claimed that Joe Biden, as vice president, used the threat of withholding American loan guarantees to blackmail the Ukrainian government into doing his personal bidding. Hoping to get Ukraine’s president, Volodymyr Zelensky, to substantiate his lies, Trump tried to use the threat of withholding American aid to … blackmail the Ukrainian government into doing his personal bidding. The symmetry between accusations and counter-accusations, in turn, fosters a widespread cynicism about ever finding the truth.

It’s important to keep this in mind because we’re about to see a lot more of it. Now that they control the House, Republicans have prioritized investigating their political opponents. McCarthy has stacked the Oversight Committee, central to the House’s investigative apparatus, with flame-throwing fantasists, including Marjorie Taylor Greene, Paul Gosar and Lauren Boebert. Further, as Politico reported in a “field guide” to the coming Republican inquiries, McCarthy has urged Republicans to treat every committee like the Oversight Committee, meaning all investigations, all the time.

There are going to be investigations into Hunter Biden, and investigations into the origins of the pandemic. There will likely be scrutiny of the F.B.I.’s search of Mar-a-Lago and Biden’s handling of classified documents. And, as my colleague David Firestone on the editorial board put it over the weekend, “Republicans in the House are launching a new snipe hunt” for proof that the F.B.I. and other intelligence agencies were “weaponized” against conservatives.

These all promise to be congressional equivalents of the Durham inquiry. Certainly, most if not all congressional investigations are politically motivated, but there is nevertheless a difference between inquiries predicated on something real, and those, like the many investigations in the Benghazi attack, meant to troll for dirt and reify Fox News phantasms. House Democrats examined Trump’s interference with the C.D.C. during the acute stage of the pandemic. House Republicans plan to look into what the Republican congressman Jim Banks termed the military’s “dangerous” Covid vaccine mandates. There might be an equivalence in the form of these two undertakings, but not in their empirical basis.

It remains to be seen whether our political media is up for the task of making these distinctions. The coverage of Trump and Biden’s respective retention of classified documents offers little cause for optimism. Again and again, journalists and pundits have noted that, while the two cases are very different, there are seeming similarities, and those similarities are good for Trump. This is something of a self-fulfilling prophecy, since by speculating about political narratives, you help create them.

“John Durham has already won,” said the headline of a Politico article from last year, noting his success in perpetuating the right’s fevered counter-history of Russiagate. Of course he didn’t win; he would go on to lose both cases arising from his investigation as well as the honorable reputation he had before he started it. What he did manage to do, however, was spread a lot of confusion and waste a lot of time. Now the Republican House picks up where he left off.

Jan. 27

New York Times, Investigation: How Barr’s Quest to Find Flaws in the Russia Inquiry Unraveled, Charlie Savage, Adam Goldman and Katie Benner, Jan. 26, 2023. The review by John Durham, right, at one point veered into a criminal investigation related to Donald Trump himself, even as it failed to find wrongdoing in the origins of the Russia inquiry.

It became a regular litany of grievances from President Donald J. Trump and his supporters: The investigation into his 2016 campaign’s ties to Russia was a witch hunt, they maintained, that had been opened without any solid basis, went on too long and found no proof of collusion.

Egged on by Mr. Trump, Attorney General William P. Barr set out in 2019 to dig into their shared theory that the Russia investigation likely stemmed from a conspiracy by intelligence or law enforcement agencies. To lead the inquiry, Mr. Barr turned to a hard-nosed prosecutor named John H. Durham, and later granted him special counsel status to carry on after Mr. Trump left office.

But after almost four years — far longer than the Russia investigation itself — Mr. Durham’s work is coming to an end without uncovering anything like the deep state plot alleged by Mr. Trump and suspected by Mr. Barr.

Moreover, a monthslong review by The New York Times found that the main thrust of the Durham inquiry was marked by some of the very same flaws — including a strained justification for opening it and its role in fueling partisan conspiracy theories that would never be charged in court — that Trump allies claim characterized the Russia investigation.

Interviews by The Times with more than a dozen current and former officials have revealed an array of previously unreported episodes that show how the Durham inquiry became roiled by internal dissent and ethical disputes as it went unsuccessfully down one path after another even as Mr. Trump and Mr. Barr promoted a misleading narrative of its progress.

Mr. Barr and Mr. Durham never disclosed that their inquiry expanded in the fall of 2019, based on a tip from Italian officials, to include a criminal investigation into suspicious financial dealings related to Mr. Trump. The specifics of the tip and how they handled the investigation remain unclear, but Mr. Durham brought no charges over it.

Mr. Durham used Russian intelligence memos — suspected by other U.S. officials of containing disinformation — to gain access to emails of an aide to George Soros, the financier and philanthropist who is a favorite target of the American right and Russian state media. Mr. Durham used grand jury powers to keep pursuing the emails even after a judge twice rejected his request for access to them. The emails yielded no evidence that Mr. Durham has cited in any case he pursued.

There were deeper internal fractures on the Durham team than previously known. The publicly unexplained resignation in 2020 of his No. 2 and longtime aide, Nora R. Dannehy, was the culmination of a series of disputes between them over prosecutorial ethics. A year later, two more prosecutors strongly objected to plans to indict a lawyer with ties to Hillary Clinton’s 2016 campaign based on evidence they warned was too flimsy, and one left the team in protest of Mr. Durham’s decision to proceed anyway. (A jury swiftly acquitted the lawyer.)

Now, as Mr. Durham works on a final report, the interviews by The Times provide new details of how he and Mr. Barr sought to recast the scrutiny of the 2016 Trump campaign’s myriad if murky links to Russia as unjustified and itself a crime.

Wayne Madsen Report, Investigative Commentary: What did the Italians tell Barr and Durham about Donald Trump's criminal activity? Wayne Madsen, left, author of 22 books and former Navy intelligence officer and NSA analyst, Jan. 27, 2023. In the fall of 2019, Attorney General William Barr and John Durham, the Special Counsel assigned by Barr to investigate the FBI for wrongly investigating Donald Trump and his 2016 presidential campaign for ties to Russia, flew to Italy to pressure law enforcement there to fess up that they were involved with the FBI in what was falsely called by Trump the "Russia hoax."

Instead of getting the goods on the FBI -- whose top counterintelligence agent in New York at the time was in bed with Russian oligarch Oleg Deripaska --Italian law enforcement provided Barr and Durham with information that Trump was involved in a major criminal matter, including suspicious financial dealings. Barr assigned Durham, a pro-Trump shill, to investigate the matter, granting him, for the first time, criminal prosecution authority. Not only did Durham not find any evidence of a "Russia hoax" involving the Democratic Party, 2016 presidential candidate Hillary Clinton, or George Soros -- all of whom Durham had under investigation -- but the criminal matter conveyed by the Italians was never acted upon.

WMR had reported on a serious criminal matter involving the car bombing assassination of Maltese journalist  Daphne Caruana Galizia, right, on October 16, 2017 and its possible ties to Trump. Italian intelligence and law enforcement have kept a close eye on Malta ever since the 1970s, when the island country developed close ties with the Soviet Union and Libya. Although Malta is now a member of the European Union, the Carabinieri and Guardia di Finanza (Financial Guard), as well as the Agenzia Informazioni e Sicurezza Esterna (AISE) foreign intelligence service maintain a close eye on Malta, which has become a haven for offshore banking, corporate brass plates, and Russian and other foreign residents who have purchased Maltese passports and established residency in the twin island nation.

Caruana Galizia was assassinated after she had implicated Maltese Prime Minister Joseph Muscat, his wife, and top aides in a scandal partly exposed by the release of the Panama Papers. The scandal led directly from Malta to Azerbaijan and, ultimately, to the Trump Organization in New York.

Caruana Galizia was well-aware of Trump's connections to international wealth and political and financial power brokers. During the 2016 presidential campaign, she wrote on her website, "You can't get more establishment than billionaire Donald Trump, scion of an extremely wealthy WASP family. So the real problem is stupidity and malice. But then it always was."

And, as she found out a year later, you can't get more corrupt and murderous than Donald Trump. Whatever the Italians passed on to Barr and Durham about Trump, America's "Mr. Magoo" Attorney General, Merrick Garland, has a duty and an obligation to the American people to make that information public without delay.

Jan. 23

New York Times, Bathroom Bans for Transgender Youths Are Poised for Supreme Court Review, Adam Liptak, Jan. 23, 2023 (print ed.). A ruling created a split among federal appeals courts on whether schools can forbid transgender students to use restrooms matching their gender identities.

When the Supreme Court heard arguments in 2019 about the rights of gay and transgender workers, the justices seemed fixated on bathrooms. In all, five justices explored questions related to who can use which bathroom, though bathrooms did not figure in the cases before them.

“Let’s not avoid the difficult issue,” Justice Sonia Sotomayor said, posing a hypothetical one: “You have a transgender person who rightly is identifying as a woman and wants to use the women’s bathroom.” She added, “So the hard question is: How do we deal with that?”

David D. Cole, a lawyer with the American Civil Liberties Union representing a transgender woman, seemed puzzled. “That is a question, Justice Sotomayor,” he said. “It is not the question in this case.” The justice pressed on. “Once we decide the case in your favor,” she said, “then that question is inevitable.”

The court did decide the actual question before it — whether a federal civil rights law protected L.G.B.T.Q. workers from employment discrimination — in favor of the workers by a 6-to-3 vote. But the justices have not yet addressed the question Justice Sotomayor viewed as inevitable. A decision from the federal appeals court in Atlanta last month may change that.

Justice Neil M. Gorsuch’s majority opinion in 2020 in the case on workplace discrimination was a sweeping and, to many, surprising victory for transgender rights. But he took pains to say the ruling was, in one sense, narrow. “We do not purport to address bathrooms, locker rooms or anything else of the kind,” he wrote, adding that those “are questions for future cases, not these.”

The legal landscape changed on Dec. 30, when the U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled by a 7-to-4 vote that Drew Adams, a transgender boy, was not entitled to use the boys’ bathroom in a public high school in Florida. The judges in the majority were all appointed by Republican presidents, six of them by Donald J. Trump. The dissenters were all appointed by Democrats.

The two sides in the 11th Circuit decision found almost no common ground and appeared to talk past each other.

Writing for the majority, Judge Barbara Lagoa said the issue was simple: The school board was free to require students to use the bathrooms that corresponded with their “biological sex,” which she defined as “sex based on chromosomal structure and anatomy at birth.”

In dissent, Judge Jill A. Pryor said that definition was at odds with modern medical science, particularly by failing to account for “the primacy of two biological components in particular, gender identity and neurological sex.”

Judge Pryor focused on the harm she said the school board’s policy caused to Drew, who “was forced to endure a stigmatizing and humiliating walk of shame — past the boys’ bathrooms and into a single-stall ‘gender neutral’ bathroom.”

In his own dissent, Judge Adalberto Jordan wrote that the school board’s policy was arbitrary, as officials had said they relied on documents submitted at the time of enrollment to determine students’ genders. After Drew enrolled, he obtained a birth certificate and a driver’s license stating he was male, which the school board rejected. But officials said they would have accepted those same documents had they been presented by a new student.

“That transgender student, who presents the same safety and privacy concerns that the school board claims Drew does, would nevertheless be allowed to use the boys’ bathroom,” Judge Jordan wrote.

Jan. 22

Trump Supreme Court nominee Brett Kavanaugh during his Senate confirmation testimony on Sept. 27, 2018 (Reuters photo by Jim Berg via NBC News).

Washington Post, Takeaways from Sundance’s secret Brett Kavanaugh documentary, Jada Yuan, Jan. 22, 2023.  Director Doug Liman told the Sundance audience he started thinking about making the movie in 2018 while watching the Supreme Court hearings and “knowing that something very wrong was happening.”

“We’re getting more tips,” Amy Herdy announced Friday night after the Sundance Film Festival premiere of “Justice,” a documentary she produced about the sexual assault allegations against Supreme Court Justice Brett M. Kavanaugh.

The film’s existence was a surprise, with the festival only revealing on Thursday, its opening night, that it was making a very last-minute addition to the lineup: the first documentary from “Swingers” and “The Bourne Identity” director Doug Liman. Within half an hour of the news getting out, Liman said in the post-screening Q&A, the film team started hearing from people who had sent the FBI tips before Kavanaugh’s confirmation, which the agency did not further investigate.

Suddenly, what was finished began anew. The tips were compelling enough for the team to start investigating and filming again with plans to add footage to the completed film, Liman said. In a wild and rare move, the finished documentary had converted back to a work in progress.

“I thought I was off the hook,” said Liman, who self-funded the film to retain independence and keep it secret. “I was like, ‘We’re at Sundance. I could sell the movie.’ … And yesterday, Amy’s like, ‘We’re not done.’ Seriously. Monday morning, they’ll be back at it.”

The film, which Liman said in a news release is meant to “[pick] up where the FBI investigation into Brett M. Kavanaugh fell woefully short,” debuted to a packed house of nearly 300 people. Someone asked if he’d show it to Kavanaugh. The answer was a joking yes. “We’re looking for buyers,” said Liman, “and it had occurred to us that he might buy it.”

The justice’s fall 2018 confirmation process, which took place just before the midterm elections, became chaotic when Palo Alto-based psychology professor Christine Blasey Ford accused the Trump nominee of sexually assaulting her when they were in high school. After The Washington Post published Ford’s story, two more women accused Kavanaugh of sexual assault.

Deborah Ramirez, one of those women, told The New Yorker’s Ronan Farrow and Jane Mayer that Kavanaugh thrust his penis in her face during a party when they were at Yale University. The FBI interviewed Ramirez, whose attorneys said the bureau never followed up with any of the 20 witnesses who might have been able to corroborate her story. The FBI’s investigation into Kavanaugh generated 4,500 tips that largely went un-investigated.

After reviewing an FBI report compiled in one week, which Democrats decried as rushed and incomplete, the Trump White House declared it found no corroboration of the claims against the justice. Kavanaugh, who was part of the conservative 6-3 majority that overturned Roe v. Wade, has categorically denied all accusations and does not appear in the film outside of archival footage. The public information office of the Supreme Court did not return The Post’s request for comment on the documentary.

Liman told the Sundance audience he started thinking about making this movie in 2018 while watching the hearings and “knowing that something very wrong was happening.”

New York Times, Inside the Supreme Court Inquiry: Seized Phones, Affidavits and Distrust, Jodi Kantor, Jan. 22, 2023 (print ed.). Last spring and summer, employees of the Supreme Court were drawn into an investigation that turned into an uncomfortable awakening.

As the court marshal’s office looked into who had leaked the draft opinion of the decision overturning the constitutional right to abortion, law clerks who had secured coveted perches at the top of the judiciary scrambled for legal advice and navigated quandaries like whether to surrender their personal cellphones to investigators.

The “court family” soon realized that its sloppy security might make it impossible to ever identify the culprit: 82 people, in addition to the justices, had access to the draft opinion. “Burn bags” holding sensitive documents headed for destruction sat around for days. Internal doors swung open with numerical codes that were shared widely and went unchanged for months.

Perhaps most painful, some employees found themselves questioning the integrity of the institution they had pledged to serve, according to interviews with almost two dozen current and former employees, former law clerks, advisers to last year’s clerkship class and others close to them, who provided previously undisclosed details about the investigation.

Inside the court, justices are treated with such day-to-day deference that junior aides assist them in putting on their black robes. As staff members were grilled, some grew concerned about the fairness of the inquiry, worried that the nine most powerful people at the court were not being questioned rigorously like everyone else.

The investigation was an attempt by Chief Justice John G. Roberts Jr. to right the institution and its image after a grievous breach and slide in public trust. Instead, it may have lowered confidence inside the court and out.

On Thursday, the court issued a 20-page report disclosing that the marshal’s monthslong search for the leaker had been fruitless, and detailing embarrassing gaps in internal policies and security. While noting that 97 workers had been formally interviewed, the report did not say whether the justices or their spouses had been.

Public reaction was scathing: “Not even a sentence explaining why they were or weren’t questioned,” tweeted Sean Davis, co-founder of The Federalist, a conservative magazine.

A day later, the court was forced to issue a second statement saying that the marshal had in fact conferred with the justices, but on very different terms from others at the institution. Lower-level employees had been formally interrogated, recorded, pressed to sign affidavits denying any involvement and warned that they could lose their jobs if they failed to answer questions fully, according to interviews and the report.

In contrast, conversations with the justices had been a two-way “iterative process” in which they asked as well as answered questions, the marshal, Gail A. Curley, wrote. She had seen no need for them to sign affidavits, she said.

Instead of putting the matter to rest, Friday’s statement heightened concerns about a double standard for justices.

“They weren’t subjected to the same level of scrutiny,” said one court worker on Friday, speaking on the condition of anonymity because of the court’s confidentiality rules. “It’s hard to imagine any of them suffering meaningful consequences even if they were implicated in the leak.”

An investigation of the abortion opinion leak was meant to right a slide in public confidence. Instead, employees say, it deepened suspicions.

New York Times, After Roe, Republicans Wrestle With What It Means to Be ‘Pro-Life,’ Lisa Lerer and Katie Glueck, Jan. 21, 2023 (print ed.). Activists are pushing for tougher abortion restrictions, while politicians fear turning off swing voters who don’t support strict limits like a national ban.

For decades, opposition to abortion was a crucial but relatively clear-cut litmus test for Republican candidates: support overturning a constitutional right to an abortion, back anti-abortion judges and vote against taxpayer funding for the procedure.

But now, six months after the Supreme Court overturned federal abortion rights, the test has grown a whole lot harder — and potentially more politically treacherous.

Even after a backlash in support of abortion rights cost Republicans key seats in the midterm elections, a restive socially conservative wing is pushing the party’s lawmakers to embrace deeper restrictions. That effort is likely to be on stark display on Friday in Washington, when anti-abortion activists gather for what is expected to be a lower-key version of their annual march.

These activists and their allies are pressuring potential Republican presidential contenders to call for a national ban. Raising the stakes nearly two years before the 2024 contest, Susan B. Anthony Pro-Life America, one of the most powerful anti-abortion groups, said that any candidate who does not support federal restrictions should be “disqualified” from winning the party’s nomination.

Liberty Christian Academy Principal Jason Kennedy and school secretary and home school coordinator Brittney Branham both face charges in the case. (Images: McMinn County Jail).

WTVC (ABC TV affiliate owned by Sinclair Broadcast Group in Chattanooga, TN), Christian school principal indicted on 11 new child sex charges in McMinn County, Staff Report, Updated Jan. 20, 2023. A McMinn County Grand Jury has indicted the principal of a small Christian school in Athens on several new counts. As first reported last year, 47-year-old Jason Kennedy already faces charges he engaged in improper sexual activity with an underage girl.

District Attorney Stephen Crump confirmed on Friday that the charges Kennedy was just indicted for represent 3 more victims, bringing the total number of victims in this case to 4. Tuesday's grandy jury indictment shows Kennedy faces these new charges:

• • Sexual activity involving a minor; Solicitation of a minor to observe sexual conduct; 6 counts of sexual battery by an authority figure; 2 counts of violation of the Child Protect Act; Aggravated sexual battery.

We asked D.A. Crump whether Liberty Christian School's secretary, 28-year-old Brittney Branham, will also face new charges, but Crump said he could not comment on her case.

Previous report: The principal and secretary of a small Christian school in McMinn County engaged in improper sexual activity in front of an underage teen and former student at the pastor's home, according to 2 arrest reports from the McMinn County Sheriff's Department.

47-year-old Jason Kennedy is principal, teacher and pastor of Liberty Christian School in Riceville. 28-year-old Brittney Branham is the school's secretary and homeschool coordinator.

Affidavits we obtained on Friday say the 19-year-old victim reported the incident to authorities earlier this month. She was underage at the time she says the incidents happened.

The report says in the summer of 2019, she would spend the night at Kennedy's Athens home, where he was living with both his wife and Branham.

The young woman said she would stay in Branham's room. While they were in that room, the victim said Jason Kennedy came into the room and started talking about sex with her and Branham.

During the conversation, the teen said Branham encouraged her to let Kennedy touch her private areas, telling her "it was okay to allow him to do that, it was fun, and not to tell anyone because Brittney and Jason could get into trouble," the report says.

In August 2020, the teen says Branham and Kennedy bought her a "black and white skimpy night gown," according to the report. One night when she was staying at Kennedy's home, she told investigators Jason came into the room with her and Branham, and touched the girl's breast.

In early 2021, the teen told investigators that while she was staying in Branham's room again, Kennedy came into the room and began talking about sex.

During that conversation, the woman said both Kennedy and Branham pleasured themselves, and encouraged her to join them. When they were finished, the teen said they adjusted their clothing and "like nothing had happened, they began talking like normal," the report says.

The report says the girl's father would let her spend the night at Kennedy's house, saying that when she did, "Kennedy would have custodial authority" over her.

Washington Post, With Roe dead, a very different March for Life returns to Washington, Justine McDaniel, Caroline Kitchener and Michelle Boorstein, Jan. 21, 2023 (print ed.). Friday’s March for Life, the first since organizers’ dream of overturning Roe v. Wade became a reality, was a celebration for Monica Condit. She had come from Kentucky at the urging of her teenage daughter, Catie. They talked before starting the route about their hope of abolishing abortion totally. At the same time, Condit, 53, said the day was just the start of the real battle: a “conversion of hearts.”

Unless people start to feel differently about abortion, said Condit, “none of these things are going to change.”

The Condits were among thousands who marched to the U.S. Capitol for a historic chapter of the March for Life. Their aspiration of defeating Roe accomplished, the marchers’ words and signs revealed a movement in flux.

In a strategic route-change meant to symbolize abortion opponents’ new focus on legislation, marchers passed by the Capitol instead of heading directly to the U.S. Supreme Court. Among the crowd, though, people shared different ideas about what comes next, how to change the culture and what kinds of laws to pass. Is the path more religious conversion or parental leave? Is the movement, post-Roe, energized or complacent? What specifically does “pro-life” entail?

Attending her fourth March for Life, 69-year-old Fran Clifford said the protest is just as important in post-Roe America as it was before Dobbs v. Jackson Women’s Health Organization, last year’s Supreme Court ruling that left states free to restrict or outlaw abortion.

“We’re not united,” she said. “We need to come together.” Antiabortion advocates need to recommit themselves to helping the women who will now have to carry their pregnancies, said Clifford, who volunteers at a crisis pregnancy center — places, often religiously affiliated, where counselors try to talk pregnant women and other pregnant individuals out of having abortions. “We can’t just say we’re pro-life. People have to do things.”

Steady, Commentary: A Supreme Mess, Dan Rather, right, and Elliot Kirschner, Jan. 21-22, 2023. A court lacking legitimacy. A whodunit that gripped Washington and echoed across the nation has officially turned into an unsolved mystery. But while the culprit in this particular malfeasance remains at large, we have more than enough evidence to determine guilt for an even greater outrage — the brazen assault on decency, judicial temperament, and honorable jurisprudence by the current iteration of the United States Supreme Court.

Simply put, the court has become a mess — less a hallowed marble edifice to constitutional probity than a dangerously petty and unrestrained mosh pit of dysfunction. Get your house in order, indeed. The black robes aren’t fooling anybody.

The court’s investigation into the leak of a draft opinion overturning Roe v. Wade was a stunning failure of mission. The inquiry’s stated goal was not just to identify seriously lax practices at the court around information and technology (which the report did do). We were supposed to learn the name or names behind one of the gravest breaches of court protocol in history. And there, we got nothing.

When the draft opinion overturning Roe was leaked, it created a firestorm. It was rightly seen by those on the political left as representing a dangerous break in precedent, weak legal reasoning, and, most importantly, an attack on women’s health and basic rights. In response to the leak, there was no shortage of public handwringing on the part of court watchers and many of the justices themselves. Public speculation quickly jumped to who might have been the leaker and what might have been their motives. Perhaps not surprisingly, Republicans blamed Democrats, and Democrats blamed Republicans.

As we now know, the draft document ultimately ended up presaging the final decision. Was the leak a way to lock in wavering votes, as many people speculated, or to undercut the legitimacy of the majority, as others contended?

The leak investigation report only creates more questions and elevates the plausibility of theories that had seemed far-fetched. Could it be that some of the justices didn't want to find out the truth? And might it have been one of those justices (or one of their spouses or assistants) who was responsible for the leak?

What has encouraged this speculation is that the justices were not subjected to the same scrutiny in this investigation as everyone else at the court. If the justices think that’s acceptable because they are above reproach, that is only more evidence of how out of touch they are. The real conclusion is that the leak report is far from thorough.

In the wake of the report’s release, many observers started floating the names of Justices Alito and Thomas (as well as Thomas’s wife, Ginny) as the most likely leakers. In this case, the conjecture is purely circumstantial — the idea being that these anti-abortion hardliners had the most to gain by locking in the draft decision. Although both justices have shown a lack of ethical restraint in other matters.

In an attempt to tamp down this conjecture, the woman overseeing the investigation, United States Supreme Court Marshal Gail A. Curley, issued the following statement:

“During the course of the investigation, I spoke with each of the Justices, several on multiple occasions. The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits.”

Let us note that one of the court’s own, its “Marshal,” did the investigating. There was no independent investigation. And none of the justices was asked to testify under oath.

Is this, the whole summation, really sufficient? If the justices are upset that many Americans think it isn’t, they have only themselves to blame. We have a court that is losing the trust of a large swath of the American people. It is a court in which the ends increasingly justify the means, settled law counts for next to nothing, societal upheaval is trivialized, and self-described “conservative” objectives that would never pass in national legislation are turned into the law of the land by judicial decree.

We also have a majority of the justices on the court appointed by presidents who lost the popular vote (including three by the twice-impeached former holder of the office). We have had Supreme Court picks blocked (Merrick Garland, chosen by President Obama) and others rushed through (Amy Coney Barrett, appointed by President Trump) based solely on political expediency. As for Ginny Thomas, she is a known supporter of the Big Lie around the 2020 election.

The strange and as yet unsolved case of the Supreme Court leak, plus the lame investigation around it, leaves the court with a long, hard road to restoration of its reputation and authority.

And as bad as the leak was, it is a symptom of far more systemic rot. Respect must be earned. And it must be earned again once it has been squandered.

Washington Post, Humor: If ‘Law & Order’ investigations went like the Supreme Court leak, Alexandra Petri, right, Jan. 21, 2023 (print ed.). Well, the Supreme Court has finished its investigation and found that the culprit was … unknowable! Better luck next time! They even had former homeland security secretary Michael Chertoff contemplate the investigation. He pronounced it “thorough,” and didn’t do any more investigation himself.

Seems fine! Anyway, since most of what I know about the law is from “Law and Order,” here is an episode of its next wildly popular spinoff: “Law and Order: If They Investigated Things the Way the Supreme Court Seems to Have Investigated Its Leak Case.”

Washington Post, Opinion: Was leaking the Dobbs opinion the perfect crime? It sure looks that way, Ruth Marcus, right, Jan. 22, 2023 (print ed.). Imagine that a group of people is gathered at a country home for the weekend. One of the guests is shot and killed. The suspects are carefully questioned, their rooms searched for the murder weapon. Except for nine of those present, who are not required to undergo anything like such rigorous interrogation. They simply attest that they didn’t pull the trigger.

The conclusion of this bad Agatha Christie murder mystery will come as no surprise: Authorities pronounce themselves unable to conclusively identify the perpetrator.

From everything that we can deduce from the Supreme Court’s just-released report on the leak of its abortion ruling, that is about what happened during the court’s investigation of itself. That raises the question that Christie would ask: Did the court — did Chief Justice John G. Roberts Jr., right — really want to find the leaker, the person responsible for what the court’s statement termed “a grave assault on the judicial process” and an “extraordinary betrayal of trust”?

This court continues to be its own worst enemy, lacking in transparency and disdainful of reasonable inquiries. Thursday’s release of the report by the marshal of the court, Gail Curley, was obscure — my guess is deliberately — about whether the eight-month investigation had included interviews with the justices. Did the chief justice and his colleagues really think that question wouldn’t be asked — or that it could be ducked?

For 24 hours, the court’s press office declined to elaborate. And because the report was so unclear, and appeared to distinguish between court employees and the justices themselves, many of those reading the report assumed, not unreasonably, that the justices hadn’t been subject to questioning.

Now comes Curley with too little, too late. In a statement released Friday afternoon, she assures us that “during the course of the investigation, I spoke with each of the Justices, several on multiple occasions. The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe it was necessary to ask the Justices to sign sworn affidavits.”

Late in the process, Roberts asked former Homeland Security secretary and federal appeals court judge Michael Chertoff to review Curley’s work. In a statement included in the report, Chertoff said the marshal “undertook a thorough investigation” and that he “cannot identify any additional useful investigative measures.”

Chertoff, left, is an experienced investigator. He also has close ties to some justices — including the author of Dobbs, the abortion ruling. Chertoff served from 1987-1990 as first assistant to Justice Samuel A. Alito Jr. when Alito was the U.S. attorney for New Jersey. Chertoff succeeded Alito in that job, and the two served together as federal appeals court judges from 2003 to 2005. I don’t doubt Chertoff’s professionalism, but that’s uncomfortably close.

The court cannot have thought that this report, with its coy avoidance of dealing with how the justices themselves were treated, would satisfy anyone, on the right or left. It didn’t, and shouldn’t. The leak was a disaster for the court. This report, predictably inconclusive and grossly inadequate, piles one disaster on another.

Relevant Recent Headlines

• New York Times, Opinion: The Next Phase of the Abortion Fight Is Happening Right Now In New York, Michelle Goldberg
• New York Times, Supreme Court Says It Hasn’t Identified Who Leaked Draft Abortion Opinion
• Washington Post, Opinion: Was leaking the Dobbs opinion the perfect crime? It sure looks that way, Ruth Marcus
• Washington Post, Marshal says Supreme Court justices questioned in leak probe, not implicated
• Washington Post, With Roe dead, a very different March for Life returns to Washington
• New York Times. Opinion: Did the Supreme Court’s Leak Investigation Let the Justices Off the Hook? Aaron Tang
• Politico, Five takeaways from Supreme Court leak investigation, Josh Gerstein
• New York Times, On Roe’s 50th Anniversary, Abortion Foes Are Split
• New York Times, From the French Resistance to Warhol to the Abortion Pill

Jan. 19

New York Times, Supreme Court Poised to Reconsider Key Tenets of Online Speech, David McCabe, Jan. 19, 2023. The cases could significantly affect the power and responsibilities of social media platforms.

For years, giant social networks like Facebook, Twitter and Instagram have operated under two crucial tenets.

The first is that the platforms have the power to decide what content to keep online and what to take down, free from government oversight. The second is that the websites cannot be held legally responsible for most of what their users post online, shielding the companies from lawsuits over libelous speech, extremist content and real-world harm linked to their platforms.

Now the Supreme Court is poised to reconsider those rules, potentially leading to the most significant reset of the doctrines governing online speech since U.S. officials and courts decided to apply few regulations to the web in the 1990s.

On Friday, the Supreme Court is expected to discuss whether to hear two cases that challenge laws in Texas and Florida barring online platforms from taking down certain political content. Next month, the court is scheduled to hear a case that questions Section 230, a 1996 statute that protects the platforms from liability for the content posted by their users.

The cases could eventually alter the hands-off legal position that the United States has largely taken toward online speech, potentially upending the businesses of TikTok, Twitter, Snap and Meta, which owns Facebook and Instagram.

“It’s a moment when everything might change,” said Daphne Keller, a former lawyer for Google who directs a program at Stanford University’s Cyber Policy Center.

The cases are part of a growing global battle over how to handle harmful speech online. In recent years, as Facebook and other sites attracted billions of users and became influential communications conduits, the power they wielded came under increasing scrutiny. Questions arose over how the social networks might have unduly affected elections, genocides, wars and political debates.

In some parts of the world, lawmakers have moved to rein in the platforms’ influence over speech. Last year, European legislators approved rules that require internet companies to carry out procedures for taking down illicit content and to be more transparent about how they recommend content to people.

In the United States, where freedom of speech is enshrined in the First Amendment, there has been less legislative action. While lawmakers in Washington have grilled the chief executives of the tech giants over the past three years about the content they take down, proposals to regulate harmful content haven’t gotten traction.

Jan. 14

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

Proof, Investigative Commentary: Ginni Thomas Gave the Strangest January 6 Testimony By Far—and in Doing So Revealed Far More Than She Intended, Seth Abramson, left, Jan. 14, 2023. In “The January 6 Files #2: Ginni Thomas, Part I,” an ex-federal criminal investigator and criminal defense lawyer whose January 6 research Congress has cited unpacks January 6 evidence others missed. (Note: This report builds upon Proof’s many prior reports on Ginni Thomas: I, II, III, IV, V.)

Before the January 6 testimony of Ginni Thomas can be discussed as to its specifics, several broader points about her September 29, 2022 appearance before the House January 6 Committee must be established that confirm it as perhaps the strangest—and most suspicious—testimony ever received by the Committee.

These points include the following:

(1) Ginni Thomas lied about her testimony before it began. Thomas initially insisted that she “couldn’t wait” to talk to the House January 6 Committee, as she had nothing to hide. This itself was, apparently, a lie. Within a matter of weeks, Thomas’s attorney Mark Paoletta was attacking the Committee on several fronts, insisting that Thomas would never testify before it and falsely contending that Thomas had no knowledge of any events related to January 6 despite the fact that (by then) it’d been well established by major media that she was in contact with several of the major January 6 coup plotters in the latter half of 2020 as they were in the midst of their illicit plotting.

(2) Ginni Thomas chose as her attorney the former boss of a leading coup plotter. There’s a basically endless stock of high-end lawyers in America who are willing to jump onto a high-profile case, and that includes scores of well-respected conservative lawyers who primarily work in Washington, D.C. So it is truly inexplicable that Ginni Thomas, in the midst of claiming to have no connection to the Trumpist coup plots that encircled D.C. in January 2021, hired as her lead attorney for the most important legal imbroglio of her life Mark Paoletta, a longtime close professional associate of Ken Klukowski—not just one of the leading co-conspirators of John Eastman and Jeffrey Clark in the Trumpist plot to stage a historic anti-democratic coup inside the Department of Justice, but a man who Thomas specifically stood accused of having helped infiltrate the DOJ. Thomas’s choice of attorney alone would have marked her as running in insurrectionist circles, but in fact during her 136 pages of congressional testimony things got even worse—as she admitted to herself being a close associate of Klukowski.

Given that Thomas, right, knew this line of questioning was coming, her voluntary selection of Paoletta to represent her raises an understandable concern that she wanted a trusted and privileged conduit to Klukowski (Paoletta) to ensure that her testimony synched with his. Certainly, as we know from public hearings held by the House January 6 Committee this is a strategy many of the January 6 coup plotters have used: hiring lawyers intimately connected to Trump, his family, his inner circle, and his leading PACs, with formal joint defense agreements or informal information-sharing agreements (sometimes conducted against the will of the witnesses involved in them, such as Trumpworld lawyer Stefan Passantino’s apparent dismissal of his client Cassidy Hutchinson’s demand that he not share attorney-client privileged data with other Trumpworld figures) being used to pass information between conspirators.

Thomas could have avoided this appearance of complicity with leading Trumpist coup plotters, but she decided to indulge it, instead. And that’s not all, unfortunately: her own testimony before the House January 6 Committee, as we will soon see, offers compelling evidence that she herself sought—multiple times, even—to inappropriately make contact with other January 6 witnesses either directly or through her attorney (especially witnesses whose testimony could, based on all the evidence we have thus far, be problematic for her) which would seem to increase the odds that her selection of Klukowski’s friend Paoletta as her lead counsel was indeed a strategic decision.

(3) Ginni Thomas refused to testify under oath. To be clear, a refusal to testify under oath certainly does not equate to an intent to lie, but keep in mind that Thomas and her lawyer had loudly opined that not only did Thomas have nothing to hide from the House January 6 Committee but also that there was nothing of importance she could offer to it. Just so, her status as the wife of Supreme Court Justice Clarence Thomas has, as she has at times conceded, opened social and professional doors for her and lent additional attention and weight to her words, so surely the flip side of that must be that if one’s spouse is one of just nine people in the United States who sit atop the nation’s jurisprudential superstructure, one must also (in addition to the myriad perks that come with that status) have some obligation—quite apart from the one Thomas already has from the mere fact that she herself is a lawyer—to respect government investigations enough to want to assist them to the best of your ability.

It is strange that media pundits so often note that Thomas is a partisan without simultaneously noting that she is also a lawyer, a judge’s spouse, a devout Christian, and someone who has worked for years in public service—all identities that would militate in favor of a person who says they have nothing to hide being willing to testify under oath in a duly constituted public inquiry (which the House January 6 Committee surely was).

Ginni Thomas refusing to testify under oath is so complex a legal, political, moral, ethical, and logistical question that it could easily give birth to its own report at Proof. Suffice to say that there is nothing normative, non-controversial, or simple about the decision, especially (again) since it was a decision made on the advice of a man extremely close to a man alleged to be a leading coup plotter.

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, legal 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).

Jan. 12

New York Times, Supreme Court Leaves New York’s New Gun Law in Place for Now, Adam Liptak, Jan. 12, 2023 (print ed.). The law, enacted in response to a decision in June striking down a restrictive gun control law, imposed new requirements on carrying guns in public.

Six months after the Supreme Court struck down a New York law that placed strict limits on carrying guns outside the home, the court refused to block a new law enacted in response to that ruling.

The court’s brief, unsigned order gave no reasons, which is typical when the justices act on emergency applications. Challenges to the new law remain pending before the federal appeals court in New York.

In a statement, Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas, said the law “presents novel and serious questions.” But he added that the appeals court should address those questions first, so long as it does so promptly.

The law, enacted in July, requires people seeking gun licenses to show that they have “good moral character” and bans guns in many public locations. In addition, the law bans guns on private property unless the owner consents to their presence.

Jan. 7

New York Times, Guest Essay: What Went Unsaid in the Chief Justice’s Report on the Judiciary, Nancy Gertner and Judith Resnik, Jan. 7, 2023. Judge Gertner, a retired Federal District Court judge, is a senior lecturer in law at Harvard Law School. Ms. Resnik is a professor at Yale Law School.

John Roberts, right, the chief justice of the Supreme Court, recently filed his 2022 “year-end report on the federal judiciary.” It’s more interesting for what it didn’t say than for what it did.

To underscore the threatening world that judges occupy, the chief justice began by focusing on a pivotal moment in the desegregation of the nation’s schools. The 1957 attempt by the Arkansas governor Orval Faubus to block Black students from entering Little Rock Central High School led to threats of violence against the federal judge who enforced the court’s 1954 Brown v. Board of Education decision. That judge, Ronald N. Davies, was “uncowed,” the chief justice wrote, despite being “physically threatened.”

“A judicial system cannot and should not live in fear,” Chief Justice Roberts added as he thanked Congress for passing a law last year to protect judges. The new law was named in honor of Daniel Anderl, the son of Judge Esther Salas of the U.S. District Court of New Jersey, who was murdered in 2020 in an assault meant for the judge at her home. The law screens from the public the personal information of federal judges and their families, including identifiers such as license plate numbers and addresses. Leaders like the chief justice deserve praise when they highlight the dangers all public officials now face.

Focusing on the Brown decision was nonetheless surprising. After all, the court appears poised to reverse a decision upholding affirmative action in school admissions, one of the very remedies that the Brown decision spawned, and which all nine members of the court stood squarely behind in 1954 and reaffirmed in a subsequent case in 1958.

In past years, the chief justice sometimes used his year-end report to describe substantive reforms in the federal courts, like the task force created in 2018 in response to allegations that federal judges had harassed their staffs sexually and in other ways. Not so in his latest report, which was four pages long with a five-page appendix. Chief Justice Roberts did not mention any of the many issues that made the news about the court last year — the lack of an effective recusal requirement for justices whose actions or those of family members raise questions about impartiality, the leak of a draft of the court’s decision overturning abortion rights, the insufficiency of financial disclosure and questions about fund-raising for the Supreme Court Historical Society.

Nor did the chief justice explore the troubling data in his report’s appendix on “the workload of the courts.” The numbers document a sharp decline of the use of the federal courts. Federal appellate filings fell again in the fiscal year 2022, a steady decline from 49,000 in 2018 to fewer than 42,000 last year. Trial-level civil cases in the federal district courts have fallen precipitously as well — down from more almost 283,000 cases in 2018 to about 240,000 in 2022.

In calculating totals and the trend in civil cases, court administrators did not include about 321,000 filings that, starting in 2020, were brought by military service members and veterans who claimed that combat earplugs sold by 3M to the U.S. military were faulty. Under a federal statute, those cases became, in effect, one litigation, consolidated before trial in front of a single judge, and they are an example of the importance of people having access to courts, which can no longer be taken for granted.

The opinions of the very court that the chief justice leads provide insight into the decline. We know from our own experience that savvy civil rights lawyers now steer clear of federal court. Winning in the appellate courts risks having the Supreme Court’s conservative majority extinguish any gains won for women, prisoners, the environment and more.

The dwindling numbers of filings at the trial level in the U.S. District Courts also derive in part from what the Supreme Court has done during the last few decades — to close the courthouse doors to many would-be litigants, in class-action lawsuits and other cases.

key example can be found in the court’s interpretations of the 1925 Federal Arbitration Act. In a series of cases that began in the 1980s, the court has read the statute to mean that employers and businesses can include arbitration clauses in lengthy, dense, fine-print documents with consumers and employees that bar access to courts and to class actions. Even complaints of violations of state and federal anti-discrimination statutes and of federal laws regulating securities, fair credit, unlawful mergers and unfair business practices can be forced into arbitration rather than being litigated in court. Anyone aggrieved has to go, one by one, to private arbitration. In practice, almost none do, because most people don’t have the resources to pursue small-value claims.

In contrast, the veterans in the combat earplug cases were able to get into court because no arbitration mandate kept them out. And once in court, because of procedures designed to make group-based litigation easier, they could combine resources to pursue their arguments of hearing loss and tinnitus.

The “state of the judiciary” address is a bully pulpit constructed decades ago by Chief Justice Warren Burger. Given the challenges the country faces, we need a chief justice who helps us all talk seriously about what ails the federal courts.

Chief Justice Roberts’s focus on 1950s desegregation litigation is a poignant reminder that once federal courts led the way in protecting civil rights and making courts accessible to all. His court, however, has made plain it has no interest in opening doors.

For that, we need Congress to reinvigorate federal rights and end the power of would-be defendants to control access. That’s what Congress did in 2022 when it amended the 1925 arbitration statute to let victims of sexual assault and harassment decide if they want to sue in court rather than consider using arbitration. The chief justice properly commended Congress for making strides in protecting federal judges. Now Congress needs to protect and support the right to bring cases to those judges.

Jan. 5

New York Times, Opinion: A Ritual Returns: Supreme Court Justices Will Explain Their Decisions, Linda Greenhouse (shown at right on the cover of her memoir_, Jan. 5, 2023. The Supreme Court’s recent announcement that the justices will return to their prepandemic practice of announcing their decisions in open court has been met with a few yawns and a big dose of scorn.

I understand both reactions: Yawns because whether the justices describe their decisions orally or simply post them on the court’s website, as they have done since the spring of 2020, is irrelevant to most consumers of news about the court. And scorn because the court will not stream the announcements live as it now routinely does for its oral arguments.

Both the yawns and the scorn miss a larger point. The oral decision announcements — “hand-downs,” as they are known within the court, as in handing down a decision — are important to the court’s institutional life.

Because it is in those moments that the Supreme Court meets the public. The courtroom audience may be small, and hardly representative of the public at large, but it is real.  The hand-downs are performances, yes, but what the justices are performing is a kind of accountability. They are showing their faces, explaining themselves. For better or worse, they are owning their work, at the moment of its emergence into the world.

Jan. 3

More On Trump, Insurrectionists, Allies

Proof, Investigative Commentary: Proof Launches Stage 2 of Its January 6 Coverage, Seth Abramson, left, Jan. 3, 2023. Proof’s January 6 reporting—which has provoked lawsuit threats from and texts between key January 6 actors, and often appeared in the U.S. House record—is moving from investigation to evidence review.

Introduction: The first two years of Proof have been a wild ride. This media outlet evolved into a sprawling, 14-section center for curatorial journalism that accrued a readership of 75,000 and became one of the Top 15 political substacks in the world.

It was cited in the successful House January 6 Committee referral of Steve Bannon for criminal prosecution by the Department of Justice. Its reports were entered into the Congressional record during the second impeachment trial of Donald J. Trump. It was the subject of private texts between two of the key event-planners behind January 6, Trump adviser Katrina Pierson and Women for America First capo Amy Kremer.

In 2022, the House January 6 Committee even reached out directly to Proof for aid.

Shortly thereafter, Proof published the fourth book in the New York Times-bestselling Proof series: Proof of Coup: How the Pentagon Shaped An Insurrection. The book tells the story of events so critical to national security, politically sensitive, and (not to put too fine a point on it) historically contingent—because they remain under active federal investigation—that they don’t even appear in the sprawling final report of the House January 6 Committee.

Proof has been the subject of lawsuit threats from key January 6 figures Roger Stone and Michael Flynn, as well as the co-founder of the Proud Boys, Gavin McInnes.

And Proof is currently being sued for $25 million by an attorney linked to the Flynn family, Kash Patel, Truth Social head (and former GOP congressman) Devin Nunes, and the First Amendment Praetorians (bodyguards for Flynn, Ali Alexander, Patrick Byrne, Sidney Powell and other Trumpist leaders in the post-election period in 2020).

January 6 reporting at Proof has been cited by major-media news outlets around the world, and even helped launched a Brazilian congressional inquiry into the actions of neo-fascist Eduardo Bolsonaro, the son of Trump ally and former Brazilian president Jair Bolsonaro. (You can read much more about the odd, frenetic history of Proof here.)

And now, in these opening hours of 2023, Proof is about to enter a striking new phase in its celebrated January 6 investigation.

Evidence review. Once any available initial (seminal) evidence has been reviewed, and a theory or dueling theories of the case developed, and evidence supporting that theory or theories pursued, a time inevitably comes for the most critical determination of all: has one theory of the case won out, in view of all the evidence now compiled?

Determining this takes an encompassing and sometimes lengthy evidentiary review—a process not nearly as dry as it sounds, as it operates upon not just seminal evidence and early supporting evidence but the entire universe of available evidence that the case investigators have been able to compile, collate, and curate over a protracted period of time (in the case of January 6, approximately two years).

It’s at this stage that a final determination is made about “what really happened.”

So how does this translate to Stage 2 of the January 6 investigation at Proof, which is about to be launched?

Now that the House January 6 Committee has published not just an 845-page final report but the entirety of the “non-sensitive” portion of its evidentiary record—which includes over a hundred notable witness transcripts—the seminal evidence related to January 6 (much of it already synthesized by DOJ in its prosecutions of January 6 foot-soldiers and by some independent researchers via the online #SeditionHunters effort) can be conjoined to this new evidence, and to existing theories of the case, to form the most complete picture of the events of January 6 we have ever had.

Books like Proof of Coup—which cover information that was left out of the House January 6 Committee report for national security and political-sensitivity reasons (e.g., fear of destabilizing institutions that defend the nation’s soil and the President of the United States)—can also become a critical part of this encompassing evidentiary record.

You may now be asking, “Yes, but doesn’t the House January 6 Committee’s final report constitute the conclusive synthesis and summation of the January 6 record?”

And the answer—perhaps surprisingly—is no.

The reason the House January 6 Committee not only released a final report but all the evidence upon which it relied is because its work was curtailed far more dramatically than many realize. Had the Democrats not lost the House of the Representatives in the 2022 midterm elections, we could expect the House January 6 Committee to have continued its work for at least two more years. We would have had more hearings, more witness interviews, a longer final report, and—above all—much, much more federal litigation in an effort to force certain subpoenaed witnesses to honor their subpoenas. Moreover, because DOJ likely needs to make its charging decisions with respect to the January 6 coup plotters (as opposed to merely its foot-soldiers) in 2023, we would expect that a House January 6 Committee not prematurely shuttered by Republican gains in the House in November 2022 would have gleaned an enormous amount of additional data from anything DOJ already has or will soon find that will be made public via its hotly anticipated prosecutions of the masterminds of January 6.

The Committee is aware, in other words, that legions of corporate and independent journalists have been waiting to assist the Committee in its investigative work. All that these people and entities (which include this author and this media outlet) have been waiting for is the release of the evidence Congress has developed as it chased down various theories of the case of January 6 which—to be candid—Proof helped develop both directly and indirectly.

Now that this evidence has been made public, Stage 2 of the January 6 investigation—which is also Stage 2 of the January 6 investigation at Proof—can begin. It is likely to last almost the entirety of 2023.

Conclusion

It is the ambition of this author to have the Stage 2 investigation of January 6 at Proof be the most comprehensive—and essential—such journalistic coverage in the United States.

If that sounds like a preposterously lofty goal, perhaps it is: certainly, January 6 is already as reported on and analyzed an event as America has ever seen.

But as we have already seen, coverage of the House January 6 Committee Final Report is, at least in major corporate media, fairly shallow. Only a handful of newly released January 6 witness transcripts have been given any attention at all, and this attention has generally been (a) not from lawyers, (b) focused only on one or two very obvious takeaways, (c) so transient that the assumption of major media appears to be that Americans can’t focus on any discrete piece of evidence for more than a day or two, and (d) disconnected from the best research on January 6 (which frankly has come from obsessive independent researchers with an eye for detail, rather than major-network TV producers with an eye toward producing satisfying one-off “A” blocks).

What is needed now are researchers, historians, and investigative journalists who will, with academic precision, take discrete pieces of evidence and plug them meaningfully into the vast network of data the historic January 6 investigation has become. If major-media coverage of January 6 has devolved into briskness, redundancy and shallowness, it must now be durable, incisive and profound. It’s with this in mind that Proof says the following: that it aims for its readers to be the best-informed students of January 6 anywhere in the world.

This goal isn’t a small one—not when January 6, 2021 has turned out to be merely the launch of an ongoing far-right insurrection inside America, one that aims to replace our democracy with an authoritarian, Christofascist tyranny. January 6 doesn’t matter because of what it was in American history, but because of what it is right now.

In view of all this, the idea of Proof starting 2023 by launching Stage 2 of its January 6 investigation is at once exhilarating and terrifying. Proof has already uncovered, via its soon-to-be-launched “January 6 Files” series—which decodes, contextualizes, and networks the most important January 6 witness transcripts in exhaustive detail—acts of perfidy and possible sedition that couldn’t even have been contemplated, let alone reported on, prior to the release of witness transcripts (in the scores and more) by the U.S. House of Representatives over just the last two weeks.

What Proof asks of its readers, in advance, is a certain degree of patience. There are so many documents newly available for review by January 6 historians, researchers, and January 6 beat reporters that it is tempting to think they can be adequately unpacked in quick-hit major-media “listicles” addressing just a handful of the most high-profile witness transcripts. In fact, Stage 2 will be a painstaking process that may take, as was noted above, almost the entirety of 2023.

I intend this introductory essay to serve as a personal invitation for you to take a year-long journey with me right here at Proof, a place where the journalism is indeed—and very proudly so—“like a dog with a bone”: stubborn, tenacious, persistent, relentless, and dogged.

Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who later taught digital journalism, legal 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).

December

Dec. 31

New York Times, Investigation: A Charity Tied to the Supreme Court Offers Donors Access to the Justices, Jo Becker and Julie Tate, Dec. 31, 2022 (print ed.). The Supreme Court Historical Society has raised more than $23 million in the last two decades, much of it from lawyers, corporations and special interests.

While ostensibly independent, the society has become a vehicle for those seeking access to nine of the most reclusive and powerful people in the nation. A Charity Tied to the Supreme Court Offers Donors Access to the Justices

People in formal attire sit on and stand amid the audience benches that face the bench where the justices sit in the Supreme Court chamber. Behind the justices’ bench are red curtains and four white marble columns.

In some years, Chief Justice John G. Roberts Jr., right, does the honors. In others, it might be Justice Sonia Sotomayor or Justice Clarence Thomas presenting the squared-off hunks of marble affixed with the Supreme Court’s gilded seal.

Hewed from slabs left over from the 1930s construction of the nation’s high court and handed out in its magnificent Great Hall, they are a unique status symbol in a town that craves them. And while the ideological bents of the justices bestowing them might vary, there is one constant: All the recipients have given at least $5,000 to a charity favored by the justices, and, more often than not, the donors have a significant stake in the way the court decides cases.

The charity, the Supreme Court Historical Society, is ostensibly independent of the judicial branch of government, but in reality the two are inextricably intertwined. The charity’s stated mission is straightforward: to preserve the court’s history and educate the public about the court’s importance in American life. But over the years the society has also become a vehicle for those seeking access to nine of the most reclusive and powerful people in the nation. The justices attend the society’s annual black-tie dinner soirees, where they mingle with donors and thank them for their generosity, and serve as M.C.s to more regular society-sponsored lectures or re-enactments of famous cases.

The society has raised more than $23 million over the last two decades. Because of its nonprofit status, it does not have to publicly disclose its donors — and declined when asked to do so. But The New York Times was able to identify the sources behind more than $10.7 million raised since 2003, the first year for which relevant records were available.

At least $6.4 million — or 60 percent — came from corporations, special interest groups, or lawyers and firms that argued cases before the court, according to an analysis of archived historical society newsletters and publicly available records that detail grants given to the society by foundations. Of that, at least $4.7 million came from individuals or entities in years when they had a pending interest in a federal court case on appeal or at the high court, records show.

The donors include corporations like Chevron, which gave while embroiled in a 2021 Supreme Court case involving efforts by cities to hold the oil company accountable for its role in global warming. Veteran Supreme Court litigators gave while representing clients before the court that included Tyson Foods and the Ministry of Commerce of the People’s Republic of China.

Among the ideologically driven activists from both sides of the political aisle who donated to the society were the benefactors of an anti-abortion group whose leader instructed them to use the society’s annual dinners to meet and befriend conservative justices.

Virtually no one interviewed by The Times, including critics of the society’s fund-raising practices, said they believed that donations to the society had any bearing on cases before the justices. For one thing, many of the donors are already part of the Supreme Court’s insular and clubby world, where former clerks frequently socialize with and argue cases before their former bosses, and where the justices steadfastly refuse to televise their arguments and specifically reserve only a fraction of the court’s 439 seats for members of the public.

Carter G. Phillips, a Supreme Court litigator at Sidley Austin and the society’s treasurer, said it never occurred to him that anyone would use the society as a way to buy face time or favor with the justices, in part because the society’s events generally afford only fleeting contact with them.

“It’s disgusting,” he said. “Many of the people who contribute have the same reasons I do. You go to a cocktail party and support a good cause. But it turns out that for some people it’s not that innocent. And I think the justices are a victim of that.”

But David T. Pride, the executive director of the society from 1979 until he retired last year, defended the society’s practice of seeking donations from those with interests before the court, saying he “was pretty unabashed about it.”

“Who wouldn’t expect that to be our constituency?” he said. “I don’t think I would have taken money from the Communist or Nazi Parties, but within reason the society was open to all.”

The society was founded in 1974 by Chief Justice Warren E. Burger to make the court more welcoming to visitors and to restore dusty old portraits of justices of yore. Every chief justice since has served as its honorary chairman.

It publishes bound journals of Supreme Court history; restores, maintains and displays historically significant artifacts such as the robes of Justice Louis D. Brandeis; hosts lectures; and brings schoolteachers from around the country to Washington for an annual summer institute, where they learn about the court. Trustees of the nonprofit are expected to give at least $5,000 a year, “patrons” give between $12,500 and $25,000, and “benefactors” give more than $25,000.

Perhaps unsurprisingly, the historical society’s most significant source of identifiable funds — more than 34 percent — is the lawyers and law firms that practice before the Supreme Court, according to the Times analysis.

The chairman of the society’s board of trustees, Gregory P. Joseph, is a corporate litigator who served as the president of the American College of Trial Lawyers. Over the years, he and his firm have given at least $187,500 to the society, including in 2019, when he filed a submission with the court on behalf of the Sackler family, the longtime owners of Purdue Pharma, in a case involving accusations that they had siphoned billions of dollars out of the company in an attempt to deplete its coffers and limit the exposure the drugmaker faced over its deceptive marketing of OxyContin.

A number of other trustees who give regularly, such as Beth Brinkmann of Covington & Burling, served as Supreme Court clerks. Ms. Brinkmann joined the society’s board in 2006, and she was featured in the society’s newsletter in 2021 for giving at the patron level. Also in 2021, she represented power companies in the Supreme Court case West Virginia v. E.P.A., which limited the Environmental Protection Agency’s ability to regulate power plant emissions.

In 2013, the general counsels of Facebook and Time Warner were invited to attend the gala at the Plaza Hotel in New York. There, under a projected image of the Constitution, they were given the society’s first “Amicus Curiae Awards,” according to a society newsletter. That year, Facebook and Time Warner, through its various entities, donated at least a combined $50,000. This year, Kathryn Ruemmler, the general counsel of Goldman Sachs, received the award; Goldman Sachs, which had recently secured a Supreme Court victory making it harder for shareholders to mount class-action suits alleging securities fraud, donated $25,000.

Dec. 28

Washington Post, Supreme Court leaves in place pandemic-era Title 42 border policy for now, Robert Barnes and Ann E. Marimow, Dec. 28, 2022 (print ed.). The Trump-era policy allows quick expulsion of migrants from U.S. borders without the chance to seek asylum. The court’s action was temporary, and it will consider in February whether states had the legal standing to intervene in the dispute.

The Supreme Court on Tuesday blocked the Biden administration’s plans to end a pandemic-era policy allowing the quick expulsion of migrants from U.S. borders without the opportunity to seek asylum.

The Trump-era policy, known as Title 42, had been set to expire last week, but Chief Justice John G. Roberts Jr. paused that plan to give the high court time to weigh the issue.

In Tuesday’s order, five conservative justices sided with Republican officials in 19 states, including Texas and Arizona, who sought to maintain Title 42, which has been used to expel migrants more than 2 million times since it was implemented in March 2020.

But the court’s action was temporary, and it will consider in February whether the states had the legal standing to intervene in the dispute.

The court’s order was unsigned, but the court’s three liberal justices, along with conservative Justice Neil M. Gorsuch, objected.

Gorsuch wrote that the court’s action was designed to help avert a crisis at the border, but that was not the role of judges.

“The current border crisis is not a COVID crisis,” Gorsuch wrote. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”

Gorsuch’s statement was joined by Justice Ketanji Brown Jackson. Justices Sonia Sotomayor and Elena Kagan would have turned down the request from the states but did not give their reasoning.

The Biden administration has said that ending the policy will restore existing federal laws designed to punish and quickly deport migrants who cross the border illegally and to protect those with legitimate asylum cases. That system is more effective, officials have said, particularly for adults traveling without children, since Title 42 merely pushes people to the other side of the border to try again.

Official border crossings remain essentially closed to asylum seekers while Title 42 remains in effect. That has helped fuel an influx of thousands of migrants crossing the border outside of the legal entry points, hoping to turn themselves in to border police and request asylum proceedings that would allow them to stay — at least temporarily — in the United States.

The Biden administration agreed that the policy should end even as it struggled to deal with the influx of migrants. U.S. Solicitor General Elizabeth B. Prelogar told the justices the federal government recognizes that lifting Title 42 “will likely lead to disruption and a temporary increase in unlawful border crossings.” But she wrote that the solution to that immigration problem “cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification.”

Dec. 26

 Former Trump National Security Advisor Michael Flynn, a leading proponent of the Jan. 6 pro-Trump "Stop the Steal" that led to the Capitol insurrection, is shown in a collage with then-President Donald Trump (File photos).

Wayne Madsen Report, Investigative Commentary: The missing piece in the January 6th Committee Report, Wayne Madsen, left, author of 22 books (including The Rise of The Fourth Reich, below,  and former synidcated columnist, Navy intellitence officer and NSA analyst, Dec. 25-26, 2022.

The House Select Committee on the January 6 attack on the Congress did an admirable job of cutting through the obstruction of justice, obfuscation, and plain old lying from Donald Trump and his administration’s and presidential campaign’s hopeless sycophants.

However, the committee failed to answer the mail on the military’s involvement in pre- and post-coup plans for a Trump military-civilian junta to rule the United States. Far too many Department of Defense political appointees were not criticized in the committee’s report, particularly those who failed to order the early deployment of National Guard troops to safeguard the Capitol complex for the ceremonial counting of the electoral votes to proclaim Joe Biden and Kamala Harris the president- and vice president-elect of the United States.

It is quite clear that Trump had installed a coterie of military and civilian officials at the Pentagon whose main task it was to fail to respond to pleas for assistance from congressional and Washington, DC authorities as insurrectionists stormed the Capitol.

The presence of then-Major General Charles Flynn, right, within the U.S. Army’s Pentagon staff should have raised the suspicions of the committee. Flynn’s brother, Trump’s former national security adviser Mike Flynn, had been one of the chief proponents of advancing Trump’s “Stop the Steal” campaign to the point where he called for the military to not only seize voting machines but Trump to declare martial law and hold an unconstitutional “do-over” of the November 3rd election.

Other active duty officers who stymied the dispatch of National Guard troops to the Capitol included Lieutenant General Walter Piatt, Charles Flynn’s immediate superior, who remains the Director of the Army Staff at the Pentagon, and then-Brigadier General Christopher LaNeve, the Director of Operations and Mobilization, who worked under Piatt and Flynn, and has since been promoted to Major General and is currently the Commander of the 82nd Airborne Division at Fort Bragg, North Carolina.

It is very clear that a group of far-right retired flag rank military officers stood ready to fill important government positions in a Trump junta after a successful January 6 coup. During the 2020 campaign 317 of these officers, representing “Flag Officers 4 America,” signed an open letter full of vitriolic pro-Trump rhetoric, including the charge that the “Democrat Party” was “welcoming Socialists and Marxists” and that “our historic way of life is at stake.”

WMR has compiled a spreadsheet listing the names of the “Flag Officers 4 America” and other lower-ranked military retirees and active members of the military and reserves who provided aid and comfort to Trump and his coup plotters. While this is not a complete list of officer-level traitors in the U.S. military community, it can be appended with additional names.

Just Security, January 6 Clearinghouse Congressional Hearings, Government Documents, Court Cases, Academic Research, Ryan Goodman and Justin Hendrix, Dec. 26, 2022. Deposition Transcripts of House Select Committee (sorted by affiliation, alphabetical, date of deposition)   Welcome to this all-source repository of information for analysts, researchers, investigators, journalists, educators, and the public at large. 

Check out our new addition below: A curated repository of deposition transcripts from the House Select Committee. Readers may also be interested in Major Highlights of the January 6th Report.

If you think the January 6 Clearinghouse is missing something, please send recommendations for additional content by email to This email address is being protected from spambots. You need JavaScript enabled to view it.. 

The authors are grateful for the assistance of Joshua Asabor, Matthew Bailey, Sarah Butterfield, Brianne Cuffe, and Nicholas Tonckens in the creation of the Clearinghouse.

Dec. 16

Politico, Exclusive: Jan. 6 panel to vote on urging DOJ to prosecute Trump on at least three criminal charges, Kyle Cheney and Nicholas Wu, Dec. 16, 2022. The report that the select panel (with two of its leaders shown at right above) is expected to consider on Monday afternoon reflects some recommendations from a subcommittee that evaluated potential referrals.

The Jan. 6 select committee is preparing to vote on urging the Justice Department to pursue at least three criminal charges against former President Donald Trump, including insurrection.

The report that the select panel is expected to consider on Monday afternoon, described to POLITICO by two people familiar with its contents, reflects some recommendations from a subcommittee that evaluated potential criminal referrals. Among the charges that subcommittee proposes for Trump: 18 U.S.C. 2383, insurrection; 18 U.S.C. 1512(c), obstruction of an official proceeding; and 18 U.S.C. 371, conspiracy to defraud the United States government.

It’s unclear whether the select committee’s final report will recommend additional charges for Trump beyond the three described to POLITICO, or whether it will urge other criminal charges for other players in Trump’s bid to subvert his 2020 loss. The document, according to the people familiar, includes an extensive justification for the recommended charges.

To justify incitement of insurrection, the report references U.S. District Court Judge Amit Mehta’s February ruling saying Trump’s language plausibly incited violence on Jan. 6, 2021, when a mob of his supporters besieged the Capitol in a bid to disrupt congressional certification of his loss to Joe Biden. The report also cites the Senate’s 57 votes in last year’s impeachment trial, Trump’s second, to convict him on an “incitement of insurrection” charge passed by the House.

The select panel’s report also notes that, in order to violate the insurrection statute, Trump did not need an express agreement with rioters — but rather, simply needed to provide “aid or comfort” to them.

A select committee spokesperson declined to comment.

A Trump spokesperson denounced the committee’s plans.

“The January 6th un-Select Committee held show trials by Never Trump partisans who are a stain on this country’s history,” said Trump spokesperson Steven Cheung in a statement. “This Kangaroo court has been nothing more than a Hollywood executive’s vanity documentary project that insults Americans’ intelligence and makes a mockery of our democracy.”

DOJ, which is already pursuing a criminal probe of Trump’s Jan. 6-related actions, is not required to consider referrals from Congress, which have no legal weight. However, the select committee plans to act in the hopes that lawmakers’ input can influence prosecutorial decision-making. Panel chair Bennie Thompson (D-Miss.) has also raised the possibility of referrals to outside entities like bar associations for the constellation of lawyers involved in election subversion efforts.

• Highlights: Jan. 6 panel ends with unanimous subpoena for Trump testimony

The panel’s lawmakers have debated the value of referrals at length through the end of their investigation. But in recent days, they’ve made the referrals into a play for history and have stressed their symbolic nature, regardless of what DOJ or other entities might do.

Dec. 14

Washington Post, Opinion: Why Kavanaugh partying with right-wing conservatives raises ethical questions, Ruth Marcus, right, Dec. 14, 2022 (print ed.). I’m not worked up about Justice Brett M. Kavanaugh’s appearance at a conservative-studded holiday party. But the episode serves to highlight a disturbing trend among the justices, more prevalent on the right than the left: funneling their public appearances into compatible ideological silos.
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Some background on Kavanaugh’s partying: Politico reported that the justice attended a Christmas party last weekend at the home of American Conservative Union chair Matt Schlapp. The two men worked together at the George W. Bush White House; Schlapp went to bat for Kavanaugh during his contentious confirmation hearings in 2018; and Kavanaugh has been to Schlapp’s party in previous years.

This time, though, it created some fuss. “Kavanaugh’s Holiday Party Appearance Renews Supreme Court Ethics Questions,” Bloomberg News reported. The party featured some of the usual Washington types, including journalists Ben Terris of The Post, Steve Holland of Reuters and Greta Van Susteren, along with members of what President Biden might call the ultra-MAGA crowd: Florida Rep. Matt Gaetz and former Trump advisers Sebastian Gorka and Stephen Miller. America First Legal Foundation, Miller’s new organization, has filed friend-of-the-court briefs in cases pending at the high court.

I think it might have been the better part of valor for Kavanaugh to send regrets this year, but my head is not exploding here. Even Supreme Court justices get to have social lives, and the Kavanaughs and Schlapps are longtime friends. Justices aren’t responsible for vetting their hosts’ guest lists. And Kavanaugh’s mere presence at an event at which another attendee filed an amicus brief hardly seems problematic.

So where does discretion come in? This is a tough time for the court, ethics-wise. The institution doesn’t need another headache, on top of the still-unsolved, as far as we know, leak of the abortion draft opinion in early May and reporting more recently about an effort by a religious right organization to curry favor with conservative justices. A conservative justice partying with conservative activists feeds into a perception of the court, fairly or not, as an institution tainted with partisanship.

The Code of Judicial Conduct for federal judges, which doesn’t bind Supreme Court justices, has this to say on the subject: “A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.”

Which gets to the more concerning development: the tendency among justices to speak to, or attend events sponsored by, groups and institutions with which they are ideologically attuned. This is not solely a conservative phenomenon — Justices Sonia Sotomayor, Elena Kagan and, before his retirement, Stephen G. Breyer, have given speeches to the liberal American Constitution Society. But the conservative justices — with the distinct exception of Chief Justice John G. Roberts Jr. — seem lately inclined to favor friendly institutions, religious and conservative organizations.

The contrast with liberal justices is striking. Over the past two years, for instance, Sotomayor spoke at a children’s book festival, at a nonpartisan Connecticut speakers forum, remotely to a group of San Diego lawyers and, with Barrett, to the Ronald Reagan Foundation — as well as to a Chicago university dedicated to educating “socially conscious citizens” and the American Constitution Society.

I’m all for justices, liberal or conservative, explaining themselves and the court’s operations to the public. And perhaps some or all of the conservative justices fear that appearing in a more neutral and traditional venue, such as a law school, would open them to criticism or heckling. That’s not in any way far-fetched.

Yet justices send a message, intended or not, when they confine their appearances to like-minded audiences: These are our people, this is our team, these are our beliefs.

Dec. 11

Washington Post, Opinion: There is a path to save the Supreme Court from itself, Jennifer Rubin, right, Dec. 11, 2022. The Supreme Court’s right-wing majority has been on a tear lately.

In the last week alone, Justice Samuel A. Alito Jr. made inappropriate wisecracks during oral arguments about whether a web designer can object to working with gay couples, and several right-wing justices seriously considered adopting a once-fringe legal theory that could upend how state courts oversee elections. Allegations also recently emerged that in 2014, Alito leaked the outcome in the court’s Hobby Lobby/ case to a group of right-wing donors (which Alito denied).

Fortunately, there is no shortage of ideas to return sanity to the court. And there has never been a better time to advance them to the public.

The stakes couldn’t be higher. The court’s pattern of self-inflicted wounds erodes its credibility and undermines its stature. As the progressive Brennan Center for Justice put it, “The lack of structural democratic accountability is much of the reason why we ended up with a Court so out of step with the public and with mainstream legal thought. But it could also spell a crisis for the Court’s own legitimacy, spurring new attention to the broken system that gave us today’s radical supermajority and garnering momentum for efforts at Court reform.”

The good news is that there has been a concerted push to make what used to be a wonkish debate in legal circles about judicial reform a central political issue. Three main avenues for reform have emerged:

Eliminate lifetime tenure for justices

Democracy is not well served when the same pack of out-of-touch Ivy League law school alumni can dominate the bench for decades simply because of Senate gamesmanship and politically timed retirements. Establishing terms limits could ameliorate those practices. It could also help detoxify confirmation hearings and end the unseemly practice of justices purportedly misrepresenting their views simply to be confirmed.

Implement ethics rules for justices

Ethical guardrails already exist for federal courts in the form of the Code of Conduct for U.S. Judges, as Glenn Fine explains in the Atlantic. This includes “conduct both on and off the bench, including requirements that judges act at all times to promote public confidence in the integrity and impartiality of the judiciary.” But the Supreme Court’s adherence to the code has no means of oversight or enforcement.

Expand the court

A recent Marquette University Law School national poll showed that 51 percent of Americans (including 72 percent of Democrats) favored expanding the number of justices on the Supreme Court. And unlike term limits, which might require a constitutional amendment to achieve, there is no dispute that Congress has the power to enlarge the court.

The number of seats on the high court is not set in stone. It was set at nine when the nation had nine circuits (there are now 13). And Republicans effectively reduced the number to eight when they refused to consider President Barack Obama’s nomination of Merrick Garland to the court in March 2016.

Members of the presidential commission on the Supreme Court were candid about this reform: Court expansion would be the most effective means to dilute the influence of the current right-wing majority. The commission also noted that it could provide more diversity on our highest court, which is very small compared with those of other developed democracies.

Democracy itself has been threatened by politically compromised justices acting far outside the bounds of neutral referees.

Dec. 10

Washington Post, ‘Stealth’ efforts to influence Supreme Court discussed by Judiciary Committee, Ann E. Marimow and Emma Brown, Dec. 10, 2022 (print ed.). The Rev. Robert Schenck, right, a former antiabortion activist, testified as Democrats and transparency advocates seek ethics overhaul.

Evangelical minister Robert L. Schenck recruited wealthy Christian couples to serve as “stealth missionaries” at the Supreme Court for about two decades, forging friendships with conservative justices to “bolster” their views, particularly on abortion, Schenck told the House Judiciary Committee on Thursday.

“Our overarching goals were to gain insight into the conservative justices’ thinking and to shore up their resolve to render solid, unapologetic opinions,” Schenck said, describing the mission of the influence campaign he dubbed “Operation Higher Court.”

In written testimony, Schenck, who in recent years has broken with the religious right over issues including abortion and gun rights, said he encouraged his recruits to use tactics like donations to the Supreme Court Historical Society to meet justices — and to parlay those encounters into deeper relationships to achieve their objectives. Some recruits wrote amicus briefs in cases before the court, his testimony says.

The testimony included allegations Schenck has made previously to Rolling Stone, Politico and the New York Times.

He was subpoenaed to testify as part of an effort by Democrats on the Judiciary Committee to strengthen ethics rules for justices, who — unlike lower court judges — are not bound by any code of conduct and are responsible for policing themselves. Critics say that structure allows for ethical loopholes that undermine public faith in the court’s independence.

Committee Chairman Jerrold Nadler (D-N.Y.), left, said Schenck’s planned testimony illustrates that “Supreme Court justices cannot effectively police” their own conduct and that without stronger disclosure requirements and a code of conduct justices can “accept overtures from those seeking to influence the court with little to no transparency.”

But Rep. Jim Jordan (R-Ohio) — who is likely to become committee chairman when his party assumes control of the House in January — disputed the need for the hearing, dismissing some of Schenck’s allegations as “fake.” Instead of listening to Schenck, Jordan said, the committee should be investigating the unprecedented public leak this spring of a draft of the Dobbs v. Jackson Women’s Health Organization decision, which overturned the constitutional right to an abortion established by Roe v. Wade.

In May, the House Judiciary Committee approved a bill that would require the Supreme Court to adopt a code of conduct and stronger disclosure standards for gifts and income any justice receives. The bill, which has not been voted on by the full House, would also strengthen recusal requirements and require anyone filing an amicus brief to disclose details about who funded and participated in drafting those briefs. A companion measure is awaiting action in the Senate.

Donald K. Sherman, of the watchdog group Citizens for Responsibility and Ethics in Washington, told the committee Thursday that reform is badly needed for rules governing gifts to Supreme Court justices, recusals, spousal conflicts of interest and outside speaking engagements.

 Dec. 9

Justice Department Special Prosecutor Jack Smith, left, and former President Donald Trump, shown in a collage via CNN.

The warrant authorizing the search of former president Donald Trump’s home said agents were seeking documents possessed in violation of the Espionage Act. 

New York Times, Judge to Hear Justice Dept. Contempt Request in Trump Documents Case, Alan Feuer and Maggie Haberman, Dec. 9, 2022. The department wants a representative of Donald Trump to swear under oath that there are no more classified documents at any of his properties.

A federal judge in Washington was set to hear arguments at a closed-door hearing on Friday about whether to force a representative of Donald J. Trump’s presidential office to swear under oath that there are no more classified documents at any of Mr. Trump’s properties, according to two people familiar with the matter.

The judge, Beryl A. Howell, right, is also being asked to decide whether to impose financial penalties or issue a contempt finding if no one from Mr. Trump’s office agrees to formally vow that, to the best of their knowledge, all of the classified materials he took from the White House when he left office last year have been returned to the government.

The hearing, in Federal District Court in Washington, is being held at the request of federal prosecutors who asked Judge Howell in recent days to declare Mr. Trump in contempt of court for failing to obey a grand jury subpoena that was issued in May seeking the return of all of the classified records in his office’s possession.

The request by the government, first reported on Thursday by the Washington Post, came after months of frustration with the former president and his lawyers, who have repeatedly made assurances to prosecutors that the sensitive materials had all been returned — only to find out there were more.

No matter what Judge Howell decides, the fact that she has been asked to mull a contempt finding suggests that the Justice Department has taken a newly aggressive stance toward Mr. Trump’s long-delayed response to the government’s efforts to retrieve a trove sensitive records that he took from the White House to Mar-a-Lago, his private club and residence in Florida.

Washington Post, Opinion: The Supreme Court’s student loan case tests a president’s powers, Ruth Marcus, right, Dec. 9, 2022. A president, invoking broad emergency powers after legislative efforts fail, adopts a program that will cost billions. The administration then argues that its action isn’t subject to court review.

Sounds Trumpy, no?

It is, actually. Back in 2019, Donald Trump demanded that Congress appropriate nearly $6 billion to build his border wall. When lawmakers coughed up only about $1.4 billion for pedestrian fencing, Trump invoked his emergency powers to declare that “a national emergency exists at the southern border” and said he was diverting $3.6 billion from other military construction projects to build the wall.

A federal appeals court decreed that move violated the constitutional separation of powers. “Particularly in the context of this case, where Congress declined to fund the very projects at issue and attempted to terminate the declaration of a national emergency (twice), we cannot interpret the statute to give the executive branch unfettered discretion to divert funds to any land it deems under military jurisdiction,” the court wrote.

Democratic lawmakers cheered. “These decisions uphold our Founders’ vision for our democracy: three co-equal branches of government with an executive branch that is subject to the laws passed by Congress,” said House Speaker Nancy Pelosi (D-Calif.).

Now the White House is in Democratic hands, and what once looked Trumpy is turning out to be, well, Bidenesque — except with a price tag 100 times larger than Trump’s. In August, citing its powers under the emergency presented by the pandemic, the administration announced plans to forgive up to $20,000 in student loan debt; the Congressional Budget Office has estimated that the loan forgiveness would cost the Treasury $400 billion.

Last week, the Supreme Court rebuffed the Biden administration’s bid to let the program proceed. Instead, it agreed to hear the case on an accelerated schedule, in February. Whatever you think about student loan forgiveness — and there are serious doubts about its wisdom — you should be glad it’s getting this scrutiny.

There are two difficult questions of law and policy embedded in the case, Biden v. Nebraska: one about the scope of presidential emergency authority; the other about who has legal standing to challenge presidential actions. Both matter.

During the pandemic, both the Trump and Biden administrations paused the requirement to repay federally held student loans; that move alone has cost the government more than $100 billion. In August, the Biden administration said loan repayments would resume. But, citing the continued economic toll of the pandemic, it instituted a forgiveness plan of up to $10,000 in debt for those borrowers with incomes up to $125,000 and up to $20,000 for Pell Grant recipients.

As authority for this action, the Biden team cited the Heroes Act, first passed in the aftermath of the Sept. 11, 2001, attacks; the original idea was to make sure service members didn’t end up defaulting on their student loans while serving their country.

The law gives the Education Department authority to “waive or modify any statutory or regulatory provision” involving student loans “as the Secretary deems necessary in connection with a war or other military operation or national emergency” — including to protect borrowers against being “placed in a worse position financially in relation to that financial assistance.”

The administration says its plan “falls squarely within the plain text of the Secretary’s statutory authority. Indeed, the entire purpose of the HEROES Act is to authorize the Secretary to grant student-loan-related relief to at-risk borrowers because of a national emergency — precisely what the Secretary did here.”

The six states challenging the administration’s effort say relying on the pandemic “is a pretext to mask the President’s true goal of fulfilling his campaign promise to erase student-loan debt.” The law’s purpose, they argue, “is to keep certain borrowers from falling into a worse position financially in relation to their student loans. Yet the Secretary uses it here to place tens of millions of borrowers in a better position by cancelling their loans en masse. The Act does not allow the Secretary to effectively transform federal student loans into grants.”

Washington Post, Va. Supreme Court overrules judge who booted progressive prosecutor off case, Salvador Rizzo, Dec. 9, 2022 (print ed.). The Supreme Court of Virginia handed a victory to Loudoun County Commonwealth’s Attorney Buta Biberaj (D) on Thursday in her dispute with a circuit court judge, ruling that the judge had incorrectly “divested her of her constitutional authority to prosecute” a teenager accused in several robberies without first hearing arguments on the matter.

Biberaj was reinstated as the prosecutor in the case of Kevin Enrique Valle, who was 19 years old when he was accused last year of robberies in several Northern Virginia counties and struck a deal with Biberaj’s office to plead guilty.

Circuit Court Judge James E. Plowman Jr. had issued an order in June disqualifying Biberaj’s office from the case, accusing prosecutors of hiding details from Valle’s criminal and juvenile record to “sell” a plea deal that called for six months in prison for nonviolent robbery charges.

Plowman cited his “inherent authority” as a judge and appointed the Fauquier County Commonwealth’s Attorney’s Office as a substitute. Biberaj challenged the move in the Supreme Court and said her opponents were “trying to subvert the will of the voters.” Some legal experts described the judge’s actions — disqualifying Biberaj and all 23 lawyers in her office from the case without notice or a hearing — as extraordinary.

Biberaj told The Washington Post that the Virginia Supreme Court’s ruling “fully vindicates what we did in that case.” She said the Virginia State Bar, an agency under the state Supreme Court, separately dismissed an ethics complaint against her office that was triggered by Plowman’s order in the Valle matter.

“It just lets the court know that we have a certain responsibility, and as an elected official, our community has a certain expectation that we are representing them,” Biberaj said.

Dec. 8

New York Times, Opinion: The Supreme Court Is Turning Into a Court of First Resort, Jamelle Bouie, right, Dec. 8, 2022 (print ed.). Last week, the Supreme Court granted a writ of certiorari “before judgment” in Biden v. Nebraska, which will determine the legality of the president’s student loan debt relief program.

What this means is that the court will hear this case on the merits before it makes its way through lower federal courts of appeal. This is unusual.

Traditionally, the Supreme Court hears a case only after it has gone through a federal trial court (the “district” court) and a federal appeals court, except for cases where it has original jurisdiction. As the legal scholar Steve Vladeck notes in an article on this subject in his Substack newsletter, “The longstanding statutory and normative preference is for appeals to be taken only after ‘final judgments,’ i.e., when all of the factual and legal issues have been resolved to the maximum extent possible.”

As the Supreme Court itself has often said in its own opinions, it is a “court of review, not first view.”

In 1925, Congress explicitly gave the Supreme Court the power to be a court of first view as part of a package of reforms meant to reduce the court’s workload. But in keeping with tradition, it used this authority sparingly. From 1925 to 1988, the court issued certiorari before judgment in just a handful of the cases it heard during that period. And from 1988, when Congress made additional reforms to the Supreme Court’s appellate jurisdiction, to 2019, the court granted certiorari before judgment in three cases: Clark v. Roemer in 1991, Gratz v. Bollinger in 2002 and United States v. Fanfan in 2004.

Biden v. Nebraska marks the 18th time since 2019 that the court has granted certiorari before judgment. It is, as Vladeck writes, a “remarkable shift.”

He hazards a few guesses as to why the court has made this change. Perhaps it is a response to the rise of nationwide injunctions from district courts (although this accounts for only five of the 18 cases in which the court has granted certiorari before judgment). Perhaps it is a response to the rise of state lawsuits against the federal government, although, again, only a few of the cases involve the states as plaintiffs.

Or maybe it’s just a sign that the justices are in a “hurry” and have a “lower bar when it comes to the kind of ‘emergency’ that justifies such an early-stage intervention.”

Washington Post, Inmates knew of Whitey Bulger prison transfer before he arrived, report finds, Perry Stein, Dec. 8, 2022 (print ed.). An inspector general’s investigation found ‘incompetence’ and policy ‘deficiencies’ contributed to Bulger’s death in prison.

Bureaucratic incompetence and confusing policies contributed to the death of notorious Boston mobster James “Whitey” Bulger, right,  less than 12 hours after officials transferred him from a prison in Florida to another in West Virginia, according to a report released Wednesday from the Justice Department’s inspector general.

The inspector general determined that security protocols were breached and that many inmates knew Bulger would be arriving before his transfer, with some reportedly betting money on how long he would survive once he arrived.

Bulger, who used a wheelchair and had serious heart problems, died at the age of 89 in October 2018. He was found badly bludgeoned in his prison bed. Three people have been charged in connection with his death.

Inspector General Michael E. Horowitz, left, wrote in the report that he found no evidence that Bureau of Prisons staff intentionally tried to put Bulger in harm’s way, though the report does not serve as a criminal investigation.

Whitey Bulger, Boston crime boss and elusive fugitive, dead in prison at 89

Ultimately, the lengthy report found that there were missteps at every step of the transfer and that existing policies were confusing and failed to protect inmates. The inspector general recommended that at least six Bureau of Prisons employees be disciplined for their actions leading up to the killing of Bulger.

“The fact that the serious deficiencies we identified occurred in connection with a high-profile inmate like Bulger was especially concerning given that the BOP would presumably take particular care in handling such a high-profile inmate’s case,” the report reads. “We found that did not occur here, not because of malicious intent or failure to comply with BOP policy, but rather because of staff and management performance failures; bureaucratic incompetence; and flawed, confusing, and insufficient policies, and procedures.”

Bulger, the report found, should never have been transferred to U.S. Penitentiary Hazelton in West Virginia because it was not designated as a medical facility equipped to meet his significant needs.

The report also found emails and at least one phone record showing how Hazelton inmates discussed Bulger’s arrival before his transfer — even though it’s against policy to release this information for security reasons. All the while, many of staff members interviewed said they did not know who he was when he transferred so did not take any additional precautions.

“If i [sic] dont [sic] call you tomorrow than we are locked down for probably 30 days cause we got word whitey bulger [sic] is coming to the yard tonight,” one Hazelton inmate wrote to someone before Bulger had arrived.

Bulger’s reign as Boston’s most brutal gangster spanned three tumultuous decades. He was an FBI informant, recruited to snitch on his Mafia rivals, and he later landed on the bureau’s Most Wanted list after fleeing ahead of an impending grand jury indictment. During his time as a fugitive, Bulger prompted a congressional inquiry and inspired Hollywood villains. He spent more than 16 years on the run before he was arrested in California in 2011.

He served much of his sentence at U.S. Penitentiary Coleman II in Florida. But officials there wanted him transferred after he threatened a nurse. Because of that, the report said, he spent eight months in what was could essentially be considered solitary confinement. Toward the end of his time at Coleman, he told a mental health worker during a suicide risk assessment that he had lost the will to live.

Officials, according to the report, failed to properly document his health issues when they filled out the paperwork to transfer him.

When Bulger filled out paperwork for the transfer, he said that he wanted to be in the general population instead of in solitary. He also said that he was not an FBI informant — something that was false and should have been caught by officials, the report said. Inmates reportedly knew of this and started calling him a “rat” for about an hour after he arrived.

New York Times, Border Patrol Agent Found Guilty of Killing Four Women, Edgar Sandoval, Dec. 8, 2022 (print ed.). Juan David Ortiz, a former supervisory intelligence officer on the border in South Texas, faces life in prison for the murder convictions.

A jury in San Antonio convicted a former Border Patrol agent on Wednesday in the shooting deaths of four women he had encountered in the city of Laredo.

The jury returned its verdict after five hours of deliberations, finding Juan David Ortiz, 39, a former supervisory intelligence officer with the U.S. Border Patrol, guilty of capital murder after a nearly two-week trial. Mr. Ortiz faces life in prison.

Prosecutors told jurors that Mr. Ortiz had picked up prostitutes over the course of 12 days in the fall of 2018 and had taken them to a remote area. The prosecutors said he used his service weapon to kill them.

The killings rattled the border city of Laredo and led to an intense manhunt. Investigators caught a break in the case after a woman who worked as a prostitute told the police that a client had threatened her with a gun and that she narrowly escaped with her life. The woman, Erika Peña, identified her attacker as Mr. Ortiz.

Relatives of the victims — Melissa Ramirez, Claudine Anne Luera, Guiselda Alicia Cantu and Janelle Ortiz — attended the hearings wearing T-shirts with images of their loved ones. At times they cried loudly when they heard graphic descriptions of the women’s last moments.

The prosecutor, Isidro Alaniz, said during closing arguments that Mr. Ortiz targeted his victims because he wanted to “clean up the streets.”

“Mr. Ortiz was a serial killer then and is a serial killer now,” Mr. Alaniz said. “Cold, callous, calculating, just like that. It is terrifying to have the enemy within the ranks of law enforcement.”

Joel Perez, who represented Mr. Ortiz, described his client to jurors as a stellar law enforcement agent, husband and father of three. Mr. Perez said his client had denied wrongdoing and only confessed because of coercion after nine hours of grueling questioning by the police.

“Police officers have a lot of power and we have to have checks and balances on them,” Mr. Perez told the jury in a closing argument. “It was improper inducement. He involuntarily gave that statement.”

Dec. 7

JFK Facts, From That D.C. Press Conference on the CIA and Oswald, Plus a New JFK Poll, Jefferson Morley, right, Dec. 7, 2022. Judge Tunheim and former CIA officer comment on CIA's pre-assassination interest in the so-called 'Lone Gunman.'

Here’s the Dec. 6 Mary Ferrell Foundation press conference that’s making news at home and abroad..

In my presentation I add more detail to my Nov. 22 post, “Yes, There Is Smoking Gun” laying out what we know about CIA operational activities around accused assassin Lee Harvey Oswald in the summer and fall of 1963 and where the rest of the story is concealed.

Judge John Tunheim, former chair of the Assassination Records Review Board, says that the 44 CIA documents I seek should be made public on Dec. 15.

Former CIA officer Rolf Mowatt-Larssen also comments.

Washington Post, Supreme Court majority questions massive shift of election authority, Robert Barnes and Ann E. Marimow, Dec. 7, 2022. A majority of Supreme Court justices on Wednesday seemed reluctant to conclude that state legislators may manipulate congressional district lines and set federal voting rules without any oversight from state courts, after nearly three hours of debate over what would be a fundamental change in the way elections are conducted.

But some justices also indicated they believed state courts could be restrained from becoming too big a player in election decisions — at some point when “the state court would not be acting as a court but would be acting more as a legislature,” in the words of Justice Amy Coney Barrett.

Under the theory advanced by North Carolina’s Republican legislative leaders, state lawmakers throughout the country could have exclusive authority to structure federal elections, subject only to intervention by Congress. The “independent state legislature theory” holds that the U.S. Constitution gives that power to lawmakers even if it results in extreme partisan voting maps for congressional seats and violates voter protections enshrined in state constitutions.
 
The case could have a major influence on results in the 2024 election. It has drawn attention in part because of the nation’s polarized politics, where former president Donald Trump and his allies still advocate to overturn the 2020 election, and the midterms showed that control of Congress can depend on the drawing of congressional district lines.

The court’s three most conservative justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — seemed receptive to a reading of the Constitution in line with that of the North Carolina legislators. The court’s liberals — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — did not.

Chief Justice John G. Roberts Jr. and Justices Brett M. Kavanaugh and Barrett seemed more conflicted, and perhaps looking for ways to ensure that state courts do not take over the supervision of election processes in which legislatures are the primary actors.

New York Times, Opinion: The Supreme Court Is Turning Into a Court of First Resort, Jamelle Bouie, right, Dec. 7, 2022. Last week, the Supreme Court granted a writ of certiorari “before judgment” in Biden v. Nebraska, which will determine the legality of the president’s student loan debt relief program.

What this means is that the court will hear this case on the merits before it makes its way through lower federal courts of appeal. This is unusual.

Traditionally, the Supreme Court hears a case only after it has gone through a federal trial court (the “district” court) and a federal appeals court, except for cases where it has original jurisdiction. As the legal scholar Steve Vladeck notes in an article on this subject in his Substack newsletter, “The longstanding statutory and normative preference is for appeals to be taken only after ‘final judgments,’ i.e., when all of the factual and legal issues have been resolved to the maximum extent possible.”

As the Supreme Court itself has often said in its own opinions, it is a “court of review, not first view.”

In 1925, Congress explicitly gave the Supreme Court the power to be a court of first view as part of a package of reforms meant to reduce the court’s workload. But in keeping with tradition, it used this authority sparingly. From 1925 to 1988, the court issued certiorari before judgment in just a handful of the cases it heard during that period. And from 1988, when Congress made additional reforms to the Supreme Court’s appellate jurisdiction, to 2019, the court granted certiorari before judgment in three cases: Clark v. Roemer in 1991, Gratz v. Bollinger in 2002 and United States v. Fanfan in 2004.

Biden v. Nebraska marks the 18th time since 2019 that the court has granted certiorari before judgment. It is, as Vladeck writes, a “remarkable shift.”

He hazards a few guesses as to why the court has made this change. Perhaps it is a response to the rise of nationwide injunctions from district courts (although this accounts for only five of the 18 cases in which the court has granted certiorari before judgment). Perhaps it is a response to the rise of state lawsuits against the federal government, although, again, only a few of the cases involve the states as plaintiffs.

Or maybe it’s just a sign that the justices are in a “hurry” and have a “lower bar when it comes to the kind of ‘emergency’ that justifies such an early-stage intervention.”

New York Times, Supreme Court Hears Case That Could Transform Federal Elections, Adam Liptak, Dec. 7, 2022. The “independent state legislature theory” would give state lawmakers nearly unchecked power over federal elections. Listen to live audio.

The Supreme Court is hearing arguments on Wednesday about whether to adopt a legal theory that would radically reshape how federal elections are conducted. The theory would give state legislatures enormous and largely unchecked power to set all sorts of election rules, notably by drawing congressional maps warped by partisan gerrymandering.

The Supreme Court has never endorsed the “independent state legislature” theory, but four of its conservative members have issued opinions that seemed to take it very seriously.

The theory is based on a reading of the Constitution’s Elections Clause, which says: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”

Proponents of the strongest form of the theory say this means that no other organ of state government can alter a legislature’s actions on federal elections. They say that state supreme courts cannot require state laws to conform to state constitutions, that governors may not use their veto power to reject bills about federal elections, that election administrators may not issue regulations adjusting legislative enactments to take account of, say, a pandemic and that voters may not create independent redistricting commissions to address gerrymandering.

Washington Post, Polygamist leader claimed 20 ‘wives,’ including minors, FBI says, Marisa Iati, Dec. 6, 2022 (print ed.). The self-proclaimed prophet claimed it was “impressions of Heavenly Father’s will” that spurred him to force his followers, including children, to engage in sexual acts, according to new allegations from the FBI.

Samuel Rappylee Bateman, right, a leader of an offshoot of the Fundamentalist Church of Jesus Christ of Latter-day Saints, allegedly counted his own daughter and other juvenile girls among his more than 20 “wives.” Many of them were younger than 15, an FBI agent wrote in a court document filed Friday.

Bateman’s alleged foray into polygamy began in 2019, when he was married to one woman and had a daughter who was roughly 14. While in the car one day, the daughter later told investigators, Bateman said that he felt like she was his wife and that he would make her have a child if his feelings turned out to be right.

When Bateman told his actual wife, she moved out of their home with their daughter and got a restraining order against him, according to the court filing, previously reported by the Salt Lake Tribune. But Bateman allegedly continued to tell his daughter that he wanted to kiss and touch her. From then on, the FBI agent wrote, he accumulated wives.

Bateman, 46, is in federal custody in Arizona on obstruction of justice charges for allegedly asking followers to delete his Signal phone app, which he used to communicate with them and his wives. He has pleaded not guilty to that charge and to state-level child abuse charges.

Bateman has not been charged with sex crimes, although the FBI agent said there is probable cause to believe that he engaged in criminal sexual activity with minors in 2020 and 2021. His attorneys did not respond to a message seeking comment Monday.

The FBI affidavit, filed in the Eastern District of Washington, paints a picture of a long-running setup in which Bateman tried to use God as a defense for repeatedly manipulating his so-called wives and some of his male followers into engaging in sexual acts. The allegations follow the escape — and subsequent discovery — of several girls who had been in state custody after being removed from the rest of Bateman’s roughly 50 followers.

Two people who talked with investigators — a woman who tried to help members of Bateman’s group and her husband, who was filming a documentary — told them that Bateman had driven to their home on the Arizona-Utah border in late 2020. He allegedly arrived in a large SUV filled with women and girls, the youngest of whom was roughly 9, and introduced them all as his wives.

In a separate incident, the FBI agent wrote, a recording captured Bateman saying God had told him to give “his girls’ virtue” to some of his male followers by forcing them to have sex while others watched.

 Dec. 6

New York Times, Supreme Court to Hear Arguments on Far-Reaching Elections Case, Michael Wines, Dec. 6, 2022. In a North Carolina case, the court is being asked to decide whether to expand the authority that state legislatures have over election maps and voting laws.

It is a case “with profound consequences for American democracy,” said J. Michael Luttig, a former federal appeals court judge long a hero to conservatives.

Chief Justice Nathan L. Hecht of the Texas Supreme Court, a Republican, has said it is “the biggest federalism issue in a long time, maybe ever.”

On Wednesday, the U.S. Supreme Court will hear arguments in Moore v. Harper, a dispute between voting rights advocates and North Carolina’s General Assembly, which is controlled by Republicans, that could drastically increase the power that state legislatures have over voting issues.

Just how much power is at issue could become clearer as the arguments play out. But there is no arguing how high the stakes are in this lawsuit. The court is being asked to decide whether state election laws and political maps passed by state legislatures — specifically, a Republican gerrymander of North Carolina’s 14 House seats that the state’s Supreme Court ruled unconstitutional this year — should continue to be subject to judicial review in state courts.

Dec. 4

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.

New York Times, A New Clash Between Faith and Gay Rights Arrives at a Changed Supreme Court, Adam Liptak, right, Dec. 4, 2022. A Colorado graphic designer says she has a First Amendment right to refuse to create websites for same-sex weddings despite a state anti-discrimination law. The court has shifted to the right since 2018 when it ruled on a similar controversy involving a baker who refused to make a wedding cake for a gay couple.

Ten years ago, a Colorado baker named Jack Phillips turned away a gay couple who had asked him for a wedding cake, saying that a state law forbidding discrimination based on sexual orientation must yield to his faith.

The dispute, a white-hot flash point in the culture wars, made it to the Supreme Court. But Justice Anthony M. Kennedy’s narrow majority opinion in 2018 did not settle the question of whether the First Amendment permits discrimination by businesses open to the public based on their owners’ religious convictions. Indeed, the opinion acknowledged that the court had merely kicked the can down the road and would have to decide “some future controversy involving facts similar to these.”

That controversy has now arrived, and the facts are indeed similar. A graphic designer named Lorie Smith, who works just a few miles from Mr. Phillips’s bakery, Masterpiece Cakeshop, has challenged the same Colorado law on the same grounds.

“He’s an artist,” Ms. Smith said of Mr. Phillips. “I’m also an artist. We shouldn’t be punished for creating consistently with our convictions.”

The basic arguments in the case, which will be argued before the Supreme Court on Monday, are as familiar as they are polarizing.

On one side are people who say the government should not force them to violate their principles to make a living. On the other are same-sex couples and others who say they are entitled to equal treatment from businesses open to the public.

Both sides say that the consequences of the court’s ruling could be enormous, though for different reasons. Ms. Smith’s supporters say a ruling for the state would allow the government to force all sorts of artists to state things at odds with their beliefs. Her opponents say a ruling in her favor would blow a hole through anti-discrimination laws and allow businesses engaged in expression to refuse service to, say, Black people or Muslims based on odious but sincerely held convictions.

The court that will hear those arguments has been transformed since the 2018 decision. After Justice Kennedy’s retirement later that year and Justice Ruth Bader Ginsburg’s death in 2020, the Supreme Court has shifted to the right and been exceptionally receptive to claims of religious freedom.

Moreover, when the Supreme Court overturned Roe v. Wade in June, Justice Clarence Thomas filed a concurring opinion calling for the elimination of the right to same-sex marriage. Supporters of gay rights fear that a ruling for Ms. Smith will undermine that right, marking the marriages of same-sex couples as second-class unions unworthy of legal protection.

November

Nov. 30

Washington Post, Opinion: The court’s supremely obtuse response to its ethical problems, Ruth Marcus, right, Nov. 30, 2022. The Supreme Court sent a two-page letter to Democratic lawmakers looking into allegations of a leak by Justice Samuel A. Alito Jr., left, or his wife. Words weren’t really necessary; a see-no-evil monkey emoji would have aptly summarized the court’s response.

The letter, by Ethan V. Torrey, legal counsel to the court, could scarcely have been more obtuse. The New York Times reported earlier this month the story of a conservative Ohio couple, Donald and Gayle Wright, who were deployed by a religious rights, antiabortion organization to befriend the Alitos and other conservative justices as part of an influence campaign.

The Rev. Rob Schenck, who headed the organization, said that Gayle Wright had tipped him off in advance about the outcome and authorship of a 2014 case, Burwell v. Hobby Lobby, involving religious employers’ obligations to provide contraceptive coverage. Gayle Wright and the Alitos denied any leak (Donald Wright died in 2020), but contemporaneous evidence bolsters Schenck’s claim of advance knowledge.

“Rob, if you want some interesting news please call. No emails,” Gayle Wright wrote Schenck the day after the Alitos hosted the Wrights for dinner at their Virginia home. Wright’s unconvincing explanation? “I was so excited to tell him that Justice Alito had actually gotten in his car to take me home,” she told The Post. “We wanted to talk to him and share it with him.”

The Times article, along with coverage by Politico and Rolling Stone, depicts a disturbing, coordinated effort by conservative activists to insinuate themselves into the lives of sympathetic justices via six-figure donations to the Supreme Court Historical Society and access to vacation spots such as the Wrights’ Jackson, Wyo., home.

A Supreme Court that took ethics seriously would want to get to the bottom of this smarmy arrangement. That is not, apparently, this Supreme Court.

Chief Justice John G. Roberts Jr. didn’t bother to respond to a July letter from Schenck alerting him to the episode. But a nonresponse might have been preferable to Torrey’s legalistic and defensive letter to Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.), who had asked the court about what plans it had to investigate or refine its ethics policies.

In a statement, Whitehouse and Johnson called Torrey’s letter “an embodiment of the problems at the Court around ethics issues.” This seems like a fair diagnosis. And Roberts should keep in mind: If the patient isn’t willing to take steps to heal itself, others will step in to administer the necessary medicine.

Nov. 22

Washington Post, Supreme Court denies Trump request to withhold tax returns from Congress, Robert Barnes, Nov. 22, 2022. The court’s order means that the Treasury Department may quickly hand over six years of tax records from former president Donald Trump and some of his companies to the House Ways and Means Committee.

The Supreme Court on Tuesday denied former president Donald Trump’s efforts to block the release of his tax records to a congressional committee that has sought the information for years.

The court’s order means that the Treasury Department may quickly hand over six years of tax records from Trump and some of his companies to the House Ways and Means Committee.

There were no recorded dissents in the court’s order.

Lawmakers have said they need Trump’s tax returns from his time in office to help evaluate the effectiveness of annual presidential audits. Trump has argued that Democratic lawmakers are on a fishing expedition designed to embarrass him politically.

Time is not on the side of Democrats who run the committee. The demands for the records will almost surely expire in January, when Republicans take control of the House as a result of the recent midterm elections.

“Delaying Treasury from providing the requested tax information would leave the Committee and Congress as a whole little or no time to complete their legislative work during this Congress, which is quickly approaching its end,” House general counsel Douglas N. Letter said in a filing to the court.

Trump’s lawyers said that was all the more reason to grant the request to block the release of the records. “The Congress has only a few days left on its legislative calendar,” lawyer Cameron T. Norris said in his filing. “Though a few days is enough time to improperly expose the most sensitive documents of its chief political rival, it’s not enough time to properly study, draft, debate, or pass legislation.”

Trump's early 2024 launch fails to rally GOP around him

Last month, the full U.S. Court of Appeals for the D.C. Circuit declined to review earlier rulings finding that lawmakers are entitled to the documents in the long-running legal battle. That court also refused to put the release of the papers on hold while Trump’s lawyers sought Supreme Court review.

Nov. 21

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.

New York Times, Analysis: John Roberts’s Early Supreme Court Agenda: A Study in Disappointment, Adam Liptak, Nov. 21, 2022. The chief justice said he would seek to protect the court’s credibility by encouraging narrow, unanimous rulings. That project has failed, our columnist writes.

After finishing his first term on the Supreme Court in 2006, Chief Justice John G. Roberts Jr. was feeling pretty good. The court had issued its longest run of unanimous decisions in modern history, and he was ready to sketch out an ambitious and optimistic plan for the balance of his tenure.

His goal, he told Jeffrey Rosen, a journalist and law professor, was to protect the legitimacy of the court through consensus, narrow opinions and a vision of the judicial role that had no place for partisan politics.

The interview is worth revisiting, as it remains the clearest statement of Chief Justice Roberts’s early aspirations. Over the years, he has had only fitful success in achieving them. More recently, after a term that featured sharply divided decisions on abortion, guns, climate and religion, his project is in shambles.

Chief Justice Roberts, 67, left, has served for 17 years, which is already a few years longer than the average tenure of his 16 predecessors. It is entirely possible that he will stay in his position long enough to rival his idol, Chief Justice John Marshall, who served for more than 34 years and transformed the institution’s power and prestige.

But it seems distinctly unlikely that Chief Justice Roberts will be able to prod his colleagues toward the clarity of purpose of the Marshall court, which was noted for speaking with a single voice. In 2006, though, he said he aimed to try.

• Washington Post, Opinion: The tragedy of John Roberts, Ruth Marcus

Washington Post, Analysis: Biden has appointed many judges but hasn’t recast the bench like Trump, Aaron Blake, Nov. 21, 2022. By keeping their Senate majority, Democrats can keep confirming judges. But thanks to the GOP’s 2015-2016 blockade, the makeup of the courts hasn’t shifted as substantially.

For the second election in a row, Democrats closed strong to win a tight contest for the Senate majority. Though Republicans won a narrow victory for the House, the Senate win is particularly important for Democrats for one reason: judges.

Crucially, this means Democrats could still confirm a Supreme Court justice if a vacancy arises. And even short of that, they should be able to claw back more of the ground they lost when the GOP, under President Donald Trump, overhauled the composition of the nation’s courts.

Today there is increasing emphasis on which party appointed which judges, especially when they author significant, headline-making decisions. Recently, that’s included controversial decisions from a Trump nominee in the Mar-a-Lago documents case and the Supreme Court’s overturning of Roe v. Wade, which Trump had (correctly) assured his nominees would do.

And as our politics have become increasingly partisan, judges have become an increasingly important metric of an administration’s success. Trump and then-Senate Majority Leader Mitch McConnell (R-Ky.) made a show of touting their work to revamp the federal judiciary (even as judges are supposed to be apolitical), and the Biden administration too has played up its own record-setting pace in confirming judges.

But while President Biden has appointed more judges at this point in his presidency than even Trump, that record comes with a significant caveat: While the overall numbers are somewhat larger, Biden’s ability to reshape the judiciary in his own right has been much more limited — especially at the highest levels.

Thanks to a series of variables, Trump was able to completely recast not just the Supreme Court but also overhaul the nation’s appeals courts — the most powerful judges below the nation’s highest court — by replacing judges that had been nominated by Democrats. Biden’s ability to reverse that has been stunted, and his appointees consist mostly of district court judges and replacing Democratic-nominated judges with new Democratic-nominated judges.

When Trump was elected in 2016, there were 18 more Democratic-appointed appeals court judges than Republican-appointed ones — 90 to 72.

But just two years later, that flipped. By the end of 2018, there were 16 more Republican-nominated judges — 97 to 81, a net gain of 34. Trump was able to flip three of 13 appeals court circuits from having a majority of Democratic nominees to a majority of Republican ones.

By contrast, Biden has merely reduced the deficit he inherited, from a 17-judge gap to an eight-judge gap — a net gain of nine. And only one circuit flipped back from a majority of Republican nominees to a majority of Democratic ones. There continue to be more Republican-nominated appeals court judges, 91 to 83.

Nov. 20

New York Times, Allegation of Supreme Court Breach Prompts Calls for Inquiry and Ethics Code, Jodi Kantor, Nov. 20, 2022. A minister’s claim that a major contraception decision was prematurely disclosed through a secretive influence campaign underscores the court’s lack of transparency and accountability.

Lawmakers are demanding further investigation at the Supreme Court and renewing their calls for binding ethics rules for the justices, after allegations that a landmark 2014 contraception decision was prematurely disclosed through a secretive influence campaign by anti-abortion activists.

“The first step to recovery is to admit you have a problem,” Senator Sheldon Whitehouse, Democrat of Rhode Island, wrote on Twitter. “At SCOTUS, the problems run deep.”

A New York Times report published on Saturday chronicled yearslong efforts by the Rev. Robert L. Schenck, an evangelical minister and former anti-abortion leader, and donors to his nonprofit to reach conservative justices and reinforce anti-abortion views. In 2014, he said, he obtained advance word of the outcome and the author of the decision in Burwell v. Hobby Lobby, a major case about contraception and the religious rights of corporations.

That decision — like the one leaked this spring, overturning the right to abortion — was written by Justice Samuel A. Alito Jr. Mr. Schenck said he learned the Hobby Lobby details from a donor who had dined with Justice Alito and his wife. Both the justice and the donor denied sharing the information.

“We intend to get to the bottom of these serious allegations,” Mr. Whitehouse and Representative Hank Johnson of Georgia, who respectively lead the Senate and House Judiciary courts subcommittees, wrote in a joint statement.

The revelations underscored the lack of accountability mechanisms at the Supreme Court. Unlike other federal judges, the justices are not bound by a written code of ethics; legislation that would create one is pending in Congress.

“While there are many potential solutions, here’s one that the Court could adopt in one minute: OPERATE UNDER THE SAME ETHICS RULES AS EVERY OTHER FEDERAL JUDGE,” Senator Amy Klobuchar, the Minnesota Democrat and another member of the Judiciary Committee, tweeted in response to the Times report.

The new revelations came amid an investigation by the court’s marshal into the extraordinary leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to an abortion, as well as uproar over the role of Ginni Thomas, the wife of Justice Clarence Thomas, in former President Donald J. Trump’s efforts to reverse the 2020 election results.

Nov. 19

Washington Post, Opinion: Garland’s appointment of a special counsel was cautious. But also bold, Ruth Marcus, right, Nov. 19, 2022. Trump should not sleep soundly. Attorney General Merrick Garland, shown above, on Friday made a typically cautious decision in a bold way: He appointed a special counsel to investigate former president Donald Trump, but chose a veteran lawyer known for an aggressive streak and a fast prosecutorial metabolism.

This was a step Garland didn’t want to take; he believed the department’s career lawyers were capable of doing the job with integrity and independence. But he had been anticipating — and, careful lawyer that he is, preparing for — this possibility for months.

The first shoe to drop was President Biden’s statement that he intended to run again. That wasn’t enough, in Garland’s assessment, to trigger the requirements of the Justice Department’s special counsel regulations. Even if Trump was teasing another presidential run, the department’s twin investigations — into the classified documents found at Mar-a-Lago and the Jan. 6, 2021, insurrection — could proceed as normal.

But Trump’s announcement that he would enter the 2024 race forced Garland’s reluctant hand. The rules, he believed, didn’t leave him any choice.

I thought Garland had more leeway to make the judgment call the other way, but in retrospect it seems almost inevitable that the by-the-books attorney general would go the special counsel route. Justice Department regulations provide that the attorney “will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted” and that investigation or prosecution “would present a conflict of interest for the Department or other extraordinary circumstances.”

The regulations offer an out, one I previously wrote that Garland should take: The attorney general doesn’t have to name a special counsel if he decides that would not be in the public interest. But consider: An administration headed by a president who has announced his intention to seek reelection is investigating a former president who just declared he will run again. If this does not constitute an extraordinary circumstance, what would? What lesson would not appointing a special counsel send to future attorneys general? These are serious concerns.

If Garland had a mission on leaving the bench to return to Justice, it was to repair the department’s reputation for independence and integrity, battered after four years of Trump administration meddling, and to reassure its demoralized troops. Naming a special counsel was never going to assuage the concerns of Trump partisans that the Biden administration is out to get him, as the immediate reaction from Trumpworld underscored. Trump denounced the effort to take any whiff of politics out of the decision-making as “the worst politicization of justice in our country.” A Trump campaign spokesperson called the announcement “a totally expected political stunt by a feckless, politicized, weaponized Biden Department of Justice.”

But Garland’s goal was not to persuade the unpersuadable. It was, in the familiar language of the law, aimed at how a reasonable person would perceive the fairness of the investigation, and whether a reasonable person would think a special counsel was warranted under the facts at hand and the language and spirit of the regulations. It was telling that in this regard, Garland did not acknowledge that investigating Trump constituted a conflict of interest for the department — just that the circumstances had become extraordinary.

“I strongly believe that the normal processes of this department can handle all investigations with integrity,” Garland said. “And I also believe that appointing a special counsel at this time is the right thing to do.”

This is where the bold part comes in: Special counsels usually have big names. Former FBI director Robert S. Mueller III, tapped to oversee the Trump-Russia probe, is the most recent such example. History offers others: Harvard Law School professor Archibald Cox to conduct the Watergate investigation as special prosecutor; former U.S. attorney Robert Fiske and then former appeals court judge Kenneth Starr to handle the Whitewater investigation as independent counsels. They came to the job with a public reputation that, at least in theory, lent credibility to their oversight.

Jack Smith, right, Garland’s choice, is decidedly low profile. I spoke with a number of former prosecutors who not only didn’t know Smith — they hadn’t even heard of him. But Smith, a longtime federal prosecutor who has been working at The Hague investigating war crimes in Kosovo, offers advantages that the boldface names don’t. He knows how the department works. He knows how to speed an investigation along. “Stop playing with your food,” Mueller used to instruct hand-wringing prosecutors. Smith is, by all accounts, no food-player. And he offers a potential counter-balance to Garland’s innate cautiousness; hard-charging is the word that comes up in speaking with former colleagues.

“Jack Smith makes me look like a golden retriever puppy,” tweeted Andrew Weissmann, the famously aggressive former Enron and Mueller prosecutor who worked with Smith for years in the federal prosecutor’s Brooklyn office.

One example of Smith’s inclination to aggressiveness: the 2011 decision to charge former North Carolina senator John Edwards for accepting illegal presidential campaign contributions to help support his mistress. This was a stretch, as I wrote at the time, and the subject of controversy within the department. Smith, the head of the department’s Public Integrity Section, pressed to indict. The case ultimately fizzled as a jury acquitted Edwards on one count and deadlocked on five others; the department chose not to seek a retrial.

“For those concerned that the appointment of a Special Counsel will delay things: just the opposite,” Weissmann wrote. “Jack is a super fast, no-nonsense, and let’s-cut-to-the-chase kind of guy. And now, with less DOJ bureaucracy in decision-making, the investigations can move faster.”

That may be over-optimistic, but Trump should not sleep soundly. As a prosecutor, “you have to be able to admit that if it’s not there, it’s not there,” Smith said when he took the public integrity job in 2010. “I think that’s hard for people to do and having been a prosecutor for 15 years that is something I can do.”

Washington Post, Justice Alito denies disclosing 2014 Hobby Lobby opinion in advance, Robert Barnes, Nov. 19, 2022. Allegation against Supreme Court Justice Samuel A. Alito Jr. comes after leak of draft Dobbs abortion opinion, amid growing public questions about the high court's legitimacy.

Justice Samuel A. Alito Jr., left, denied an allegation from a former antiabortion activist that Alito or his wife disclosed to conservative donors the outcome of a pending 2014 case regarding contraceptives and religious rights.

The New York Times reported Saturday that Rob Schenck, who on his website identifies himself as a “once-right-wing religious leader but now dissenting evangelical voice,” said he was told the outcome of the case, Hobby Lobby v. Burwell, several weeks before it was announced. Schenck said a conservative donor to his organization relayed the information after a dinner with Alito, who wrote the majority opinion in the case, and the justice’s wife.

But the donor, Gayle Wright, told the Times and affirmed in an interview Saturday that the account given by Schenck was not true, and Alito issued a statement denying it as well.

“The allegation that the Wrights were told the outcome of the decision in the Hobby Lobby case, or the authorship of the opinion of the Court, by me or my wife is completely false,” Alito said.

“My wife and I became acquainted with the Wrights some years ago because of their strong support for the Supreme Court Historical Society, and since then, we have had a casual and purely social relationship,” the statement said. “I never detected any effort on the part of the Wrights to obtain confidential information or to influence anything that I did in either an official or private capacity, and I would have strongly objected if they had done so.”

How one man brought affirmative action to the Supreme Court. Again and again.

In response to questions Saturday about the denials from Alito and Wright, Schenck confirmed in a statement “the extensive details and facts” he provided in the Times account and declined to comment further.

Schenck’s allegation comes after the unprecedented leak this spring of Alito’s draft opinion upholding a restrictive Mississippi abortion law and overturning the constitutional right to abortion established in Roe v. Wade nearly 50 years earlier. The leak was a shocking breach of the court’s secretive and closely held deliberations, and Alito recently denounced it as a “grave betrayal of trust.”

The episode added to growing debate over the legitimacy and behind-the-scenes operations of the Supreme Court at a time when public approval of the court has sunk to historic lows.

Nov. 13

New York’s World Trade Center after each of the towers were hit by hijacked Boeing 767 passenger jets on Sept. 11, 2001 (Photo: Michael Foran CC by 2.0).

FloridaBulldog.org, Investigation: U.S. coughs up 9/11 Commission report on 2004 private meeting with Bush/Cheney; Bush saw no reason to pursue accountability _for failures, Dan Christensen, right, Nov. 13, 2022 (First of a two-part series).

Nearly two decades after President George W. Bush and Vice President Dick Cheney answered questions for the 9/11 Commission in a closed gathering in the Oval Office, a 31-page “summary” of what they had to say finally has been made public.

Neither Bush (shown below announcing military action against Iraq in 2003) nor Cheney was under oath during the three-hour meeting on April 29, 2004. And the summary shows it was a generally relaxed, non-adversarial and largely superficial get-together during which no _significant new insights were gleaned.

Yet the summary does yield Bush’s forceful, nonpublic opinion that he “didn’t see much point in assigning personal blame for 9/11.”

The president’s admonition, uttered as he was running for re-election, would not have played well with thousands of 9/11 survivors and the families of the murdered – who were then near top of mind with many American voters, Republicans and Democrats alike.

“It would have been pure outrage,” 9/11 widow and activist Kristen Breitweiser, shown below right on the cover of her accusatory memoir, told Florida Bulldog. “We felt that in the face of nearly 3,000 dead bodies in lower Manhattan that people would have been held accountable.”

“This document makes my blood boil,” said Sharon Premoli, who was in her office on the 80th floor of the North Tower of the World Trade Center when the first plane struck on September 11, 2001 and was later pulled from the wreckage. “That our lives were in the hands of these incompetents is chilling and [explains] why 3,000 were murdered, 6,000 injured.”

A LACK OF ACCOUNTABILITY

The lack of accountability, Breitweiser said, is exemplified by Bush’s decision to retain then-CIA boss George Tenet amid significant public criticism. “Why leave the director of the Central Intelligence Agency in place when he had utterly failed to synthesize information in the pipeline about the attacks? Is anyone surprised there was [later] bad intelligence in the war on Iraq?”

Tenet retired in July 2004. Five months later, Bush awarded Tenet the Presidential Medal of Freedom – the nation’s highest civilian honor.
Bush and TenetPresident Bush after bestowing the Presidential Medal of Freedom on retired CIA DIrector George Tenet in December 2004. Photo: Wikimedia Commons via the White House

Said Breitweiser, “Tenet is a very good example of why it was important to hold people accountable, not for political reasons, but to make the nation safe. You can’t fix problems and make sure it doesn’t happen again if you don’t have accountability. That was the families’ mandate to the commission.”

Breitweiser was a leader of the 9/11 Family Steering Committee, an organization that had pushed a reluctant Bush to create the 9/11 Commission. The steering committee urged 9/11 Commission Chair Thomas Kean and Vice Chair Lee Hamilton to ask Bush, alone and in sworn public testimony, a list of tough, probing questions, including: “Why was our nation so utterly unprepared for an attack on our own soil?” and “Why no one in any level of our government has yet been held accountable for the countless failures leading up to and on 9/11?”

Nov. 7

Washington Post, In Arizona, small tribe watches warily as Supreme Court takes up Native adoption law, Karin Brulliard, Nov. 7, 2022. This week, the Supreme Court will consider whether to gut the Indian Child Welfare Act, which prioritizes placing Native foster children with Native relatives.

PASCUA YAQUI INDIAN RESERVATION, Ariz. — Victor Cortez was just 5 months old when he was brought here from California by a tribal social worker, who placed the baby in the care of a relative after his mother was jailed for drug trafficking. Today, 16 and soft-spoken, Victor is a rising star among the Pascua Yaquis’ traditional dancers and is still living with that guardian, the only mother he’s ever known.

Victor is also known as an “ICWA kid,” a label that includes a familiar acronym here — one that refers to a landmark Indian law whose fate is on the line at the U.S. Supreme Court on Wednesday. The Indian Child Welfare Act governs foster care and adoptions involving Native American children, prioritizing placing them with relatives, fellow tribal members or in other Native homes.

“The culture that we do here — I’m just glad I’m in it,” Victor said. “It’s a blessing.”

The law passed unanimously in 1978 to help rectify what Congress then called “the most tragic and destructive aspect of American Indian life today”: the widespread and sometimes forced removal of Native children to boarding schools and families with no links to their tribes. Tribes’ existence, Congress asserted, depended on their children.

Now, in a case that originated over the adoption of a Native boy by a White Texas couple, seven individuals and three states are asking the court to strike down the law, which they say discriminates on the basis of race and unconstitutionally requires states to enforce federal law. Defending the act are the Biden administration and five tribes, including the Cherokee and Navajo, which argue that the law is tied to tribal membership — a political, not racial, category.

Nov. 6

New York Times, Abrupt New Border Expulsions Split Venezuelan Families, Miriam Jordan and Brittany Kriegstein, Nov. 6, 2022. The U.S. government expanded a pandemic-related expulsion policy in a bid to curb Venezuelan migration. Some families were caught on both sides of the border.

Miguel Peñaranda, his wife and two stepchildren believed the long odyssey that began seven years ago when they left Venezuela had ended when they reached the United States on Oct. 6. But it turned out that some of their worst troubles had only begun.

After turning themselves in to the U.S. Border Patrol in El Paso, the Peñarandas were placed in separate cells, for men and women, for what they assumed would be a day or two of processing their initial request for asylum.

Mr. Peñaranda, 44, and his 18-year-old stepson were released three days later in Brownsville, Texas — but there was no sign of his wife or 20-year-old stepdaughter.

An agonizing week went by before Mr. Peñaranda received a call from his wife, Heyllyn Yepez. “My love, I am so relieved to hear your voice,” he recalled telling her. She was sobbing on the phone. “We are in Mexico!” she said. “We were deported and sent to Acapulco.”

The family was one of many who have been disrupted by the Biden administration’s abrupt closure of the border last month to the large numbers of Venezuelan migrants who had been making their way to the United States this year.

The decision to expel Venezuelans under a pandemic-era policy that allows swift expulsions, previously applied mainly to Mexicans and Central Americans, has had the unintended effect of trapping many Venezuelan families on opposite sides of the U.S.-Mexico border.

Nov. 4

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, Opinion: The tragedy of John Roberts, Ruth Marcus, right, Nov. 4, 2022. On the final day of oral arguments last term, the chief justice’s voice cracked with emotion as he bade farewell to the retiring Justice Stephen G. Breyer. It was a striking moment for the normally buttoned-up John G. Roberts Jr., and one that seemed to signify more than sorrow at the departure of a longtime colleague. It is not far-fetched to imagine that Roberts was mourning the decisive end of his vision of presiding over an institution seen as operating above the partisan fray.

“I’ve lost my only friend on the court,” Roberts, left, told someone afterward.

As Roberts, 67, begins his 18th term, he is an at times isolated and even tragic figure. Roberts wanted to be at the helm of a court that was more often unanimous than splintered; now it is cleaved, 6-3, along hardened ideological lines. Roberts wanted to help shore up the court’s institutional standing; instead, he has watched it plunge in public esteem, helpless to prevent the fall.

He has been outflanked and marginalized by five conservative justices to his right, even as he has been subjected to unsparing criticism by those to his left.

In the last term alone, Roberts witnessed the unprecedented — and, from all appearances, still unsolved — leak of a draft opinion, in the Dobbs abortion case. In the aftermath of that jarring event, his most conservative colleague, Clarence Thomas, openly lamented the days when “we were a family” — and pointedly dated those to the “fabulous court” before Roberts’s tenure.

When the final Dobbs ruling was released, Roberts was a lone voice, his suggested compromise unable to attract a single additional vote.

Nov. 2

New York Times, As Stakes Rise, State Supreme Courts Become Crucial Election Battlegrounds, Michael Wines, Nov. 2, 2022. Issues like abortion, gerrymandering and voting have been tossed into state justices’ laps. Politicians, ideological PACs and big money are following.

State supreme court races, traditionally Election Day afterthoughts, have emerged this year as crucial battlefields in the struggle over the course of American democracy, attracting a torrent of last-minute money and partisan advertising.

In Ohio, an arm of the national Democratic Party funneled a half-million dollars last month into a super PAC backing three Democratic candidates for the high court. In North Carolina, a state political action committee with ties to national Republicans gave $850,000 last week to a group running attack ads against Democratic state supreme court candidates.

On another level entirely, Fair Courts America, a political action committee largely bankrolled by the Schlitz brewing heir and shipping supplies billionaire Richard E. Uihlein and his wife, Elizabeth, has pledged to spend $22 million supporting deeply conservative judicial candidates in seven states.

The motivation behind the money is no mystery: In states like Ohio, North Carolina and Michigan, partisan control of supreme courts is up for grabs, offering a chance for progressives to seize the majority in Ohio and for conservatives to take power in North Carolina and Michigan. In Illinois, competing billionaires are fueling court races that offer Republicans their first chance at a Supreme Court majority in 53 years.

Politico, Trump lawyers saw Justice Thomas as 'only chance' to stop 2020 election certification, Kyle Cheney, Josh Gerstein and Nicholas Wu, Nov. 2, 2022. Thomas is the justice assigned to handle emergency matters arising out of Georgia and would have received any urgent appeal of Trump’s lawsuit to the Supreme Court.

Donald Trump’s attorneys saw a direct appeal to Supreme Court Justice Clarence Thomas as their best hope of derailing Joe Biden’s win in the 2020 presidential election, according to emails newly disclosed to congressional investigators.

“We want to frame things so that Thomas could be the one to issue some sort of stay or other circuit justice opinion saying Georgia is in legitimate doubt,” Trump attorney Kenneth Chesebro wrote in a Dec. 31, 2020, email to Trump’s legal team. Chesebro contended that Thomas would be “our only chance to get a favorable judicial opinion by Jan. 6, which might hold up the Georgia count in Congress.”

“I think I agree with this,” attorney John Eastman replied later that morning, suggesting that a favorable move by Thomas or other justices would “kick the Georgia legislature into gear” to help overturn the election results.

The messages were part of a batch of eight emails — obtained by POLITICO — that Eastman had sought to withhold from the Jan. 6 select committee but that a judge ordered turned over anyway, describing them as evidence of likely crimes committed by Eastman and Trump. They were transmitted to the select committee by Eastman’s attorneys last week, but they have not been publicly released.

Nov. 1

Washington Post, Roberts temporarily delays release of Trump tax records, Robert Barnes, Nov. 1, 2022. Chief Justice John G. Roberts Jr., right, temporarily halted the release of former president Donald Trump’s tax records to a congressional committee, and called for more briefing in the case.

Without the Supreme Court’s intervention, the records could have been handed over to the House Ways and Means Committee as early as Thursday.

Last week, the full U.S. Court of Appeals for the D.C. Circuit declined to review earlier rulings finding that lawmakers are entitled to the documents in the long-running legal battle. The court also said it would not put the release of the papers on hold.

Roberts, the justice designated to hear emergency orders from that court, put the release on hold and called for a response from the committee by noon on Thursday.

October

Oct. 30

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, The most diverse Supreme Court ever confronts affirmative action, Robert Barnes, Oct. 30, 2022 (print ed.). The most diverse group of Supreme Court justices in history will gather Monday to confront the issue that has vexed and deeply divided past courts: whether affirmative action in college admissions recognizes and nourishes a multicultural nation or impermissibly divides Americans by race.

The authority of college administrators to use race in a limited way to build a diverse student body has barely survived previous challenges. But even a defender of such policies, Justice Sandra Day O’Connor, wrote in 2003 that racial preferences were not likely to be needed in 25 years. And a more dominant conservative majority is in place now.

It will be the first review of past decisions by a Supreme Court on which White men do not make up the majority. The body has undergone an almost complete turnover since O’Connor’s prediction, and includes justices who say affirmative action programs directly shaped their lives.

The court now has two Black members — and they seem to have opposite views of whether race-based policies are authorized by the Constitution. The court’s most senior member, Justice Clarence Thomas, left, is an outspoken opponent of affirmative action: “racial paternalism … as poisonous and pernicious as any other form of discrimination,” he has written.

Ketanji Brown Jackson, right, the court’s newest member and its first Black female justice, staked out her position on just her second day on the bench: there is no reason to believe the Constitution forbids race-conscious policies.

Americans support diversity in college admissions, but not use of race to make decisions, poll shows

Sonia Sotomayor, the court’s first Latina justice, is the boldest defender of what she prefers to call “race-sensitive” admission policies; she has offered herself as the “perfect affirmative action child” — one who would not have been transported from Bronx housing projects to the Ivy League without a boost, but excelled as a top student once she got there.

Washington Post, Opinion: Colleges will racially discriminate no matter how the Supreme Court rules, George F. Will, right, Oct. 30, 2022 (print ed.). Two momentous cases the Supreme Court will hear Monday concern racial preferences in admissions to Harvard and the University of North Carolina.

The oral arguments the Supreme Court will hear Monday concern two cases that are momentous, even though the desirable outcomes would not prevent the losing parties from continuing reprehensible practices.

By holding that such preferences violate the Constitution’s guarantee of equal protection of the laws and the 1964 Civil Rights Act’s prohibition of racial discrimination by recipients of federal funding, the court can bolster the wholesome belief held by a large, diverse American majority: that the nation’s laws should be colorblind.

New York Times, Commentary: On Affirmative Action, What Once Seemed Unthinkable Might Become Real, Linda Greenhouse, right (Yale Law School scholar, former longtime Supreme Court reporter for the New York Times and author of the memoir Just a Journalist), Oct. 30, 2022 (print ed.). As affirmative action prepares to meet its fate before a transformed Supreme Court, after having been deemed constitutional in higher education for more than four decades, the cases to be argued on Monday bring into sharp focus a stunning reality.

After all this time, after the civil rights movement and the many anti-discrimination laws it gave birth to, after the election of the first Black president and the profound racial reckoning of the past few years — perhaps because of all those things — the country is still debating the meaning of Brown v. Board of Education.

A dispute over what the court meant when it declared in 1954 that racial segregation in the public schools violates constitutional equality is not what I expected to find when I picked up the daunting pile of briefs filed in two cases challenging racially conscious admissions practices at Harvard and the University of North Carolina. There are more than 100 briefs, representing the views of hundreds of individual and organizational “friends of the court,” in addition to those filed by the parties themselves.

Both cases were developed by a made-to-order organization called Students for Fair Admissions Inc. The group asks the court in both cases to overturn Grutter v. Bollinger, its 2003 decision upholding affirmative action in student admissions to the University of Michigan’s law school.

Justice Sandra Day O’Connor, left, writing for the majority in Grutter, said then that society’s interest in maintaining a diverse educational environment was “compelling” and justified keeping affirmative action going, as needed, for the next 25 years. Since that was 19 years ago, I expected to read an argument for why the timetable should be foreshortened or, more broadly, why diversity should no longer be considered the compelling interest the court said it was in 1978 in Regents of the University of California v. Bakke. The court concluded in that case that race could be used as one criterion by universities in their admissions decisions.

Instead, I found this bold assertion on page 47 of the plaintiff’s main brief: “Because Brown is our law, Grutter cannot be.”

Relying on a kind of double bank shot, the argument by Students for Fair Admissions goes like this: The Brown decision interpreted the 14th Amendment’s equal protection guarantee to prohibit racial segregation in public schools. In doing so, it overturned the “separate but equal” doctrine established 58 years earlier in Plessy v. Ferguson. Therefore, the court in Brown necessarily bound itself to Justice John Marshall Harlan’s reference in his dissenting opinion in Plessy to a “colorblind” Constitution.

“Just as Brown overruled Plessy’s deviation from our ‘colorblind’ Constitution, this court should overrule Grutter’s,” the group asserts in its brief. “That decision has no more support in constitutional text or precedent than Plessy.”

Briefs on the universities’ side take vigorous issue with what the University of North Carolina’s brief calls “equal protection revisionism.” Noting that Justice Harlan’s objection to enforced separation of the races was that it imposed a “badge of servitude” on Black citizens, the brief observes that “policies that bring students together bear no such badge.”

Moreover, a brief by the NAACP Legal Defense and Educational Fund Inc., under the auspices of which Thurgood Marshall argued Brown before the Supreme Court, warns that the plaintiff’s position “would transform Brown from an indictment against racial apartheid into a tool that supports racial exclusion.” The “egregious error” in the court’s majority opinion in Plessy, the legal defense fund’s brief explains, was not its failure to embrace a “colorblind” ideal but its “failure to acknowledge the realities and consequences of persistent anti-Black racism in our society.” For that reason, the brief argues, the Grutter decision honored Brown, not Plessy.

“Some level of race-consciousness to ensure equal access to higher education remains critical to realizing the promise of Brown,” the defense fund argues.

Grutter was a 5-to-4 decision. While the court was plainly not at rest on the question of affirmative action, it evidently did not occur to the justices in 2003 to conduct their debate on the ground of which side was most loyal to Brown. Each of the four dissenters — Chief Justice William Rehnquist and Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas — wrote an opinion. None cited Brown; Justice Thomas quoted Justice Harlan’s “our Constitution is colorblind” language from his Plessy dissent in the last paragraph of his 31-page opinion, which was mainly a passionate expression of his view that affirmative action has hurt rather than helped African Americans.

While the contest at the court over Brown’s meaning is new in the context of higher education, it was at the core of the 2007 decision known as Parents Involved, which concerned a limited use of race in K-12 school assignments to prevent integrated schools from becoming segregated again. In his opinion declaring the practice unconstitutional, Chief Justice John Roberts had this to say: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again — even for very different reasons.” In his dissenting opinion, Justice Stephen Breyer called the chief justice’s appropriation of Brown “a cruel distortion of history.”

The invocation of a supposedly race-neutral 14th Amendment — as the former Reagan administration attorney general Edwin Meese III phrased it in his brief against the universities — goes to the very meaning of equal protection. That was clear earlier this month in the argument in the court’s important Voting Rights Act case in the new term.

Alabama is appealing a decision requiring it to draw a second congressional district with a Black majority. Alabama’s solicitor general, Edmund LaCour, denounced the decision as imposing a racial gerrymander that he said placed the Voting Rights Act “at war with itself and with the Constitution.” “The Fourteenth Amendment is a prohibition on discriminatory state action,” he told the justices. “It is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.”

The newest member of the court, Justice Ketanji Brown Jackson, pushed back strongly with an opposite account of the 14th Amendment’s origins. “I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required,” she said. “The entire point of the amendment was to secure the rights of the freed former slaves.”

Oct. 27

New York Times, Garland Formally Bars Justice Dept. From Seizing Reporters’ Records, Charlie Savage, Oct. 27, 2022 (print ed.). The rule codifies and expands a policy he issued in 2021, after it came to light that the Trump administration had secretly gone after records of reporters for The Times, The Washington Post and CNN.

The Justice Department on Wednesday formally banned the use of subpoenas, warrants or court orders to seize reporters’ communications records or demand their notes or testimony in an effort to uncover confidential sources in leak investigations, in what amounts to a major policy shift.

The rules institutionalize — and in places expand — a temporary policy that Attorney General Merrick B. Garland put in place in July 2021, after the revelation that the Justice Department, under Attorney General William P. Barr, had secretly pursued email records of reporters at The New York Times, The Washington Post and CNN.

“These regulations recognize the crucial role that a free and independent press plays in our democracy,” Mr. Garland said in a statement.

“Because freedom of the press requires that members of the news media have the freedom to investigate and report the news, the new regulations are intended to provide enhanced protection to members of the news media from certain law enforcement tools and actions that might unreasonably impair news gathering.”

The broad prohibitions are a major change in how the Justice Department has come to approach leak investigations in the 21st century, when it began a crackdown that spans administrations of both parties and has put pressure on reporting on matters of national security.

The publisher of The Times, A.G. Sulzberger, who was put under a gag order in 2021 that shielded from his own newsroom’s view a legal fight over the email logs of Times journalists, praised the new policy while calling on Congress to pass a law further strengthening such protections.

“We applaud the Justice Department for taking this important step, which will allow journalists to perform the crucial work of informing the public without fear of legal consequences,” Mr. Sulzberger said. “We encourage Congress to enact a federal shield law to help ensure that these reforms are lasting.”

Exceptions to the policy are narrow. Among others, it does not apply to situations in which a reporter is under investigation for something unconnected to news gathering, situations in which a member of the news media is deemed an agent of a foreign power or a member of a foreign terrorist group, or “when necessary to prevent an imminent or concrete risk of death or serious bodily harm.”

The Justice Department developed the regulation in consultation with press freedom advocates like Bruce D. Brown, the executive director of the Reporters Committee for Freedom of the Press. Mr. Garland also met with representatives from The Times, The Post, The Associated Press, CBS, CNN, Dow Jones, NBC and The New Yorker.

Those conversations led to several adjustments about potentially critical issues, like how “news gathering” is defined. According to participants, the Justice Department originally intended to define it in a way that was limited to the passive receipt of government secrets. But the final version now covers the act of pursuing information.

The regulation defines “news gathering” as “the process by which a member of the news media collects, pursues, or obtains information or records for purposes of producing content intended for public dissemination,” including “classified information” from confidential sources.

The Justice Department is also said to have removed espionage from a list of criminal activities that are excluded from protected news gathering.

The final regulation does not cover criminal acts “committed in the course of obtaining information or using information.” Those include breaking and entering; theft; unlawfully gaining access to a computer or computer system; unlawful surveillance or wiretapping; bribery; or aiding or abetting or conspiring to engage in such criminal activities.

Emptywheel, Analysis: DOJ Rethinks — But In A Few Areas, Expands — Access To Media Content, Emptywheel (Marcy Wheeler, right),  Emptywheel, Oct. 27, 2022. In a story on the new media guidelines DOJ rolled out yesterday, Charlie Savage reveals what representatives of the press think they got in the new guidelines, in addition to a formal codification of broader restrictions on the use of legal process to find real journalists’ sources:

Those conversations led to several adjustments about potentially critical issues, like how “news gathering” is defined. According to participants, the Justice Department originally intended to define it in a way that was limited to the passive receipt of government secrets. But the final version now covers the act of pursuing information.

The language in question appears to cover things like encrypted dropboxes, something that journalists liked to compare (inaptly) to the charge against Julian Assange of attempting to hack a password for Chelsea Manning. Thus far, multiple criminal prosecutions show that dropboxes have not thwarted DOJ from prosecuting those who submitted documents into them.

Oct. 26

Delaware Chancellor Kathaleen St. J. McCormick is overseeing litigation that could require Elon Musk to follow through on his deal to buy Twitter (Photo by Eric Crossan via New York Times).

New York Times, Elon Musk Seems to Answer to No One. Except for a Judge in Delaware, Lauren Hirsch, Oct. 26, 2022. The chief judge of Delaware’s Chancery Court gave Mr. Musk until Friday to acquire Twitter. She is also the judge in at least one other case involving him.

Judge Kathaleen St. J. McCormick has become a very important person in the rambunctious life of Elon Musk.

The Delaware Chancery Court judge has given Mr. Musk until Friday to close his long-promised, $44 billion deal to acquire Twitter. If he doesn’t, Judge McCormick will preside over a trial in November that could end with Mr. Musk being forced to make good on the deal he made with Twitter in April.

The 43-year-old judge is also expected to preside over another case involving Mr. Musk in November. A Tesla shareholder accused him in a lawsuit of unjustly enriching himself with his compensation package while running the electric vehicle company, which is Mr. Musk’s main source of wealth. The package, which consisted entirely of a stock grant, is now worth around $50 billion based on Tesla’s share price.

Judge McCormick is also overseeing three other shareholder lawsuits against Mr. Musk, though it is not yet clear whether those will go to trial, too.

The woman who suddenly has a great deal of influence over Mr. Musk, right, comes from a much different world than the jet-setting, South African-born billionaire. The daughter of a high school football coach and an English teacher, Judge McCormick was raised in Smyrna, Del., a town with roughly 13,000 people about 14 miles away from Dover, the state capital.

Judge McCormick now oversees the 230-year-old court that is considered the foremost destination for adjudicating disputes over mergers and acquisitions and other corporate disagreements. She has been both quick-witted and blunt in months of hearings for Twitter’s lawsuit. And her decision to grant Mr. Musk a delay to a trial that was expected to begin earlier in October also displayed unusual flexibility — and pragmatism — to legal experts.

Washington Post, Justice Alito says leak of abortion opinion made majority ‘targets for assassination,’ Ann E. Marimow, Oct. 26, 2022. Justice Samuel A. Alito Jr. (shown above in a file photo) said Tuesday that the leak of his draft opinion to overturn Roe v. Wade made his colleagues in the majority on the U.S. Supreme Court “targets for assassination.”

The leak last spring before the court eliminated the nationwide right to abortion was a “grave betrayal of trust by somebody, and it was a shock,” he said. The threat to the justices, he added, was not theoretical because it “gave people a rational reason to think they could prevent that from happening by killing one of us.”

He noted that a man has been charged in an alleged attempt to kill Justice Brett M. Kavanaugh, who was in the majority to overturn Roe. The California man, arrested near the justice’s home before the final opinion was released, was upset by the leaked draft, authorities said.

Interpretations of the 14th Amendment have been key in extending a slew of legal protections including civil rights, same-sex marriage, and abortion rights. (Video: Adriana Usero/The Washington Post)

Alito’s remarks during an event at the Heritage Foundation touched on criticism of the court, relations between the justices and proposals to expand the size of the Supreme Court. His comments come as polls show public approval of the court has dropped to record lows after the conservative majority allowed greater restrictions on abortion, expanded gun rights and limited the government’s power to address climate change.

Oct. 24

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

New York Times, Justice Thomas Briefly Shields Graham From Georgia Election Subpoena, Adam Liptak, Oct. 24, 2022. Justice Clarence Thomas’s order will almost certainly not be the Supreme Court’s last word on whether Senator Lindsey Graham must be questioned.

Justice Clarence Thomas on Monday temporarily shielded Senator Lindsey Graham, Republican of South Carolina, from having to answer questions from a special grand jury in Georgia investigating efforts to overturn former President Donald J. Trump’s election loss in the state.

Justice Thomas’s brief order was an “administrative stay,” meant to give the court some breathing room to weigh the senator’s emergency application asking the Supreme Court to bar the grand jury from questioning him.

On Saturday, Justice Thomas, who oversees the appeals court whose ruling is at issue, ordered prosecutors to respond to the application by Thursday. Such a request for a response is almost always a sign that the full court will weigh in on the matter.

Prosecutors appear to be particularly interested in any efforts Mr. Graham may have made to urge officials in Georgia, including its secretary of state, Brad Raffensperger, to address allegations of voting irregularities before Congress was to vote in January 2021 to certify that President Biden was the legitimate winner of the presidential election.

New York Times, Alito Assured Ted Kennedy in 2005 of Respect for Roe v. Wade, Diary Says, John A. Farrell, Oct. 24, 2022. In the senator’s recollection, the Supreme Court justice who wrote the opinion overturning the abortion ruling tried to show Mr. Kennedy that he was not a threat to Roe.

Senator Edward M. Kennedy looked skeptically at the federal judge. It was Nov. 15, 2005, and Samuel A. Alito Jr., who was seeking Senate confirmation for his nomination to the Supreme Court, had just assured Mr. Kennedy in a meeting in his Senate office that he respected the legal precedent of Roe v. Wade, the 1973 court decision that legalized abortion.

“I am a believer in precedents,” Judge Alito said, in a recollection the senator recorded and had transcribed in his diary. “People would find I adhere to that.”

In the same conversation, the judge edged further in his assurances on Roe than he did in public. “I recognize there is a right to privacy,” he said, referring to the constitutional foundation of the decision. “I think it’s settled.”

But Mr. Kennedy, a Massachusetts Democrat and longtime supporter of abortion rights, remained dubious that November day that he could trust the conservative judge not to overturn the ruling. He brought up a memo that Judge Alito had written as a lawyer in the Reagan administration Justice Department in 1985, which boasted of his opposition to Roe.

Judge Alito assured Mr. Kennedy that he should not put much stock in the memo. He had been seeking a promotion and wrote what he thought his bosses wanted to hear. “I was a younger person,” Judge Alito said. “I’ve matured a lot.”

The answer did not assuage Mr. Kennedy, who went on to vote against Judge Alito’s confirmation. If the judge could configure his beliefs to get that 1985 promotion, Mr. Kennedy asked in a notation in his diary, how might he dissemble to clinch a lifetime appointment to the nation’s highest court?

Justice Alito wrote the majority opinion this past June in Dobbs v. Jackson Women’s Health Organization, the momentous Supreme Court decision that put aside 50 years of precedent and overturned Roe. Respect for longstanding precedent “does not compel unending adherence to Roe’s abuse of judicial authority,” he wrote. “Roe was egregiously wrong from the start.”

John A. Farrell is an American historian and the author of biographies of Tip O’Neill, Clarence Darrow, Richard M. Nixon and Edward M. Kennedy. Previously he was a White House correspondent and Washington editor for The Boston Globe.

Oct. 15

The U.S. Supreme Court

 Washington Post, Editorial: The latest Mar-a-Lago ruling underscores the frivolousness of Trump’s complaints, Editorial Board, Oct. 15, 2022 (print ed.). The Supreme Court has dismissed Donald Trump in a single sentence.

With no note of dissent, the justices Thursday rejected the former president’s request to intervene in litigation over documents seized from his Mar-a-Lago estate this summer. This outcome only underscores the outrageous frivolity of the contentions his team has lodged in courts of law and public opinion.

The Supreme Court shouldn’t even have entertained the petition to reconsider part of an appeals court order allowing the Justice Department to continue to review classified documents as a special master looks over other materials for claims of attorney-client or executive privilege. Yet the outcome of Justice Clarence Thomas’s referring the case his colleagues’ way is just another reason to scoff at claims from Mr. Trump that the legal system is treating him unfairly. He has had the opportunity to use, and attempt to abuse, the courts all the way up to the highest in the land — three of whose justices he appointed. And nonetheless, they’ve rejected his arguments.

These rejections are the only possible answer to the numerous implausible claims made by Mr. Trump, including that while in office he could declassify documents “even by thinking about it.” The Mar-a-Lago case is now ensnared in multiple courts thanks to multiple filings from Mr. Trump. Nowhere has he succeeded in establishing any real injury caused to him by the FBI being allowed to proceed with its investigation into the trove of more than 11,000 documents, including 103 with classification markings, that he took with him from the Oval Office. Meanwhile, federal prosecutors have ably described the injury that both an impeded investigation and the ability of an outside party to view highly sensitive materials would cause to the government. After all, these materials reportedly include information regarding nuclear capabilities of a foreign government and other secrets so closely held that the agents involved in the probe needed a special clearance to look at them.

Oct. 13

Washington Post, Biden says Supreme Court ‘more of an advocacy group’ than ‘evenhanded,’ John Wagner, Oct. 13, 2022 (print ed.). President Biden is stepping up his criticism of the Supreme Court, calling it “more of an advocacy group” than “evenhanded” after the court struck down the constitutional right to an abortion.

Biden’s assessment came Tuesday night toward the end of remarks at a virtual fundraiser for Rep. Lisa Blunt Rochester (D-Del.) as he laid out what he sees at stake for Democrats in November’s midterm elections.

“So, I view this … off-year election as one of the most important elections that I’ve been engaged in, because a lot can change because the institutions have changed,” Biden said. “The Supreme Court is more of an advocacy group these days than it is … evenhanded.”

Biden has taken repeated shots at the court since June, when it overturned Roe v. Wade, the landmark decision on abortion. The court now has a 6-to-3 conservative supermajority.

In public comments last month, Chief Justice John G. Roberts Jr. defended the authority of the Supreme Court to interpret the Constitution.

“You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide about what the appropriate decision is,” he said.

During his presidency, Donald Trump bristled over several of the court’s decisions, some regarding policy, others on his false claims about a rigged 2020 election. When the court in December 2020 rejected Trump’s legal challenge aimed at overturning the election, Trump tweeted: “The Supreme Court really let us down. No Wisdom, No Courage!”

Earlier in his remarks Tuesday night, Biden sought to frame the choices facing voters next month.

“We’re less than 30 days away from the midterms, and the stakes are clear,” he said. “The right to choose is on the ballot. Your Social Security you paid for your whole life is on the ballot. The safety of our kids and gun violence is on the ballot. Literally, the survival of the planet is … on the ballot. And your right to vote. And democracy itself is … on the ballot.”

New York Times, Supreme Court Rejects Trump Request to Intervene in Documents Case, Adam Liptak, Oct. 14, 2022 (print ed.). The court issued a one-sentence statement that amounted to a stinging rebuke to former President Trump, Adam Liptak, Oct. 13, 2022.

The Supreme Court on Thursday rejected a request from former President Donald J. Trump to intervene in the litigation over documents seized from his Florida estate.

The court’s order, which was a sentence long, was a stinging rebuke to Mr. Trump. There were no noted dissents, and the court gave no reasons, saying only: “The application to vacate the stay entered by the United States Court of Appeals for the 11th Circuit on Sept. 21, 2022, presented to Justice Thomas and by him referred to the court is denied.”

Mr. Trump asked the court last week to step into the tangled case, saying that an appeals court had lacked jurisdiction to remove about 100 documents marked as classified from a review of the seized material. The Supreme Court’s action means that the special master in the case, and Mr. Trump’s legal team, will not have access to those documents.

In their filing, Mr. Trump’s lawyers did not ask the Supreme Court to overturn a more important part of the appeals court’s ruling, which allowed the Justice Department to continue using the documents with classification markings in its criminal investigation of Mr. Trump’s handling of government records.

Oct. 11

Partially redacted documents with classified markings, including colored cover sheets indicating their status, that FBI agents reported finding in former president Donald Trump’s office at his Mar-a-Lago estate. The photo shows the cover pages of a smattering of paperclip-bound classified documents — some marked as “TOP SECRET//SCI” with bright yellow borders and one marked as “SECRET//SCI” with a rust-colored border — along with whited-out pages, splayed out on a carpet at Mar-a-Lago. Beside them sits a cardboard box filled with gold-framed pictures, including a Time magazine cover. (U.S. Department of Justice photo.)

Politico, DOJ to SCOTUS: Steer clear of Trump’s Mar-a-Lago case appeal, Josh Gerstein and Kyle Cheney, Oct. 11, 2022 It is the latest in a winding legal drama that will likely carry on for months.

The Justice Department is asking the Supreme Court to turn down former President Donald Trump’s bid to get a set of about 100 documents marked as classified back into the hands of an independent “special master” reviewing materials seized from his Mar-a-Lago estate.

Solicitor General Elizabeth Prelogar said in a brief filed Tuesday afternoon that there’s no reason for the high court to step into the dispute over what role the court system should play, if any, in overseeing investigators’ access to the records the FBI recovered from Trump’s Florida home.

Trump is seeking to get the records with classified markings back into the special master review in what appears to be an attempt to raise arguments that he declassified the records while he was president or that he declared them to be personal files not subject to the Presidential Records Act.

“Applicant has never represented in any of his multiple legal filings in multiple courts that he in fact declassified any documents — much less supported such a representation with competent evidence,” Prelogar wrote in the 32-page brief.

Trump has repeatedly, and publicly, claimed to have declassified all of the items seized by the FBI that bear classification markings — including some which characterize the records as among the most sensitive, closely held secrets the government possesses. But his lawyers have repeatedly refused to echo those claims, saying they don’t want to commit themselves to possible defense theories like declassification before a potential indictment.

In several rounds of legal filings and oral argument — including Trump’s application to the Supreme Court last week — the former president’s attorneys have decidedly avoided the issue, saying only that Trump’s access to the records remains absolute, “whether classified or declassified.”
Can we explain Trump’s reaction to the DOJ probe in 2 minutes? A POLITICO reporter tries (and fails, again)

Trump has also not presented any evidence he designated any of the seized materials as personal records, and DOJ has argued that classified documents — which inherently bear on national security — could never fit the statutory definition of personal records, since they are likely to have value to an incumbent or future administration.

The initial special master order U.S. District Court Judge Aileen Cannon issued at Trump’s request barred the government from using any of the seized records, including the potentially classified documents, for criminal investigation purposes until the special master process is complete.

The Justice Department appealed her ruling to the Atlanta-based 11th Circuit Court of Appeals. But it sought emergency relief only to restore access to the documents with classification markings, aiming to exclude them from the special master process. The appeals court sided with prosecutors on those issues last month in a 3-0 decision, although the broader appeal of Cannon’s ruling remains pending.

Trump’s bid for Supreme Court relief did not seek to restore the ban Cannon initially imposed on investigators accessing the documents with classified markings.

Trump’s request to the Supreme Court and the Justice Department’s response were technically submitted to Justice Clarence Thomas, because he oversees the 11th Circuit, which includes Florida. However, in high-profile cases, the individual justices almost always refer requests for emergency relief to the full court.

Oct. 9

Washington Post, Book Review: Trump’s origins in a New York world of con men, mobsters and hustlers, Sean Wilentz, Oct. 9, 2022 (print ed.). In “Confidence Man,” Maggie Haberman puts special emphasis on Trump’s ascent in the late 1970s and 1980s.

Maggie Haberman hails from a New York City very different from Donald Trump’s dominion of glitz and criminality, but she knows that dominion well.

Raised in the household of a traditional shoe-leather New York Times reporter and a well-connected publicist, and now herself ensconced at the digitized Times, Haberman’s earliest assignments involved covering City Hall and its satellite ethical sinkholes for the New York Post and the Daily News. That singular education in New York corruption has stuck with her and sets her apart from her peers reporting on the Trump presidency and its seditious aftermath. It now distinguishes Confidence Man: The Making of Donald Trump and the Breaking of America as a uniquely illuminating portrait of our would-be maximum leader.

With a sharp eye for the backstory, Haberman places special emphasis on Trump’s ascent in a late 1970s and 1980s New York demimonde of hustlers, mobsters, political bosses, compliant prosecutors and tabloid scandalmongers. This bygone Manhattan that Tom Wolfe could only satirize in The Bonfire of the Vanities is the fundament to any understanding of what makes Trump tick.

“The dynamics that defined New York City in the 1980s,” Haberman observes, “stayed with Trump for decades; he often seemed frozen there.” Zombielike, he swaggers and struts and cons on the world’s largest stage, much as he did when gossip columnists fawned over him as The Donald; and he will continue his night of the living dead, with menacing success, until someone finally drives a metaphorical stake through his metaphorical heart.

The rote rap on Trump is that he was a bumptious, hyper-ambitious real estate developer from Queens who never earned the respect of the Manhattan society pooh-bahs and who vowed to beat them at their own game — a vow that eventually led him to the Oval Office, astonishing even Trump. That storyline appears in Confidence Man, but Haberman knows it is superficial.

Inside that cauldron of fakery, Trump, no rugged individualist, and padded with his father’s millions, gravitated to a specific milieu of arrivistes whom he equated with supreme power, class and ruthlessness. He held in especially high regard the bully George Steinbrenner, from the outer outer borough of Cleveland, and became a constant presence in the Boss’s Yankee Stadium box. (I’d not known until reading Haberman that Trump, a wimp when it came to sacking underlings, found his tag line for “The Apprentice” by impersonating Steinbrenner barking “You’re fired,” over and over, not least at the Yankees’ oft-discharged manager Billy Martin.)

Off to one side there was the raffish schemer Roger Stone, left, a well-digger’s son from Norwalk, Conn., who got his start as one of the political saboteurs for Richard Nixon’s 1972 reelection campaign, and whose Washington lobbying mega-firm (with Paul Manafort as one of his co-partners) came to represent the Trump Organization’s interests. From the outermost borough of Adelaide, Australia, there was the unscrupulous media mogul Rupert Murdoch, who had already turned the liberal tabloid New York Post into a right-wing scandal sheet and who in 1985 completed the acquisition of 20th Century Fox that would eventually give the world Fox News, commanded by another member of the New York gang, Roger Ailes. There was also the high-profile, media-savvy U.S. attorney Rudy Giuliani, from Brooklyn like Sharpton, and he and Trump would circle each other until they seriously hooked up some years later.

Trump’s chief mentor, and a consigliere to most of the big shots named above, was the legendary underworld and overworld fixer Roy Cohn (shown with Trump at far right). The pampered son of a kingpin in Bronx Democratic politics, long notorious for his McCarthyite Red Scare grandstanding, Cohn, as Haberman details, connected Trump with Stone as well as with organized crime while giving him master classes in high-stakes con-man strategy and tactics. Whenever Trump today intimidates the press with threats of retaliation, whenever he defends his aggressions by claiming to be the victim, whenever he calls his accusers (especially if they represent the federal government) life-destroying, treasonous “scum,” he is channeling his mentor, Cohn.

Haberman offers plenty of material about how these men did it all with virtual impunity. Of course, there would be the occasional fines and sealed judgments — and Cohn was disbarred weeks before he died of AIDS, abandoned by Trump, who knew the score on being heartless. But as Haberman describes, Trump went to great lengths to square himself with a paragon of the city’s power elite, the longtime Manhattan district attorney Robert Morgenthau, including making generous donations to Morgenthau’s pet charity, the New York Police Athletic League, the one charity commitment, Morgenthau would joke warmly, that Trump could be counted on honoring. Not until Cyrus Vance Jr., who had a fine pedigree but was no crusader, succeeded Morgenthau in 2010 did Trump and his properties, after Vance backed off for years, finally face serious investigation by the D.A.’s office — and even then, prosecutors on the case quit in protest when Vance’s successor suddenly seemed to drop it.

Confidence Man likewise enlightens about the massive oversights by the press and the broader world of publishing, especially in New York, not simply in failing to expose the corruption that Haberman catalogues but in creating and then abetting Trump’s celebrity. There were certainly exceptional naysaying reporters, notably Jack Newfield’s protege at the Village Voice, Wayne Barrett, who, at Newfield’s urging, dug deep into Trump’s shady dealings. Barrett’s and the Voice’s condemnations sparked a brief aborted federal investigation, but they weren’t about to shake the inertia at the most influential outlets, topped by the New York Times. Neither did the late lamented Spy magazine’s bull’s-eye satirical shots at the “short-fingered vulgarian” provoke inquiries, although they did provoke Trump to threaten lawsuits and are said to anger him to this day.

Some of the episodes in Haberman’s later chapters on Trump’s presidency have already stirred controversy. Beneath the buzz, though, many of the richest storylines from the Trump White House, as reported in “Confidence Man” and elsewhere, have a distinctly New York ring. “Where’s my Roy Cohn?” Trump snapped in 2018, in anger at his attorney general, Jeff Sessions, the very conservative former senator from Alabama, who had recused himself from the Justice Department’s investigation into Russian interference in the 2016 election and whom Trump eventually ousted.

Before he was twice impeached, Trump found his man, yet another New York mouthpiece, William Barr, who as attorney general happily did Trump’s bidding in, among other things, lying about the damning Mueller report on the Russian interference — until Trump lost reelection and Barr, well-schooled in transactional loyalty and with his reputation as a supposed “institutionalist” tarnished, declined recruitment into Trump’s coup and at the last minute jumped from the sinking ship. The manic and often antic crimes of Stone, pardoned and unpardoned, add another layer of continuity, a louche link with the old Cohn-centered netherworld.

Haberman’s contribution in Confidence Man, though, is much larger than its arresting anecdotes. Later generations of historians will puzzle over Trump’s rise to national power.

Sean Wilentz, a professor of history at Princeton, is the author, most recently, of “No Property in Man: Slavery and Antislavery at the Nation’s Founding.”

Oct. 8

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

Washington Post, Opinion: Justice Thomas should step back from the Mar-a-Lago documents case, Colbert I. King, right, Oct. 8, 2022 (print ed.). Five weeks before the 2020 presidential election, I argued that Justice Clarence Thomas should recuse himself if the Supreme Court had to decide the electoral fates of President Donald Trump and Democratic nominee Joe Biden. That pivotal moment, fortunately, was never reached.

I called for Thomas’s recusal because I believed his impartiality in any such proceeding could be reasonably questioned. Thomas had spelled out his resentment of Biden in his memoir, My Grandfather’s Son, written 16 years after Thomas became a Supreme Court justice. The book delved into his feelings about the treatment he received at the hands of then-Senate Judiciary Committee Chairman Biden during his 1991 confirmation hearings — one of the most acrimonious and polarizing congressional events in decades.

Thomas, simply stated, believes Biden to be untrustworthy and duplicitous. Thomas said so himself: “Senator Biden’s smooth, insincere promises that he would treat me fairly,” he wrote, “were nothing but talk.”

Before the Judiciary Committee’s vote on his nomination, Thomas said the two got on the phone.

“Biden came on the line. I held the receiver sideways so that Virginia could hear him speak as we stood together in the kitchen,” Thomas wrote. Biden explained why he couldn’t vote for him, and Thomas said he replied, “That’s fine. It’s doesn’t matter to me whether I’m confirmed or not. But I entered this process with a good name, and I want to have it at the end.”

“Judge,” Thomas said Biden then told him, “I know you don’t believe me, but if any of these last two matters come up [referring to Anita Hill’s allegations as well as a leaked draft opinion he had written as an appellate judge that had drawn criticism], I will be your biggest defender.”

“He was right about one thing,” Thomas wrote. “I didn’t believe him. Neither did Virginia. As he reassured me of his goodwill, she grabbed a spoon from the silverware drawer, opened her mouth wide, stuck out her tongue as far as she could, and pretended to gag herself.”

In a later documentary, Thomas charged that Biden and the other Democratic senators opposing him viewed him as the “wrong” African American for the high court.

That anti-Biden animus serves as part of my basis for requesting, once again, that Thomas recuse himself. This time, it involves the case brought by Trump over the Biden Justice Department’s investigation of his handling of White House documents. On Tuesday, Trump’s lawyers asked the Supreme Court to intervene in the Mar-a-Lago documents-seizure case. Their petition was filed with Thomas, who oversees emergency requests from the U.S. Court of Appeals for the 11th Circuit. Thomas instructed the Justice Department to file a response to the court by Oct. 11.

With that formality accomplished, Thomas should step out of the picture.

Because, since 2020, the questions about Thomas’s impartiality in any matter that puts Trump and Biden in direct conflict have only deepened — given the involvement of Thomas’s wife in attempts to overturn the 2020 election.

We have learned that Ginni Thomas, as she is best known, actively tried to keep Trump in the White House by participating in attempts to have him, and not Biden, declared the winner. She lent her name to emails sent after the election to legislators in Arizona and Wisconsin urging them to dismiss the popular votes in their states and, instead, choose electors who would cast electoral college votes for Trump.

That grave impropriety would be seen right away as compromising the appearance of a judge’s independence, and thus a disqualification from him hearing the case. But Justice Thomas continues to turn a blind eye to her misconduct, as well as his own stated anti-Biden bent.

Unfortunately, Thomas is off the code-of-conduct hook. Because Supreme Court justices sit on the nation’s court of last resort, their decisions on recusal are not subject to review.

The Judicial Conference’s Code of Conduct applies only to lower federal courts. Chief Justice John G. Roberts Jr., however, insists that all justices should consult the code for their ethical obligations. The code states: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” That is the case, the code states, when “the judge has a personal bias or prejudice concerning a party” in the proceedings.

Thomas’s personal animus against Biden, now so severely exacerbated by Ginni Thomas’s efforts to reverse an election’s outcome, is where the demand for Justice Thomas’s recusal should kick in, yet again.

However, his bullheadedness stands in the way. At the cost of the Supreme Court’s already battered reputation.

Oct. 7

Senior U.S. Circuit Court of Appeals Judge Laurence Silberman speaks at a memorial for the late Supreme Court Associate Justice Antonin Scalia (Associated Press Photo by Susan Walsh).

New York Times, Laurence Silberman, Conservative Touchstone on the Bench, Dies at 86, Sam Roberts, Oct. 6, 2022 (print ed.). From his powerful perch on the D.C. appeals court, he voided gun controls and challenged press freedoms but also upheld the Affordable Care Act.

Laurence H. Silberman, a conservative federal appeals court judge and advocate of judicial restraint whose opinions on guns rights, press freedom, the Affordable Care Act and other crucial issues resonated widely and sometimes presaged Supreme Court decisions, died on Sunday at his home in Washington. He was 86.

His death was announced by of Chief Judge Sri Srinivasan of the United States Court of Appeals for the District of Columbia, where Judge Silberman had sat since he was appointed by President Ronald Reagan in 1985 and where he continued to adjudicate long after he assumed senior status in 2000. His son, Robert, said the cause was an infection.

Judge Silberman was unanimously confirmed by the Senate for six federal posts; was awarded the Presidential Medal of Freedom, the nation’s highest civilian honor, by President George W. Bush in 2008; and three times was shortlisted by Republican presidents for the Supreme Court.

He never got there, but his opinions on the D.C. appeals court, considered one of the most powerful benches in the country, could nevertheless be far-reaching.

Last year, an editorial in The Wall Street Journal described him as “one of the all-time giants of the federal bench” and perhaps “the most influential judge never to have sat on the Supreme Court.”

Judge Silberman defined judicial restraint not as acquiescence but as leaving it to Congress and other representative bodies to legislate and letting the federal courts decide whether those laws pass muster with the Constitution.

In 1988, for example, he wrote in an opinion that the Watergate-era law passed by Congress that allowed for the appointment of special prosecutors was unconstitutional because it interfered with the president’s powers. The Supreme Court disagreed, but the law eventually lapsed anyway.

In 2002, he wrote an opinion upholding a key provision of the post-9/11 Patriot Act that enabled law enforcement and intelligence officers to share information more easily.

In 2007, he ruled that the District of Columbia’s strict gun registration requirements and ban on carrying firearms violated the Second Amendment. In a decision that cheered gun-rights advocates, the Supreme Court momentously agreed with him, holding that bearing arms was an individual right.

And in 2011 he upheld the constitutionality of the Obama administration’s Affordable Care Act, which at the time required people to be insured. He wrote that individuals’ decisions to remain uninsured, in the aggregate, have a substantial effect on interstate commerce and were therefore fair game for federal regulation.

The Supreme Court went on to uphold the act on other grounds (and Congress later removed the insurance requirement), but Judge Silberman was applauded in some circles for his consistency in exercising judicial restraint, even in assessing the constitutionality of an emblematic Democratic initiative.

He was not unwilling to challenge judicial precedents, however.

In 2021, he delivered a scathing dissent in a libel case, urging the Supreme Court to overturn its 1964 ruling in New York Times v. Sullivan. That precedent said that to sustain a claim of libel against a public figure, a plaintiff had to prove that a published statement was known to have been false or was published with reckless disregard for whether it was true.

Arguing for a ruling that would make it easier for public figures to win libel suits, Judge Silberman said that The Times and The Washington Post had become “virtually Democratic Party broadsheets,” that “the news section of The Wall Street Journal leans in the same direction,” that nearly all TV network and cable outlets are “a Democratic Party trumpet,” and that big tech companies censor conservatives.

“Democratic Party ideological control” of the media, he warned, could portend an “authoritarian or dictatorial regime.” His opinion on lowering the bar for libel suits, if not his same reasoning, was later echoed by the Supreme Court justices Neil M. Gorsuch and Clarence Thomas.

Though a conservative paragon, Judge Silberman defied pigeonholing.

As solicitor in the Nixon administration’s Labor Department, he developed timetables for affirmative action, including numerical quotas that he later said he had initially hoped to avoid.

As under secretary of labor, he threatened to quit unless President Richard M. Nixon overruled a White House aide who sought to prevent the nomination of a Black labor expert as the Labor Department’s director for the New York region.

Judge Silberman said in 2017 that he had completed a draft of his memoirs but that they would not be for public consumption.

“If you write anything for publication, you’ve got to be accurate,” he said. “If you write for your grandchildren, you just have to be honest.”

“That’s the only people I care about,” he said.

Oct. 4

This week's new official portrait of the U.S. Supreme Court

New York Times, Supreme Court Leans Toward Alabama in Voting Rights Dispute, Adam Liptak, Oct. 4, 2022. But several members of the court’s conservative majority rejected the state’s most aggressive arguments in defense of its congressional voting map.In Supreme Court arguments on Tuesday, members of the court’s conservative majority seemed to be searching for a narrow way to uphold a congressional map drawn by Alabama lawmakers that a lower court had said diluted the power of Black voters, violating the Voting Rights Act.

Based on their questioning, which was mostly subdued and limited, the court’s conservatives seemed likely to reject some of the state’s most aggressive arguments, which would impose profound new restrictions on how the 1965 act applies in redistricting cases.

Edmund G. LaCour Jr., Alabama’s solicitor general, argued, in essence, that the law was meant to cover only intentional discrimination on the basis of race, a position that was not well received by some of the court’s conservatives.

“My understanding of our cases is that you don’t have to show intent,” said Chief Justice John G. Roberts Jr.

Justice Amy Coney Barrett agreed. “Our precedent and the statute itself says that you don’t have to show discriminatory intent, so put that aside,” she said.

Justice Samuel A. Alito Jr., the most active participant among the court’s conservatives, indicated that Mr. LaCour might have gone too far. “You have made a number of arguments, some of them quite far-reaching,” Justice Alito said, adding that he would focus on whether the voting district at issue was “reasonably configured.”

Justice Clarence Thomas said very little, and Justice Neil M. Gorsuch said nothing at all. Chief Justice Roberts and Justices Barrett and Brett M. Kavanaugh asked mainly neutral questions.

New York Times, On New Term’s First Day, Supreme Court Hears Case on E.P.A.’s Power, Adam Liptak, Oct. 4, 2022 (print ed.). Justice Ketanji Brown Jackson, in her first Supreme Court argument, vigorously questioned a lawyer challenging the agency’s authority.

In its first argument of the Supreme Court’s new term and the first to feature its newest member, Justice Ketanji Brown Jackson, the justices on Monday considered a dispute over the Environmental Protection Agency’s authority to police some kinds of water pollution.

In June, on the final day of its last term, the court limited the E.P.A.’s power to address climate change under the Clean Air Act.

The new case concerned its authority under a different law, the Clean Water Act, which allows the regulation of discharges into what the law calls “waters of the United States.”

The question for the justices was how to determine which wetlands qualify as such waters.

Much of the argument concerned the meaning of the word “adjacent,” which was used in the law to describe covered wetlands.

 Recent Headlines

• New York Times, As New Term Starts, Supreme Court Is Poised to Resume Rightward Push, Adam Liptak
• New York Times, Editorial: The Supreme Court Has a Crisis of Trust
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• Washington Post, Opinion: A partisan Supreme Court is 2022’s other incumbent, E.J. Dionne
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• Washington Post, Supreme Court, dogged by questions of legitimacy, is ready to resume, Robert Barnes

Oct. 2

This week's new official portrait of the U.S. Supreme Court

New York Times, As New Term Starts, Supreme Court Is Poised to Resume Rightward Push, Adam Liptak, Oct. 2, 2022. The justices return to the bench on Monday to hear major cases on affirmative action, voting, race and discrimination against gay couples; The court’s conservative majority seems set to dominate the new term as it did the last one, which ended with bombshell rulings on issues like abortion.

The last Supreme Court term ended with a series of judicial bombshells in June that eliminated the right to abortion, established a right to carry guns outside the home and limited efforts to address climate change. As the justices return to the bench on Monday, there are few signs that the court’s race to the right is slowing.

The new term will feature major disputes on affirmative action, voting, religion, free speech and gay rights. And the court’s six-justice conservative supermajority seems poised to dominate the new term as it did the earlier one.

“On things that matter most,” said Irv Gornstein, the executive director of the Supreme Court Institute at Georgetown Law, “get ready for a lot of 6-3s.”

Several of the biggest cases concern race, in settings as varied as education, voting and adoptions.

They include challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. As in last term’s abortion case, Dobbs v. Jackson Women’s Health Organization, longstanding precedents are at risk.

The court has repeatedly upheld affirmative-action programs meant to ensure educational diversity at colleges and universities, most recently in 2016. In an interview that year, Justice Ruth Bader Ginsburg said the issue had been permanently settled.

In that same interview, though, she said she feared what would happen were Donald J. Trump, then on the campaign trail, to become president.

“For the country, it could be four years,” she said. “For the court, it could be — I don’t even want to contemplate that.”

Mr. Trump went on to name three members of the Supreme Court, including Justice Amy Coney Barrett, who succeeded Justice Ginsburg after her death in 2020.

Those changes put more than 40 years of affirmative action precedents at risk, including Grutter v. Bollinger, a 2003 decision in which the Supreme Court endorsed holistic admissions programs, saying it was permissible to consider race as one factor among many to achieve educational diversity. Writing for the majority in that case, Justice Sandra Day O’Connor said she expected that “25 years from now,” the “use of racial preferences will no longer be necessary.”

The court seems poised to say that the time for change has arrived several years early in the two new cases, Students for Fair Admissions v. Harvard, No. 20-1199, and Students for Fair Admissions v. University of North Carolina, No. 21-707. They are set to be argued on Oct. 31.

The role race may play in government decision-making also figures in a voting rights case to be argued on Tuesday, Merrill v. Milligan, No. 21-1086. The case is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters.

Oct. 1

New York Times, Editorial: The Supreme Court Has a Crisis of Trust, Editorial Board, Oct. 1, 2022. The Supreme Court’s authority within the American political system is both immense and fragile. Somebody has to provide the last word in interpreting the Constitution, and — this is the key — to do so in a way that is seen as fair and legitimate by the people at large.

What happens when a majority of Americans don’t see it that way?

A common response to this question is to say the justices shouldn’t care. They aren’t there to satisfy the majority or to be swayed by the shifting winds of public opinion. That is partly true: The court’s most important obligations include safeguarding the constitutional rights of vulnerable minorities who can’t always count on protection from the political process and acting independently of political interests.

But in the bigger picture, the court nearly always hews close to where the majority of the American people are. If it does diverge, it should take care to do so in a way that doesn’t appear partisan. That is the basis of the trust given to the court by the public.

That trust, in turn, is crucial to the court’s ability to exercise the vast power Americans have granted it. The nine justices have no control over money, as Congress does, or force, as the executive branch does. All they have is their black robes and the public trust. A court that does not keep that trust cannot perform its critical role in American government.

And yet as the justices prepare to open a new term on Monday, fewer Americans have confidence in the court than ever before recorded. In a Gallup poll taken in June, before the court overturned Roe v. Wade with Dobbs v. Jackson Women’s Health Organization, only 25 percent of respondents said they had a high degree of confidence in the institution. That number is down from 50 percent in 2001 — just months after the court’s hugely controversial 5-to-4 ruling in Bush v. Gore, in which a majority consisting only of Republican appointees effectively decided the result of the 2000 election in favor of the Republicans. This widespread lack of confidence and trust in the nation’s highest court is a crisis, and rebuilding it is more important than the outcome of any single ruling.

Chief Justice John Roberts, right, recently suggested that the court’s low public opinion is nothing more than sour grapes by those on the short end of recent rulings. “Simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court,” he said in remarks at a judicial conference earlier in September.

This is disingenuous. The court’s biggest decisions have always angered one group of people or another. Conservatives were upset, for instance, by the rulings in Brown v. Board of Education, which barred racial segregation in schools, and Obergefell v. Hodges, which established a constitutional right to same-sex marriage. Meanwhile, liberals were infuriated by Bush v. Gore and Citizens United v. Federal Election Commission, which opened the floodgates to dark money in politics. But overall public confidence in the court remained high until recently.

The actual cause of its historic unpopularity is no secret. Over the past several years, the court has been transformed into a judicial arm of the Republican Party. This project was taking shape more quietly for decades, but it shifted into high gear in 2016, when Justice Antonin Scalia died and Senate Republicans refused to let Barack Obama choose his successor, obliterating the practice of deferring to presidents to fill vacancies on the court. Within four years, the court had a 6-to-3 right-wing supermajority, supercharging the Republican appointees’ efforts to discard the traditions and processes that have allowed the court to appear fair and nonpartisan.

As a result, the court’s legitimacy has been squandered in the service of partisan victories.

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.

September

Sept. 29

Justice Amy Coney Barrett and her husband, Jesse Barrett, pose outside the U.S. Supreme Court on the day of her investiture ceremony at the Court (Associated Press photo by J. Scott Applewhite). Justices shield spouses’ work from potential conflict of interest disclosures.

Politico, Justices shield spouses’ work from potential conflict of interest disclosures, Hailey Fuchs, Josh Gerstein and Peter S. Canellos, Sept. 29, 2022. Ginni Thomas, Jane Roberts and Jesse Barrett’s clients remain a mystery, fanning fears of outside influences.

A year after Amy Coney Barrett joined the Supreme Court, the boutique Indiana firm SouthBank Legal opened its first-ever Washington office in Penn Quarter, a move the firm hailed in a 2021 press release as an “important milestone.”

The head of the office, Jesse M. Barrett, is the justice’s husband, whose work is described by the firm as “white-collar criminal defense, internal investigations, and complex commercial litigation.”

SouthBank Legal — which lists fewer than 20 lawyers — has boasted clients across “virtually every industry”: automobile manufacturers, global banks, media giants, among others. They have included “over 25 Fortune 500 companies and over 15 in the Fortune 100,” according to the firm’s website.

But if anyone wants to find out whether Jesse Barrett’s clients have a direct interest in cases being decided by his wife, they’re out of luck. In the Supreme Court’s notoriously porous ethical disclosure system, Barrett not only withholds her husband’s clients, but redacted the name of SouthBank Legal itself in her most recent disclosure.

Over the past year, Virginia Thomas, known as Ginni, has gotten significant attention for operating a consulting business that reportedly includes conservative activist groups with interest in Supreme Court decisions as clients. Her husband, Justice Clarence Thomas, has chosen not to reveal any of his wife’s clients, let alone how much they contributed to the Thomas family coffers, dating back to when her consulting business was founded.

But a Politico investigation shows that potential conflicts involving justices’ spouses extend beyond the Thomases. Chief Justice John Roberts’ wife, Jane Roberts, has gotten far less attention. But she is a legal head-hunter at the firm Macrae which represents high-powered attorneys in their efforts to secure positions in wealthy firms, typically for a percentage of the first-year salary she secures for her clients. A single placement of a superstar lawyer can yield $500,000 or more for the firm.

Mark Jungers, a former managing partner at Major, Lindsey & Africa, the firm that employed Jane Roberts as a legal recruiter before she moved to Macrae, told Politico the firm hired her hoping it would benefit from her being the chief justice’s wife, in part, because “her network is his network and vice versa.”

Roberts lists his wife’s company on his ethics form, but not which lawyers and law firms hire her as a recruiter — even though her clients include firms that have done Supreme Court work, according to multiple people with knowledge of the arrangements with those firms.

Washington Post, Supreme Court, dogged by questions of legitimacy, is ready to resume, Robert Barnes, Sept. 29, 2022. A new term opens with public approval of the court at historic lows and the justices themselves debating what the court’s rightward turn means for its institutional integrity. The Supreme Court begins its new term Monday, but the nation, its leaders and the justices themselves do not appear to be over the last one.

The court’s 6-to-3 conservative majority quickly moved its jurisprudence sharply to the right, and there is no reason to believe the direction or pace is likely to change. This version of the court seems steadfast on allowing more restrictions on abortion, fewer on guns, shifting a previously strict line separating church and state, and reining in government agencies.

If it is the conservative legal establishment’s dream, it has come at a cost.

Polls show public approval of the court plummeted to historic lows — with a record number of respondents saying the court is too conservative — after the right wing of the court overturned Roe v. Wade’s guarantee of a constitutional right to abortion. President Biden is trying to put the court in the political spotlight, hoping the abortion decision’s shock waves rocked the foundation of this fall’s midterm elections, once thought to be a boon to Republicans.

And the justices themselves are openly debating what the court’s rightward turn has meant for its institutional integrity. Chief Justice John G. Roberts Jr. defends his conservative colleagues, with whom he does not always agree, saying unpopular decisions should not call the court’s legitimacy into question.

On the other side, liberal Justice Elena Kagan increasingly is sounding an alarm about the next precedents that could fall and the implications for public perception of the bench.

The court’s new docket offers that potential.

Justices have agreed to revisit whether universities can use race in a limited way when making admission decisions, a practice the court has endorsed since 1978. Two major cases involve voting rights. The court again will consider whether laws forbidding discrimination on the basis of sexual orientation must give way to business owners who do not want to provide wedding services to same-sex couples. And after limiting the Environmental Protection Agency’s authority in air pollution cases last term, the court will hear a challenge regarding the Clean Water Act.

Washington Post, Ginni Thomas falsely asserts to Jan. 6 panel that election was stolen, chairman says, Jacqueline Alemany, Sept. 29, 2022. Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, reiterated her belief that the 2020 election was stolen during her interview Thursday with the committee investigating the Jan. 6, 2021, attack on the U.S. Capitol, according to the committee’s chairman, Rep. Bennie G. Thompson (D-Miss.).

Her false assertion, nearly two years after Joe Biden’s victory, came during a five-hour closed-door interview with the committee.

Ginni Thomas, a conservative activist, drew the attention of the committee after investigators obtained emails between her and lawyer John Eastman, who had advocated a fringe legal theory that Vice President Mike Pence could block the congressional certification of Biden’s electoral college win.

She also repeatedly pressed White House Chief of Staff Mark Meadows to find ways to overturn the election, according to messages she sent to him weeks after the election. The messages represent an extraordinary pipeline between Thomas and one of Trump’s top aides as the president and his allies were vowing to take their efforts all the way to the Supreme Court.

The committee says it may use clips from her appearance, if they are warranted, in a future hearing. But lawmakers have not yet scheduled their next hearing.

Mark Paoletta, an attorney for Thomas, said in a statement that she appeared before the panel “to clear up the misconceptions about her activities surrounding the 2020 elections.”

“As she has said from the outset, Mrs. Thomas had significant concerns about fraud and irregularities in the 2020 election,” the lawyer said. “And, as she told the Committee, her minimal and mainstream activity focused on ensuring that reports of fraud and irregularities were investigated. Beyond that, she played no role in any events after the 2020 election results.”

The panel had previously contemplated issuing a subpoena to compel her testimony.

Sept. 28

U.S. Supreme Court Justice Clarence Thomas sits with his wife, Virginia Thomas, while he waits to speak at the Heritage Foundation on Oct. 21, 2021, in Washington, D.C. (Photo by Drew Angerer via Getty Images).

New York Times, Opinion: The Eagerness of Ginni Thomas, Michelle Cottle, Sept. 28, 2022 (print ed.). Ginni Thomas has become a problem. You don’t have to be a left-wing, anti-Trump minion of the deep state to think it’s a bad look for American democracy to have the wife of a Supreme Court justice implicated in a multitentacled scheme to overturn a free and fair presidential election. But that is where this political moment finds us.

A longtime conservative crusader, Ms. Thomas increasingly appears to have been chin deep in the push to keep Donald Trump in power by any means necessary. Her insurrection-tinged activities included hectoring everyone from state lawmakers to the White House chief of staff to contest the results. She also swapped emails with John Eastman, the legal brains behind a baroque plot to have Vice President Mike Pence overturn the election that may have crossed the line from sketchy into straight-up illegal. Along the way, Ms. Thomas peddled a cornucopia of batty conspiracy theories, including QAnon gibberish about watermarked ballots in Arizona.

Even by the standards of the Trumpified Republican Party, this is a shameful turn of events. And after extended negotiations, Ms. Thomas has finally agreed to voluntarily testify soon before the Jan. 6 House committee. Her lawyer has declared her “eager” to “clear up any misconceptions about her work relating to the 2020 election.”

No doubt we’re all looking forward to her clarifications. But many people would be even more eager to have a bigger question addressed: How is it that someone with such evident contempt for democracy, not to mention a shaky grip on reality, has run amok for so long at the highest levels of politics and government?

The most obvious answer is that Ms. Thomas is married to a very important man. And Washington is a town that has long had to contend, and generally make peace, with the embarrassing or controversial spouses and close kin of its top power players (Martha Mitchell, Billy Carter, Ivanka and Jared…).

But even within this context, Ms. Thomas has distinguished herself with the aggressiveness and shamelessness of her political activities, which she pursues with total disregard for the conflicts of interest that they appear to pose with her husband’s role as an unbiased, dispassionate interpreter of the law.

In another era, this might have prompted more pushback, for any number of reasons. But Ms. Thomas has benefited from a couple of cultural and political shifts that she has shrewdly exploited. One touches on the evolving role of power couples and political spouses. The other, more disturbing, is the descent of the Republican Party down the grievance-driven, conspiracy-minded, detached-from-reality rabbit hole.

If most of America has come around to two-income households, Washington is overrun with bona fide power couples and has fashioned its own set of rules, official and unofficial, for dealing with them. Among these: It is bad form to suggest that a spouse should defer to his or her partner’s career, other than when explicitly required, of course. (A notable exception is the presidency, in which case the first lady is in many ways treated as if it were still 1960.) Though plenty of folks discuss it sotto voce, publicly musing that a couple’s work life might bleed into their home life is considered insulting — even sexist, if the spouse being scrutinized is a woman.

The Thomases have been playing this card for years. Ms. Thomas has forged all sorts of ties with individuals and groups with interests before her husband and his colleagues. In the chaotic aftermath of the 2000 presidential election, she was helping the conservative Heritage Foundation identify appointees for a new Republican administration, even as her husband was deliberating over the outcome of the race. When people grumble about perceived conflicts — or Ms. Thomas’s perpetual political crusading in general — the couple and their defenders complain that they are being held to different standards from others. They are adamant that of course the Thomases can stay in their respective lanes.

• Washington Post, Jan. 6 committee reaches deal with Ginni Thomas for an interview, Jacqueline Alemany and Azi Paybarah, Sept. 22, 2022
• Politico, Ginni Thomas testifies to Jan. 6 panel, Nicholas Wu and Kyle Cheney, Sept. 29, 2022. She came to an agreement with lawmakers last week that paved the way for her testimony.

Sept. 22

Washington Post, Jan. 6 committee reaches deal with Ginni Thomas for an interview, Jacqueline Alemany and Azi Paybarah, Sept. 22, 2022. The House select committee investigating the Jan. 6, 2021, insurrection has reached an agreement with Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, to be interviewed by the panel in coming weeks, according to her attorney and another person familiar with the agreement.

Thomas’s attorney, Mark Paoletta, confirmed the agreement in a statement.

“I can confirm that Ginni Thomas has agreed to participate in a voluntary interview with the Committee,” Paoletta said. “As she has said from the outset, Mrs. Thomas is eager to answer the Committee’s questions to clear up any misconceptions about her work relating to the 2020 election. She looks forward to that opportunity.”

Trump campaign documents show advisers knew fake-elector plan was baseless

CNN was first to report on the agreement.

The committee had earlier announced a public hearing for next week.

The panel had contemplated issuing a subpoena to compel her testimony. Thomas, a longtime conservative activist, had pushed lawmakers and top Republican officials to overturn Joe Biden’s victory in the 2020 presidential election, citing baseless claims of widespread voter fraud.

Her efforts caught the attention of lawmakers and legal scholars who questioned whether it could prompt Clarence Thomas to recuse himself from any cases linked to causes on which his wife had worked.

Ginni Thomas repeatedly pressed White House Chief of Staff Mark Meadows to find ways to overturn the election, according to messages she sent to him weeks after the election. The messages represent an extraordinary pipeline between Thomas and one of Trump’s top aides as the president and his allies were vowing to take their efforts all the way to the Supreme Court.

Sept. 18

Washington Post, Book Review: Former U.S. attorney dishes on how he held line against Trump White House, Barbara McQuade, Sept. 18, 2022 (print ed.). In detailing his ouster from the Southern District of New York, Geoffrey Berman says former attorney general William Barr "was desperate," cites Barr's interference in other investigations.

When then-Attorney General William Barr bungled the firing of Manhattan U.S. Attorney Geoffrey Berman, right, in 2020, we all knew there was more to the story.

Now, in his new book, Holding the Line: Inside the Nation’s Preeminent US Attorney’s Office and Its Battle with the Trump Justice Department, Berman dishes on that clumsy episode and on a range of conflicts with the Department of Justice during his tenure leading the Southern District of New York. Berman names the former DOJ officials who exerted political pressure that he found inappropriate, including Edward O’Callaghan and Jeffrey Rosen. Ultimately, Berman was ousted for the sin of refusing to obey what he believed to be partisan DOJ leadership. “The Department of Justice was not a private law firm dedicated to the president’s personal interests,” he writes, “and it was shameful when they operated as if they were.”

With the storytelling skills of a trial lawyer, Berman describes the episode in which Barr summoned him to Manhattan’s Pierre hotel, “a swanky place where even standard rooms can cost a thousand bucks a night or more.” Barr told Berman that he wanted to replace him at the Southern District of New York (SDNY) with Jay Clayton, the chairman of the Securities and Exchange Commission. Barr even offered Berman a job he apparently thought would be an enticing sweetener: head of the DOJ’s civil division, which represents the United States in all civil lawsuits — a big job but far from the criminal fray. With that job, Barr told Berman, he could “attract clients and build a book of business” for whenever Berman left the DOJ for the private sector. Only after offering him the job did Barr ask whether Berman had any experience in civil law, revealing that the attorney general was not always concerned with the best interests of the department he was entrusted to lead.

Though Berman refused to resign, Barr still issued a news release announcing that Berman was “stepping down” and that, until President Donald Trump could nominate Clayton, the Southern District of New York would be led by Craig Carpenito, the U.S. attorney for New Jersey. Barr bypassed Berman’s deputy, Audrey Strauss, the presumptive choice to serve as acting U.S. attorney. Berman responded with a news release of his own, noting that he was not resigning. His main goal, he writes in “Holding the Line,” was to preserve the office’s independence. The next day, Barr backed down on Carpenito and inserted Strauss into the role of acting head of the office. With Strauss in place, Berman agreed to resign. He concludes: “The truth was that Barr was desperate to get me out of the job I was in, and it was not to put a better US attorney in place. The reasons were perfectly obvious. They were based in politics.”

Berman knew all along that he was living on borrowed time at the SDNY, given his numerous run-ins with the DOJ over what he thought were inappropriate orders from department officials. In one episode that predated Barr’s tenure as attorney general, Berman was investigating Gregory Craig, a former White House counsel for President Barack Obama, for potential violations of the Foreign Agents Registration Act. About two months before the 2018 midterm elections, O’Callaghan called Berman and told him to indict Craig and to do so before Election Day. Berman’s office had recently filed charges in separate cases against a Republican congressman and Trump’s former lawyer Michael Cohen. According to Berman, O’Callaghan had engaged in a heated exchange with the SDNY over the reference in the Cohen indictment to “Individual-1,” which, in context, was an unmistakable reference to Trump. Berman had refused demands to remove it. Now, O’Callaghan said of the Craig case, “It’s time for you guys to even things out.” Berman’s office ultimately declined prosecution. The DOJ sent the case to the D.C. U.S. attorney’s office, which filed the charges. Craig was acquitted at trial.

Berman reserves his strongest criticism for Barr, calling him a bully and his behavior “thuggish.” Upon taking office, Barr tried to “kill” the Southern District’s investigations relating to the campaign finance crimes to which Cohen had pleaded guilty. The reference in plea documents to “Individual-1” made it apparent that Trump faced potential criminal exposure in this investigation. Barr even discussed dismissing Cohen’s conviction in the same way he would later dismiss the false-statements charges against former national security adviser Michael Flynn. In both cases, the defendants had pleaded guilty in open court.

Berman’s book provides a cautionary tale about how political forces can undermine the quest for justice. He’s concerned that power has become centralized in Washington, providing an opportunity for politics to influence decisions. To protect the independence of the 94 U.S. attorney’s offices, he offers some suggestions for reform. For example, he recommends prohibiting DOJ leadership from granting requests by defense counsel to overrule charging decisions made by U.S. attorneys. He further suggests forbidding the DOJ from shopping cases to other districts after they have been declined for prosecution by a U.S. attorney. He also proposes to eliminate prior-approval requirements that U.S. attorneys’ offices must obtain from the DOJ for sensitive investigative steps.

Fortunately, most U.S. attorneys know that their job is to exercise independent judgment and to refuse to take action based on politics. Berman reminds us that to do the job right, you must be willing to resign.

Or in some cases, refuse to do so.

Barbara McQuade is a law professor at the University of Michigan Law School and the former U.S. attorney for the Eastern District of Michigan.

Sept. 17

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, Opinion: The Supreme Court Is Now Ignoring Precedent It Doesn’t Like, Jeffrey L. Fisher (a law professor at Stanford Law School; co-director of the Stanford Supreme Court Litigation Clinic), Sept. 17, 2022. Along with overturning major decisions, the court is quietly erecting new barricades on rulings they can’t quite throw out. 

The Supreme Court’s recent overruling of Roe v. Wade and other foundational decisions makes clear that key precedents are no longer safe.

But as we take account of the court’s last term and look ahead to the next one, it is critical to understand that the aggressive conservative supermajority has also embraced a new, quieter way of annulling other long-established legal rules — a tactic I call barricading precedent. Any assessment of the court’s fidelity to past judicial decisions should include a tally not just of decisions the court overrules but also those it walls off from any future extensions.

Take Egbert v. Boule, a case last term involving whether federal officers could be held liable for violating a person’s Fourth Amendment right to be free from unreasonable seizure. The Supreme Court held in a previous case that officers could indeed be held liable for conducting unreasonable seizures in the course of “conventional” law-enforcement investigations. And — as Justice Neil Gorsuch “candidly” acknowledged in his separate opinion — the Egbert case bore earmarks of a conventional investigation. At the same time, the six Republican appointees stressed that “if we were called to decide [the previous case] today, we would decline” to recognize this type of liability at all. That created a quandary for those justices: Should they follow the rule of the old case or overrule it?

As it turned out, the court did neither. The court professed to accept the prior decision, but it refused to apply it. The new factual setting, the court held, was itself reason enough to withhold application of disfavored precedent — regardless of how comparable the new setting was.

The court’s conservative justices followed a similar course last term in other cases. In Cummings v. Premier Rehab Keller, the court considered whether recipients of federal funds that discriminate against individuals because of their race, sex or disability must pay damages for any resulting emotional distress. The framework the court established 20 years ago strongly suggested the answer was yes. Justices Brett Kavanaugh and Gorsuch, however, supplied the pivotal votes against the plaintiff on the ground that that framework itself was faulty and thus should never be extended. And in Vega v. Tekoh, Kavanaugh took the same approach to the court’s well-known Miranda rule — the rule requiring police officers to warn suspects in custody before questioning them. He encapsulated his approach to Miranda during the case’s oral arguments as follows: “Accept it, but don’t extend it.”

This approach is as problematic as it is pithy. In the guise of respecting precedent, the new tactic of barricading precedent actually thwarts it.

On one level, many surely welcomed the court’s announcement that it intends to preserve those important decisions. But this declaration also seems to confirm that the court is now comfortable deciding cases on the basis of pure power or will, not just traditional judicial reasoning.

That is cause for great concern. A core feature of the rule of law is that judicial decisions must be worth more than their resolutions of specific controversies in the past. Otherwise, the value of precedent threatens to become nothing more than the degree to which the current members of the court thinks a prior decision is correct — in other words, a system, to invert John Adams’ famous phrase, of men, not laws.

Sept. 15

Politico, Kagan repeats warning that Supreme Court is damaging its legitimacy, Josh Gerstein, Sept. 15, 2022. The justice's pointed comments follow Chief Justice John Roberts' recent lament that unpopular decisions shouldn't undercut the court.

Justice Elena Kagan warned again on Wednesday that unsound reasoning and politically convenient conclusions have infected the Supreme Court’s recent opinions and are doing damage to the court’s standing with the American public.

“When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem,” Kagan said during an event at Northwestern University School of Law.

Kagan, right, has offered similar criticism of the high court on several occasions over the past summer, following its momentous, 5-4 decision in June overturning Roe v. Wade and wiping out a federal constitutional right to abortion that had been recognized for nearly half a century.

However, the recent criticisms from Kagan, an appointee of President Barack Obama and a former Harvard Law School dean, now seem more pointed because they come just days after Chief Justice John Roberts expressed concern publicly that the court’s reputation is being unfairly battered.

“I don’t understand the connection between opinions people disagree with and the legitimacy of the court,” Roberts said on Friday night as he addressed a judicial conference in Colorado. “If the court doesn’t retain its legitimate function, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide of what the appropriate decision is. … Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.”

In her remarks on Wednesday, Kagan did not mention the landmark abortion ruling she dissented from in June, but she did refer to other decisions where, she said, the court had colored outside the lines.

Among them was a ruling the court delivered on the final day of decisions in June, striking down a key element of the Biden administration’s climate change policy on the ground that Congress should have been more explicit if it was granting the Environmental Protection Agency authority over such a “major question.”

Sept. 10

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, Roberts says Supreme Court will reopen to public and defends legitimacy, Robert Barnes and Michael Karlik, Sept. 10, 2022. Chief Justice John G. Roberts Jr. defended the integrity of the Supreme Court on Friday in his first public remarks following a tumultuous term, saying that disagreement with its decisions should not lead to questions about its legitimacy.

“The court has always decided controversial cases and decisions always have been subject to intense criticism and that is entirely appropriate,” Roberts, right, told a gathering of judges and lawyers in Colorado Springs. But he said that disagreement with the court’s role of deciding what the law is has transformed into criticism of its legitimacy.

“You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is,” said Roberts, who added, to laughter, “Yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

With the support of three justices chosen by President Donald Trump in the past five years, the Supreme Court now has a 6-to-3 conservative majority. Those justices sent the court on a dramatic turn to the right in the term completed this summer, overturning the guarantee of a constitutional right to abortion in Roe v. Wade, striking a gun control law in New York, limiting the power of the Biden administration to confront climate change, and scoring victories for religious conservatives.

Supreme Court conservatives ignite new era with sweep and speed

The court’s approval rating has dropped to one of its lowest levels ever in public opinion polls, led by unhappy Democrats and by a lesser extent those who view themselves as independent.

But Roberts said it is the Supreme Court’s job to decide what the law is. “That role doesn’t change simply because people disagree with this opinion or that opinion or with a particular mode of jurisprudence,” he said.

Without speaking directly about the court’s decision to overturn nearly 50 years of precedent in striking down Roe, Roberts acknowledged the difficulty of the past year.

“It was gut-wrenching every morning to drive into a Supreme Court with barricades around it,” Roberts said. And it has been “unnatural” to hold oral arguments by teleconference or before a small number of court personnel and reporters. The court has been closed to the public since March 2020 because of worries about the pandemic.

“When we take the bench the first Monday in October at 10 a.m., the public will be there to watch us,” Roberts said. “I think just moving forward from things that were unfortunate is the best way to respond to it.”

Roberts was interviewed by two fellow judges at the Bench & Bar Conference of the U.S. Court of Appeals for the 10th Circuit. He was not asked about one of the things that made the term so contentious: a leaked draft of the Supreme Court’s abortion opinion in Dobbs v. Jackson Women’s Health Organization.

Roberts opens investigation into Supreme Court abortion ruling link

The leak of the draft opinion by Justice Samuel A. Alito Jr. shocked the court, which prides itself on keeping internal deliberations secret. In May, Roberts ordered an investigation into the leak to Politico, but he has said nothing publicly about it since.

Earlier at the same conference in Colorado Springs, Justice Neil M. Gorsuch said the internal investigation was continuing and that he hoped a report would come soon. He did not say whether it would be made public.

Sept. 8

A photo released by the U.S. Department of Justice shows documents allegedly seized at Mar-a-Lago spread over a carpet. (U.S. Department of Justice via AFP and Getty Images).

Washington Post, Justice Dept. appeals judge’s order for a Mar-a-Lago special master, Perry Stein and Devlin Barrett, Sept. 8, 2022. Donald Trump’s lawyers want a special master to shield seized documents that are protected by attorney-client or executive privilege.

The Justice Department said it would appeal a federal judge’s decision to appoint a special master to sift through thousands of documents the FBI seized from Donald Trump’s Florida residence on Aug. 8, according to a Thursday court filing.

The notice of appeal arrived three days after Judge Aileen M. Cannon ruled in favor of Trump and said she would appoint a special master, slowing — at least temporarily — an investigation into the possible mishandling of extremely sensitive classified information, as well as possible hiding, tampering or destruction of government records.

The Justice Department wrote in a brief filing that it would be appealing the decision to the 11th Circuit Court of Appeals.

In a separate, simultaneous court filing, prosecutors asked Cannon to stay her Sept. 5 decision on two key points: her order to temporarily halt a significant portion of the FBI investigation into the potential mishandling of classified information, and to allow a special master to review the classified material that is among the documents seized as part of a court-authorized search at Trump’s Mar-a-Lago club on Aug. 8.

Ultimately, the Justice Department said that a special master could be appointed, but argued that the judge should prohibit the special master from reviewing classified documents. The special master would be still able to sort through personal documents and other items the FBI also seized, setting aside materials as necessary, the filing says.

Prosecutors wrote that allowing a special master to review the classified material would “cause the most immediate and serious harms to the government and the public,” noting that those documents have already been moved to a secure facility, separate from the rest of the seized Trump papers.

And they argued that by prohibiting investigators from using the classified materials found in the August until a special master has cleared them, Cannon could harm national security by hampering the Justice Department’s ability to recover any other classified papers that may still be outstanding.

Barring the FBI from using the classified material in the investigation “could impede efforts to identify the existence of any additional classified records that are not being properly stored—which itself presents the potential for ongoing risk to national security,” prosecutors wrote — the first time they have suggested in court filings that there could be more unsecured classified material they have yet to find.

Trump’s legal team argued in a federal courthouse in West Palm Beach last week that a special master is needed to determine whether any of the documents — more than 100 of which are classified — should be shielded from investigators because of attorney-client or executive privilege. They also said an independent outside expert would boost “trust” in the Justice Department’s criminal probe.

The Justice Department also argued that a former president cannot assert executive privilege after he leaves office, and that it is not possible for one part of the executive branch to assert privilege to shield documents from another part.

But even if Trump could assert executive privilege, the Justice Department argued in its Thursday appeal, the government’s “demonstrated, specific need” to have access to the classified materials would override that privilege. Government prosecutors also said that Trump had no clear need to maintain possession of these classified documents.

“Among other things, the classified records are the very subject of the government’s ongoing investigation,” the filing says.

In her original ruling, Cannon said that the Office of the Director of National Intelligence could continue its analysis of the possible risk to national security posed by the removal from government custody of classified documents, some of which contain the government’s most sensitive intelligence-gathering secrets.

But Justice Department lawyers said Thursday said that it is difficult to separate the FBI investigation from the intelligence review. They said they were unsure of the “bounds” and “implications” of the court order, prompting the intelligence community to temporarily halt its review along with criminal investigators.

The Washington Post reported Tuesday that among the documents seized by the FBI was one describing a foreign government’s military defenses, including its nuclear capabilities, according to people familiar with the situation who spoke on the condition of anonymity. The people also said of the seized documents detail top-secret U.S. operations that are so closely guarded that many senior national security officials are kept in the dark about them.

Sept. 1

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

Washington Post, Investigation: Ginni Thomas pressed Wisconsin lawmakers to overturn Joe Biden’s 2020 election win, emails show, Emma Brown, Sept. 1, 2022. The conservative activist and wife of the Supreme Court justice emailed lawmakers in two states in the weeks after the election.

Virginia “Ginni” Thomas, the conservative activist and wife of Supreme Court Justice Clarence Thomas, pressed lawmakers to overturn Joe Biden’s 2020 victory not only in Arizona, as previously reported, but also in a second battleground state, Wisconsin, according to emails obtained under state public-records law.

The Washington Post reported this year that Ginni Thomas emailed 29 Arizona state lawmakers, some of them twice, in November and December 2020. She urged them to set aside Biden’s popular-vote victory and “choose” their own presidential electors, despite the fact that the responsibility for choosing electors rests with voters under Arizona state law.

The new emails show that Thomas also messaged two Republican lawmakers in Wisconsin: state Sen. Kathy Bernier, then chair of the Senate elections committee, and state Rep. Gary Tauchen. Bernier and Tauchen received the email at 10:47 a.m. on Nov. 9, virtually the same time the Arizona lawmakers received a verbatim copy of the message from Thomas. The Bernier email was obtained by The Post, and the Tauchen email was obtained by the watchdog group Documented and provided to The Post.

Thomas sent all of the emails via FreeRoots, an online platform that allowed people to send pre-written emails to multiple elected officials.

August

Aug. 31

New York Times, Opinion: Bill Barr Made the Decision to Clear Trump, and That Should Still Frighten Us, Neal K. Katyal, right, Aug. 31, 2022 (print ed.). The memo released last week by the Justice Department closing the book on the report of Special Counsel Robert Mueller and his inquiry into Russian interference in the 2016 election is a frightening document.

Critics have rightly focused on its substance, slipshod legal analysis and omission of damning facts.

But the process by which that memo, sent in March 2019, came to be is just as worrisome. Delivered to the attorney general at the time, Bill Barr, the memo was written by two political appointees in the Justice Department.

Mr. Barr (above right) used the memo to go around the special counsel regulations and to clear President Donald Trump of obstruction of justice. If left to fester, this decision will have pernicious consequences for investigations of future high-level wrongdoing.

It raises particular concerns because, as a young Justice Department staff member, I drafted the special counsel regulations in 1999 to prevent the exact problem of having partisan political appointees undermine an investigation. The regulations were put in place to ensure that the counsel would make any determination to charge or not and to force the attorney general to overrule those determinations specifically and before Congress.

The 2019 memo tendentiously argued that Mr. Trump committed no crimes — leaving the final decision on the matter to Republican-aligned appointees instead of to the independent special counsel, left.

The challenge in devising the regulations was to develop a framework for the prosecution of high-level executive branch officials — which is harder than it sounds, because the Constitution requires the executive branch to control prosecutions. So we are left with one of the oldest philosophical problems: Who will guard the guardians?

The solution we landed on was to have a special counsel take over the investigative and prosecutorial functions. That counsel was vested with day-to-day independence in an investigation, but the attorney general would still be able to overrule the special counsel — but, crucially, if the attorney general overruled, to report to Congress, to ensure accountability.

The regulations were written with an untrustworthy president in mind, more so than the problem that Mr. Barr presented, which is an untrustworthy attorney general. Unlike presidents, attorneys general are confirmed by the Senate, with a 60-vote threshold — so we assumed they would be reasonably nonpartisan. And we also knew there was no way around the attorney general being the ultimate decider, because the Constitution requires the executive branch to control prosecutions.

We created the role of special counsel to fill a void — to concentrate in one person responsibility and ultimate blame so that investigations would not be covered up from the get-go and to give that person independence from political pressure.

It is outrageous that Mr. Barr acted so brazenly in the face of this framework. The point of requiring a special counsel was to provide for an independent determination of any potential criminal wrongdoing by Mr. Trump.

But the political appointees in his Justice Department took what was the most important part of that inquiry — the decision of whether he committed crimes — and grabbed it for themselves. This was a fundamental betrayal of the special counsel guidelines not for some principle but because it protected their boss, Mr. Trump. It is the precise problem that the regulations were designed to avoid and why the regulations give the counsel “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States attorney.”

Mr. Katyal is a professor at Georgetown University Law Center, was an acting solicitor general in the Obama administration and is a co-author of “Impeach: The Case Against Donald Trump.”

Wayne Madsen Report, Investigative Commentary: Trump's cache of stolen classified files resembles those of America's most notorious spies, Wayne Madsen, left, author of 22 books and former Navy intelligence officer and NSA analyst, Aug. 31, 2022.  Trump's treason may have led to deaths of U.S. informants and intelligence assets in Saudi Arabia and Russia. Trump's cache of stolen classified files resembles those of America's most notorious spies.

Photographic evidence of the classified documents Donald Trump had strewn around Mar-a-Lago presents the U.S. Intelligence Community with the shocking depth and breadth of the compromise by Trump and his associates, Kash Patel and John Solomon, right, of America's most sensitive intelligence.

As damage assessment teams from across 17 U.S. intelligence agencies conduct in-depth analyses of compromised intelligence sources, technical methods, and relationships with foreign intelligence services, federal law enforcement photographic evidence of unprotected classified documents at Mar-a-Lago will give the most seasoned U.S. counterintelligence professional pause.

The cache of documents resembles those seized from America's most notorious spies, including Jonathan Pollard, Robert Hanssen, Aldrich Ames, shown far right in a mug shot, and John Walker.

Aug. 28

New Yorker, Investigative Commentary: Opinion: Justice Alito’s Crusade Against a Secular America Isn’t Over, Margaret Talbot, Aug. 28, 2022.  He’s had win after win—including overturning Roe v. Wade—yet seems more and more aggrieved. What drives his anger?

Some baby boomers were permanently shaped by their participation in the countercultural protests and the antiwar activism of the nineteen-sixties and seventies. Others were shaped by their aversion to those movements. Justice Samuel Alito belongs to the latter category. For many years, he lacked the power to do much about that profound distaste, and in any case he had a reputation for keeping his head down. When President George W. Bush nominated Alito to the Supreme Court, in 2005, many journalists portrayed him as a conservative but not an ideologue. The Times noted that legal scholars characterized his jurisprudence as “cautious” and “respectful of precedent.” Self-described liberals who’d known him—as an undergraduate at Princeton, as a law student at Yale, or in some later professional capacity—sketched portraits of a quiet, methodical, reasonable man.

On the Court, even as Alito’s opinions aligned consistently with the goals of the Republican Party—in particular, of social conservatives—admirers praised him as pragmatic and Burkean. According to a 2018 C-span/P.S.B. poll, he was the conservative Justice the fewest Americans could name, and for years he was overshadowed by his more flamboyant late colleague, Antonin Scalia; by Clarence Thomas, whose notorious confirmation hearings were followed by a rivetingly long silence on the bench; even by Neil Gorsuch, with his cussed libertarian streak. Richard Lazarus, a professor at Harvard Law School who has studied the Court, told me that in Alito’s first years as a Justice he was known primarily as Chief Justice John Roberts’s right-hand man—“someone the Chief could assign to write an opinion” that would not be too flashy or provocative, and that “would keep five votes together when he couldn’t trust Scalia to do it, because Scalia would swing for the fences and risk losing votes.”

Now, though, Alito, left, is the embodiment of a conservative majority that is ambitious and extreme. (He declined to be interviewed for this article.) With the recent additions of Brett Kavanaugh and Amy Coney Barrett to the Court, the conservative bloc no longer needs Roberts to get results. And Alito has taken a zealous lead in reversing the progressive gains of the sixties and early seventies—from overturning Roe v. Wade to stripping away voting rights. At a Yale Law School forum in 2014, he was asked to name a personality trait that had impeded his career. Alito responded that he’d held his tongue too often—that it “probably would have been better if I said a bit more, at various times.” He’s holding his tongue no longer. Indeed, Alito now seems to be saying whatever he wants in public, often with a snide pugnaciousness that suggests his past decorum was suppressing considerable resentment.

Last term, Alito landed the reputation-defining assignment of writing the majority opinion in Dobbs v. Jackson Women’s Health Organization, which eliminated the constitutional right to abortion enshrined by Roe nearly fifty years ago. In May, a draft of his opinion was leaked, and from start to finish it sounded cantankerous and dismissive. “Roe was egregiously wrong from the start,” Alito declared. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.” He likened Roe to Plessy v. Ferguson, the notorious decision upholding segregation; approvingly cited centuries-old common law categorizing a woman who received an abortion after “quickening” as a “murderess”; and used the inflammatory word “personhood” when describing “fetal life.”

It was hardly inevitable that Alito would be assigned the Dobbs opinion. Joan Biskupic, a CNN analyst and the author of a biography of Chief Justice Roberts, right, has reported that Roberts “privately lobbied fellow conservatives to save the constitutional right to abortion down to the bitter end.” Roberts wanted to validate the particular restriction at issue in Dobbs—a Mississippi ban on virtually all abortions after fifteen weeks—but he opposed a wholesale rejection of Roe, which, among other things, had strengthened the notion that a right to privacy was implicit in the Constitution. If Roberts had successfully enlisted, say, the occasionally more moderate Kavanaugh, he would have had the authority to assign the opinion—as the Chief Justice typically does when he is in the majority. Indeed, Roberts might well have written the opinion himself, producing a text that felt more conciliatory than Alito’s—something less openly contemptuous of the Justices who had crafted Roe and its sequel, Planned Parenthood v. Casey, and more mindful of the fact that a majority of Americans support abortion rights. But, Lazarus told me, “it was quite clear coming into conference after the oral argument that Roberts’s rationale was going to be much narrower than what the other five conservative Justices wanted to say.” Given this gulf, Roberts couldn’t insist on writing the main opinion himself. Traditionally, when the Chief Justice isn’t in the majority—or is nominally voting with it but making a substantially different argument—the most senior Justice in the winning bloc assigns the opinion. In this case, that was Thomas, and he chose Alito.

After the draft leaked, many Court observers predicted that, though the opinion’s substance wasn’t likely to change, its tone surely would. It might at least lose a chilling reference to an insufficient “domestic supply” of adoptable infants—a problem that would be fixed, presumably, by forcing more Americans to carry pregnancies to term. But the final version was virtually unchanged, save for the addition of a sharp rebuke to the dissent. (An investigation into the leak is supposedly ongoing; according to Biskupic, clerks were asked to sign affidavits and provide cell-phone records.)

“We saw an emboldened Alito this term,” Lazarus said. “Unlike when he first joined the Court, he no longer needs to curry favor from the Chief.” Roberts’s view of Dobbs was characteristic: he has long favored narrowly tailored opinions that foster consensus among the Justices and, perhaps, avert political chaos. He once observed, “If it’s not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.” Thomas and Alito have adopted a more combative approach—one that finds no great value in privileging precedent, especially if the precedent emanates from the sixties, when Chief Justice Earl Warren was pushing the Court leftward.

Some Justices, attentive to the immediate human risks of revoking the right to abortion, might have at least put on a show of sober humility. No matter how convinced they were that they were correct—and no matter how cognizant they were of having had the last word—they might, in public appearances, have tried not to antagonize the many Americans who think differently. At a minimum, they might have resisted making a gloating joke.

In July, Alito, who is seventy-two, delivered a speech at the Palazzo Colonna, in Rome, for a gathering hosted by the University of Notre Dame Law School’s Religious Liberty Initiative—a conservative group that has filed amicus briefs before the Court. (Faculty affiliated with the group also filed briefs in Dobbs. Legal analysts at Slate noted that the spectacle of a Justice “chumming it up with the same conservative lawyers who are involved in cases before the court creates the unseemly impression of judicial indifference toward basic judicial ethics rules.”) Alito had donned stylish horn-rimmed glasses that he doesn’t usually wear in public, and he had a new, graying beard. Though the speech focussed on one of his favorite topics—the supposed vulnerability of religious freedom in increasingly secular societies—he couldn’t resist crowing about Dobbs. “I had the honor this term of writing, I think, the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders,” Alito said. “One of these was former Prime Minister Boris Johnson—but he paid the price.” (Johnson resigned earlier this summer.)

The audience laughed heartily. “But others are still in office,” Alito continued, suppressing a smile. “President Macron and Prime Minister Trudeau, I believe, are two.” The laughter grew fainter, but Alito was on a roll. It was time for a dad joke about Voldemort: “What really wounded me was when the Duke of Sussex addressed the United Nations and seemed to compare the decision whose name may not be spoken with the Russian attack on Ukraine.” (The Duke of Sussex, more commonly known as Prince Harry, had said, “This has been a painful year in a painful decade,” citing the pandemic, climate change, the war in Ukraine, the spread of disinformation, and the “rolling back of constitutional rights here in the United States.”)

Alito’s smile reappeared. On the bench, he is often serious, even scowling, especially when his liberal colleagues are speaking. But in Rome, taking shots at his critics for the amusement of a like-minded audience, he was living his best life.

Aug. 23

Rolling Stone, Trump Tells His Lawyers: Get ‘My’ Top Secret Documents Back, Asawin Suebsaeng and Adam Rawnsley, Aug. 23, 2022. The ex-president is desperate to recover the classified trove taken from Mar-a-Lago — and is pushing his legal team on a long-shot maneuver to return them.

In the weeks after the FBI’s Mar-a-Lago raid, former President Donald Trump repeatedly made a simple-sounding but extraordinary ask: he wanted his lawyers to get “my documents” back from federal law enforcement.

Trump wasn’t merely referring to the alleged trove of attorney-client material that he insists was scooped up by the feds during the raid, two people familiar with the matter tell Rolling Stone. The ex-president has been demanding that his team find a way to recover “all” of the official documents that Trump has long referred to as “mine” — including the highly sensitive and top secret ones.

Sources close to Trump agree with outside legal experts that such a sweeping legal maneuver would be a long-shot, at best. “I hate to break it to the [former] president, but I do not think he is going to get all [the] top-secret documents back,” says one Trump adviser. “That ship has probably sailed.”

Further, several longtime Trump advisers say they want absolutely nothing to do with the now-infamous boxes of documents, fearing that any knowledge of them could invite an unwanted knock on the door from the feds. “Who would want any of that back? … If it is what they say it is, keep them the hell away,” a second adviser says.

Still, the former president’s legal team appears to be working to retrieve at least some of the papers seized during the Aug. 8 federal search. In recent days, the Trump team — led by former federal prosecutor Evan Corcoran — has been quietly prepping additional legal arguments and strategies to try to pry back material that the feds removed from the ex-president’s Florida abode and club, the sources say. Those measures include drafting a so-called “Rule 41(g) motion,” which allows “a person aggrieved by an unlawful search and seizure of property” to “move for the property’s return,” according to the Federal Rules of Criminal Procedure.

This would be a follow-up measure to the lawsuit, filed Monday by Trump and his attorneys, calling for the appointment of a special master to review the Mar-a-Lago materials for potentially privileged materials. It is unclear when the ex-president’s lawyers plan to file a subsequent motion, which people close to Trump expect to be more narrowly tailored than what the former president apparently wants.

“The motion he already filed is so absolutely terrible, that it’s hard to contemplate him filing something even more aggressive and even more unlikely to succeed,” says Ken White, a criminal defense attorney and former federal prosecutor.

“However,” White added, Trump is “basically trying to litigate the ultimate issue in the case, which is whether he had the right to possess and keep those things, even after he was asked to return them. It’s very unlikely that the court would accept that invitation to litigate that…He would have to prove that those things were illegally taken, and — based on what we know — that is going to be very difficult to prove…He’s going to have to make some very unusual legal arguments, which, if they’re anything like the motion that was just filed, is going to be a very uphill climb.”

Aug. 14

Washington Post, Most abortions are done at home. Antiabortion groups are taking aim, Kimberly Kindy, Aug. 14, 2022. Two top antiabortion groups have crafted and successfully lobbied for state legislation to ban or further restrict the predominant way pregnancies are ended in the United States — via drugs taken at home, often facilitated by a network of abortion rights groups.

In the wake of the Supreme Court’s decision to overturn Roe v. Wade, 14 states now ban or partially ban the use of those drugs, mifepristone and misoprostol, which are used in more than half of all abortions.

But the drugs remain widely available, with multiple groups working to help provide them even to women in states with abortion bans. Students for Life of America and National Right to Life Committee, which have played leading roles in crafting antiabortion laws, hope to change that with new legislation.

The groups are pursuing a variety of tactics, from bills that would ban the abortion-inducing drugs altogether to others that would allow family members to sue medication providers or attempt to shut down the nonprofit groups that help women obtain and safely use the drugs.

Their strategy reflects the reality that abortion access today looks vastly different from that of the pre-Roe world, one without easy access to abortion medications from out-of-state or overseas pharmacies.

“We knew we couldn’t just go back to pre-Roe laws,” said James Bopp Jr., attorney for National Right to Life. “We knew new approaches were needed.”

Both organizations have long opposed medication abortions, but Students for Life’s legislative efforts did not gain traction until 2021, when seven states passed bills modeled after legislation crafted by the group to create legal barriers to the medications. In some cases the laws also banned them from college health clinics. A new wave of these proposals are expected to be introduced — or reintroduced — in statehouses across the country when most legislatures reconvene in January.

Aug. 8

Wall Street Journal, Trump Says Mar-a-Lago Home Raided by FBI Agents, Alex Leary, Sadie Gurman and Aruna Viswanatha, Aug. 8, 2022. Search was part of an investigation into former president’s handling of official records, people familiar with the matter said. The raid was first made public in a statement by Mr. Trump.

Details of the FBI search at former President Donald Trump's Mar-a-Lago resort in Palm Beach, Fla., shown above in an aerial view, weren’t immediately available.

July

July 29

Wayne Madsen Report, Investigative Commentary: Alito undermines U.S. in Rome speech mocking allied leaders, Wayne Madsen, left, July 29-30, 2022. U.S. Supreme Court Associate Justice Samuel Alito took it upon himself to mock the leaders of U.S. allies in a keynote speech delivered on July 21 in Rome, Italy.

Acting like a mobbed-up comedian performing a churlish stand-up routine on the Las Vegas Strip, Alito lambasted foreign leaders for publicly criticizing the Supreme Court's decision to overturn abortion rights previously guaranteed by the 1973 Roe v. Wade case.

Alito displayed a total disregard for judicial temperament and diplomatic protocol expected of Supreme Court justices. Speaking to the 2022 Religious Liberty Summit sponsored by Notre Dame Law School's Religious Liberty Initiative, Alito launched pointed barbs at foreign leaders by name.

Alito stated that one foreign leader, British Prime Minister Boris Johnson, was forced to resign a few days after he criticized the overturning of Roe v. Wade. Crossing into Qanon conspiracy territory, Alito suggested that it was Johnson's criticism of the Supreme Court that led to his resignation. In fact, Johnson remains as caretaker prime minister until a new leader of his Conservative Party is chosen and it was an ethics scandal that drove Johnson to resign, not his comments on the Supreme Court.

Alito also ridiculed the stances taken by French President Emmanuel Macron and Canadian Prime Minister Justin Trudeau in condemning the decision to overturn Roe v. Wade. Alito was particularly scornful of Prince Harry, the Duke of Sussex.

Rather than act like a senior American jurist, Alito chose to emulate other political jabronis, including Florida Governor Ron DeSantis, Montana Governor Greg Gianforte, House Minoroty Whip Steve Scalise, former New Jersey Governor Chris Christie, former acting Homeland Security Secretary Ken Cuccinelli, and former Secretary of State Mike Pompeo.

Alito's comments only serve to embolden Russia, which sees another opportunity to drive a wedge between the members of NATO and the European Union and the United States. The Supreme Court should also investigate whether any of its members, concerned about adverse international reaction to their pending decision to overturn abortion rights, sought foreign signatures on an amicus curiae brief.

If Chief Justice John Roberts has any effective control over what is now a runaway far-right Supreme Court, he should instruct Alito to publicly and in writing apologize to the world leaders he criticized directly by name and indirectly by insinuation.

July 28

HuffPost, Justice Alito Mocks World Leaders Who Criticized Court's Abortion Ruling, Sara Boboltz, July 28, 2022. Supreme Court Justice Samuel Alito used part of the keynote speech on religious liberty he gave last week to joke about the criticisms he received from world leaders for overturning abortion rights in the United States.

Speaking from Rome at an event hosted by Notre Dame Law School, Alito, rigth, said the abortion rights case prompted “a few second thoughts” on his belief that American judges have no business critiquing other countries’ court rulings.

Politico, Court may pare back secrecy in campus sexual misconduct suits, Josh Gerstein, July 28, 2022 (print ed.). At issue is a lower-court judge’s denial of a former MIT student’s request that he and his accuser, another student, be identified by pseudonyms in court filings.

A federal appeals court in Boston heard arguments on Wednesday in a case that could make it harder for students to maintain their anonymity when suing colleges over the handling of complaints related to sexual misconduct.

Lawyers for the Massachusetts Institute of Technology and a former computer engineering student at the prestigious school squared off over a lower-court judge’s denial of the former student’s request that he be allowed to proceed as “John Doe” in the case and that the fellow student who accused him of misconduct also be identified by a pseudonym in court filings.

Attorney Philip Byler told the 1st U.S. Circuit Court of Appeals that the ruling from U.S. District Court Judge Richard Stearns requiring that the plaintiff either file under his true name or dismiss the suit was unfair and contrary to the custom in such cases. “This is the standard practice in the field,” Byler told the three-judge panel. “I think we’re all flabbergasted by what the district judge wrote here.”

A ruling declining to disturb Stearns’ decision stripping secrecy from the case could discourage some suits against colleges and universities over their campus discipline processes, particularly in cases involving allegations of sexual misconduct or sexual assault.

The suit that led to Wednesday’s arguments was filed last year after MIT kicked out a male student accused of having sexual intercourse with a former girlfriend while she was asleep. The school also found the male student engaged in sexual harassment of the same woman, but the breach-of-contract suit alleges that the investigation and the process were severely biased.

Byler said the tradition of allowing parties to proceed by pseudonyms in litigation involving intimate matters goes back decades.

“Roe v Wade has been in the news,” he observed. “That is a case where pseudonymity was recognized.”

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, Opinion: Here’s a test to see whether Supreme Court justices are above the law, Jennifer Rubin, right, July 28, 2022. The 65 Project, a bipartisan group dedicated to disbarring lawyers who filed frivolous cases related to the 2020 election, or who otherwise participated in the coup attempt, has been very busy in recent months.

It filed a series of complaints against advisers of defeated former president Donald Trump, including Jenna Ellis, Boris Epshteyn, Cleta Mitchell, John Eastman and Joseph diGenova, as well as two lawyers who signed on to be fake electors and two lawyers who participated in the events of Jan. 6, 2021.

Now, the group is making its most ambitious move yet: It is filing a specific demand with the Supreme Court to kick Eastman, the chief architect of the coup plot, out of the elite Supreme Court Bar (lawyers eligible to argue in the highest court). And it has requested that Justice Clarence Thomas recuse himself from the disciplinary proceeding because of the role that Thomas’s wife, Ginni Thomas, below, played in the 2020 scheme.

The complaint, made available to me before it was filed, states that Eastman “bolstered and amplified” claims not backed by evidence or the law. It also alleges that Eastman “actively participated in an effort to undermine our elections – a scheme that led to the gravest attack on American democracy since the Civil War.”

The complaint describes five “spokes” in the coup plot, all of which included Eastman. They include litigating the 65 bogus lawsuits; arranging slates of phony electors in seven states; pressuring Vice President Mike Pence to reject electoral votes; pressuring state lawmakers to overturn votes or rescind electors; and summoning “Trump’s supporters to Washington, D.C. and, having spent months lying to them about fraud and a stolen election, sending them to the Capitol, agitated and armed, to stop the electoral vote count.”

After a detailed review of facts revealed in the Jan. 6 hearings and in reporting, the group argues that Eastman’s conduct warrants expulsion from the Supreme Court Bar as well as the loss of his California legal license. The complaint amounts to a handy guide not only to Eastman’s professional violations, but also to facts that might be the basis for criminal charges in state and federal court.

Michael Teter, the 65 Project’s managing director, tells me, “If Mr. Eastman is allowed to continue to remain a member of the highest court in the United States despite the undisputed facts regarding his actions, the American public’s quickly eroding confidence in the Supreme Court will deteriorate even faster.”

But that’s not even the most intriguing part. Citing the obligation for federal judges to recuse themselves from proceedings in which their impartiality “might reasonably be questioned” or in which the judge has personal bias or knowledge of the facts (including spouses with an interest), the complaint asks the Supreme Court — specifically Justice Thomas — to adhere to the rules (which is not mandatory for justices to follow), since the disciplinary matter concerns “public confidence in the judicial system’s integrity.”

The complaint argues that Ginni Thomas “played a significant role in pursuing many of the same post-election strategies as Mr. Eastman.” It recites her text exchanges with then-White House Chief of Staff Mark Meadows and her effort to pressure Arizona lawmakers, including a former Thomas clerk, to overturn the presidential vote. The complaint also notes that Ginni Thomas attended the “Stop the Steal” rally in D.C. on Jan. 6 and later wrote to House Minority Leader Kevin McCarthy (R-Calif.) denigrating the House select committee’s investigation of the attack on the Capitol. (Thomas previously stated she only briefly attended the rally.)

The recusal request concludes:

In short, Ms. Thomas participated in the concerted effort to overturn the 2020 presidential election. She supported Mr. Eastman’s efforts and conferred with him as Mr. Eastman engaged in scheme described by a federal court as a likely criminal conspiracy. She used her relationships with several other of Justice Thomas’s former clerks to further push the effort to subvert American democracy.

July 25

Politico, Cheney: Jan. 6 panel prepared to consider subpoena for Ginni Thomas, Jesse Naranjo, July 24, 2022. “We hope she'll agree to come in voluntarily," said Rep. Liz Cheney (shown above in a file photo).

Rep. Liz Cheney said Sunday the committee investigating the Jan. 6, 2021, attack on the Capitol is prepared to consider subpoenaing Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, if she does not appear voluntarily.

“The committee is engaged with her counsel,” Cheney (R-Wyo.) said in an interview on CNN’s “State of the Union,” when asked if the panel planned to speak with her about efforts to overturn the 2020 election. “We hope she’ll agree to come in voluntarily. The committee is fully prepared to contemplate a subpoena if she does not.”

Cheney is the vice chair of the nine-member panel. Her statement was the most direct indication of the importance the panel attached to the testimony of Virginia Thomas, right, who is known as Ginni and whose lobbying on the election raised ethical questions because of her marriage to the Supreme Court’s current longest-serving justice.

A lawyer for Thomas previously said the conservative activist would not appear voluntarily before the committee. Thomas’ role in efforts to overturn the election made headlines in March when the Jan. 6 panel published text messages between her and former White House chief of staff Mark Meadows in which she urged him to fight harder to challenge the election’s results.

The committee requested testimony from Thomas in June, around the same time as news reports of her communications with White House officials and informal advisers, namely Trump attorney John Eastman, about efforts to overturn the election began to proliferate.

Asked to respond to Cheney’s comments — and whether it sets a dangerous precedent to subpoena the spouse of a high court justice — on CBS’ “Face the Nation,” panel member Adam Schiff (D-Calif.) said: “There are lines that shouldn’t be crossed, but those lines involve sitting Supreme Court justices not presiding or appearing or taking action in cases in which their spouse may be implicated.”

“And in this case for Clarence Thomas to issue a decision in a case — a dissent in a case where Congress was trying to get documents and those documents might involve his own wife, that’s the line that’s been crossed.”

Schiff was referring to Clarence Thomas’ support of Trump’s efforts to block the Jan. 6 panel from gaining access to pertinent White House records. Thomas was the only justice who supported Trump’s request for an injunction in the January 2022 ruling.

• Washington Post, Perspective: Liz Cheney understood the assignment, Monica Hesse. She never lost sight of a fact Republicans couldn’t comprehend: The hearings aren’t about spanking Trump. They’re about saving America.

July 24

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. 

New York Times, Opinion: Religious Doctrine, Not the Constitution, Drove the Dobbs Decision, Linda Greenhouse, July 24, 2022 (print ed.). Ms. Greenhouse, (shown at right on the cover of her memoir and 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 to 2021.

My own way of keeping track of a Supreme Court term is to log each of the term’s decisions on a chart labeled by category: criminal law, administrative law, speech, federalism and so on. For this past term, one of my charts was, of course, labeled “abortion,” and naturally that’s where I recorded Dobbs v. Jackson Women’s Health Organization, the decision that overturned Roe v. Wade.

But the other day, going over my charts before filing them away to prepare for the next term, a realization struck me. I had put Dobbs in the wrong place. Along with the decision about the praying football coach and the one requiring Maine to subsidize parochial school tuition, Dobbs belongs under “religion.”

That assertion invites pushback, I’m well aware. But step back from today’s artificial arguments about originalism and history, and consider the powerful social movement that led consecutive Republican presidents to appoint anti-abortion justices and that then drove the abortion issue through the Supreme Court’s open door.

July 23

New York Times, After Roe, Republicans Sharpen Attacks on Gay and Transgender Rights, Trip Gabriel, July 23, 2022 (print ed.). Since the Supreme Court overturned Roe v. Wade, anti-gay rhetoric and calls to roll back L.G.B.T.Q. rights have grown bolder among Republicans.

Days after the Supreme Court overturned the right to abortion, Michigan’s Republican candidates for governor were asked if it was also time to roll back constitutional protections for gay rights.

None of the five candidates came to the defense of same-sex marriage.

“They need to revisit it all,” one candidate, Garrett Soldano, said at the debate, in Warren, Mich.

“Michigan’s constitution,” said another candidate, Ralph Rebandt, “says that for the betterment of society, marriage is between a man and a woman.”

Since the Supreme Court decision last month overturning Roe v. Wade, anti-gay rhetoric and calls to roll back established L.G.B.T.Q. protections have grown bolder. And while Republicans in Congress appear deeply divided about same-sex marriage — nearly 50 House Republicans on Tuesday joined Democrats in supporting a bill that would recognize same-sex marriages at the federal level — many Republican officials and candidates across the country have made attacking gay and transgender rights a party norm this midterm season.

In Texas, Attorney General Ken Paxton said after the Roe reversal that he would be “willing and able” to defend at the Supreme Court any law criminalizing sodomy enacted by the Legislature. Before that, the Republican Party of Texas adopted a platform that calls homosexuality “an abnormal lifestyle choice.”

July 19

Washington Post, Perspective: A 1792 case reveals that key Founders saw abortion as a private matter, Sarah Hougen Poggi and
Cynthia A. Kierner,.July 19, 2022. A basic premise of Supreme Court Justice Samuel A. Alito Jr.’s majority opinion in Dobbs v. Jackson Women’s Health Organization was that the Constitution can protect the right to abortion only if it is “deeply rooted in our history and traditions.” This statement complements Justice Amy Coney Barrett’s concept of originalism, or the idea that the court should interpret the Constitution by trying to infer “the meaning that it had at the time people ratified it.”

Alito’s evidence that abortion was always considered a criminal act, and thus something the Constitution should not protect, consisted of a single criminal case that was prosecuted in 1652 in the (Catholic) colony of Maryland. He then jumped ahead to laws that states enacted, mostly in the mid-to-late-19th century, to criminalize abortion. This cursory survey of abortion in early America was hardly complete, especially because it ignored the history of abortion in the years in which the Constitution was drafted and ratified.

In that era, abortion was governed by Anglo-American common law. Under this framework, the procedure was legal before “quickening,” or the moment the pregnant person first felt fetal movement — a highly subjective milestone that usually occurred around 16 to 22 weeks of gestation. Yet even after quickening, few people were prosecuted for abortion, let alone convicted — Alito’s opinion certainly did not offer contradictory evidence. The reason is simple: In the early republic, abortion was largely a private matter. It was not a cause for public concern, nor was abortion considered a criminal act.

In fact, contrary to Alito’s assertions in Dobbs, three Founders from Virginia — Thomas Jefferson (shown at right in an 1800 portrait by Rembrandt Peale), Patrick Henry and John Marshall — did not seek charges in a sensational court case from that era in which evidence of an abortion was discovered.

In 1792, 18-year-old unwed Nancy Randolph was impregnated by her 22-year-old brother-in-law and cousin, Richard Randolph. Nancy lived with Richard and his wife, her sister Judith, at their Cumberland County plantation in Virginia, aptly named “Bizarre.”

In September, Nancy and Judith’s cousin and sister-in-law, Jefferson’s daughter Martha Jefferson Randolph, visited and found Nancy unwell and unwilling to undress in front of her. Martha, who believed Nancy was pregnant, recommended gum of guaiacum, an herb known to treat “menstrual obstruction,” a euphemism for pregnancy. On her return home, she sent Nancy the herb, which she warned could “produce an abortion.”

No effort seems to have been made to determine whether the pregnancy had reached the stage of quickening

Abortion was later criminalized in Virginia and across other states in the 19th century. But these laws reflected the development of modern gynecology more than a change in morality. The curette, introduced in 1843, was widely adopted when dilators were developed in 1871, resulting in the “D and C” procedure, in which the cervix is dilated to allow for passage of a curette, which removes tissue from the uterus. Abortion transformed from a private, female matter to the purview of male medical professionals, who excluded other providers by influencing lawmakers.

Therefore, the more historically accurate conclusion is Justice Harry A. Blackmun’s majority opinion in Roe v. Wade (1973), that “at the time of the adoption of our Constitution, and throughout the majority of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. ”

Sarah Hougen Poggi is a Virginia-based obstetrician-gynecologist specializing in maternal-fetal medicine. Cynthia A. Kierner is a Virginia-based historian and author of “Scandal at Bizarre: Rumor and Reputation in Jefferson’s America.”

July 17

Proof, Investigative Commentary: Two Men Very Close to Ginni Thomas—One of Them One Step Removed From Trump’s Coup Plot—Come Under New Scrutiny, Seth Abramson, left, July 16-17, 2022. New evidence strongly suggests that it’s more imperative than ever that the House January 6 Committee get sworn testimony from the wife of Supreme Court Justice Clarence Thomas—and do so quickly.

Introduction: In early September of 2020, during the same several-week period that Ginni Thomas friend and Donald Trump lawyer Cleta Mitchell was successfully recruiting Ginni Thomas friend and former Clarence Thomas law clerk John Eastman to also become a Trump lawyer, Eastman was the head of the far-right Claremont Institute Center for Constitutional Jurisprudence.

Around this time—September 9—a member of Trump’s National Security Council, Michael Anton, authored a truly stunning article entitled “The Coming Coup?” The document is profoundly unsettling in retrospect, given Anton’s high position within Trumpworld’s intelligence apparatus.

In “The Coming Coup?”, Anton imagined the following scenario:

Violence around the time of the 2020 election propagated by left-wing groups; requiring the invocation of the Insurrection Act by then-President Trump....

Note that this very same sequence of events could equally be triggered if Trump and his political team were to stage a televised act of violence and chaos and then blame it on left-wing agitators in a premeditated way—which, in the event, is exactly what Trump used the Rudy Giuliani-Steve Bannon-John Eastman “war room” at the Willard Hotel in Washington to do during Insurrection Week.

Despite no evidence whatsoever that either Black Lives Matter activists or participants in the loose antifa movement had been present at the United States Capitol on that dark day, Trumpist partisans insisted that they had been—and immediately after the Capitol was cleared began pushing Trump to invoke the Insurrection Act on these (fraudulent) grounds.

[B]y September of 2020 it was Trump’s longtime friend, attorney, confidant, and fixer Michael Cohen who had told Congress and all America under oath that he knew for a fact that Donald Trump was not going to concede the 2020 presidential election no matter what happened in it.

Just days ago, a Mother Jones investigative report confirmed Cohen’s revelation with secretly recorded pre-election audio of Bannon—of Trump’s Insurrection Week Willard Hotel war room, which he shared with the Claremont Institute’s Eastman—confirming that in fact it was Trump who’d all along planned to execute the plot Anton wrote of for Eastman’s Claremont Institute back in September, just after Eastman came aboard Trump’s legal team at Ginni Thomas friend Cleta Mitchell’s invitation.

So Michael Cohen was right. And if you’re of the camp that believes—on significant evidence—that every accusation by Trumpworld is fact a confession, you can see in the coup plot outlined above by Trump adviser Anton precisely the sequence of events that would quite nearly be carried out by Bannon, Giulian, Eastman, Sidney Powell, Michael Lindell, Patrick Byrne, and Michael Flynn.

Within 90 days of Anton’s essay, Eastman would be working on making the seditious vision of Trump’s intel guru (which the Claremont Institute had eagerly published) a reality—though for Donald Trump, of course, rather than Joe Biden. Indeed, once Ginni Thomas friend Eastman joined Trump presidential adviser Ginni Thomas and the aforementioned Ginni Thomas friend and presidential adviser Cleta Mitchell as a Trump adviser, he appears to mostly have focused on executing Anton’s hypothetical.

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, legal 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.

July 13

Proof, Investigative Commentary: Did Donald Trump Commit Treason on December 18, 2020? The Arguments on Both Sides of a Suddenly Pressing Question, Seth Abramson, left, July 13, 2022. The July 12 House January 6 Committee hearing was filled with shocking testimony. Perhaps the most shocking testimony has thus far gone overlooked by major media analyses—but it may point to Treason.

The position of Proof since its founding on January 14, 2021, has been that Donald Trump did not commit treason on January 6, 2021, or at any time before then—not because he’s a loyal American citizen, because he is not, but because Treason (the federal criminal statute) comprises a set of evidentiary elements a prosecutor must prove at trial.

It has been the view of this former criminal defense attorney that the facts of the January 6 insurrection, as heinous as they are, simply do not match the language of the Treason statute. Maybe the statute has blind-spots and should be rewritten; certainly Trump should be indicted for any crimes he committed (and is still trying to commit, apparently) related to January 6; but criminal statutes cannot and should not be retroactive. Therefore, the thinking here has been, Trump is not eligible to be federally prosecuted for Treason.

Or so Proof thought, until yesterday’s televised House January 6 Committee hearing.

Yesterday the strictly legal question of whether Trump is a traitor to the United States—that is, whether he committed statutory treason—became a viable one for the first time. And though I searched cable news and other news sources last night in the hope of finding some analysis of this question, I couldn’t find any, so I’m providing it here.

Proof will here offer the case both “for” and “against” former President Trump having committed the crime of Treason on December 18, 2020. I’ll be citing the new evidence from yesterday’s highly disturbing Congressional hearing as well as evidence formerly disclosed by Congress and/or Proof.

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, legal 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.

Washington Post, Analysis: The administration clarifies emergency room laws around abortion, Rachel Roubein, July 13, 2022 (print ed.). The Biden administration is reminding doctors that they must terminate a pregnancy if doing so is necessary to stabilize a patient in an emergency medical situation.

The Department of Health and Human Services issued updated guidance yesterday — an attempt to clarify when providers can perform an abortion in states with bans on the procedure.

Did the memo contain new policy? No, it didn’t. The federal health department was pretty clear on that point. “This memorandum is being issued to remind hospitals of their existing obligation to comply with EMTALA and does not contain new policy,” a note at the top of the document states.

Instead, the guidance sought to cut through the confusion and arm physicians with a defense if they get sued by their state. Federal law trumps state abortion bans and protects clinicians’ judgment when administering treatment, regardless of the state they’re practicing in, HHS said.

Some providers welcomed the assurances, although it's unlikely to subdue Democratic activists’ calls for the White House to push the limits of what it can do to respond to the Supreme Court decision overturning Roe v. Wade’s decades-old protections. President Biden signed an executive order last week aimed at directing cabinet secretaries to take a number of steps to bolster abortion rights, which including shoring up emergency care.

Rolling Stone, Conservatives Called an Ohio Rape Case Fake News. Now an Arrest Has Been Made, Nikki McCann Ramirez, July 13, 2022. Right-wing commentators and politicians cast doubt on a report that a 10-year-old girl who traveled to get an abortion was raped. Law enforcement says the alleged perpetrator has confessed

An arrest has been made in the case of a 10-year-old girl who sought an abortion in Indiana after services were allegedly denied to her in Ohio. According to the Columbus Dispatch, Gershon Fuentes, age 27, was arrested on Tuesday. Law enforcement officials say Fuentes confessed to raping the child — whose identity has not been released to preserve her privacy — on at least two occasions, and has been charged with rape.

In the weeks leading up to the arrest, prominent right-wing pundits and government officials attempted to discredit the story as a liberal pro-abortion fantasy. The narrative exploded after a July 5 viral Twitter thread by Megan Fox, a writer at right-wing outfit PJ Media, claiming the “TIMING of this horrific story is too on the nose,” and questioning why sources were unwilling to publicly disclose sensitive information regarding the rape of a child.

The Washington Post’s Glenn Kessler also criticized the widespread coverage the story received and questioned if the Indianapolis Star had done appropriate diligence in confirming the existence of the girl. “An abortion by a 10-year-old is pretty rare,” Kessler wrote in his fact-check of the story.

South Dakota Governor Kristi Noem tweeted last Friday that the story “was fake to begin with. Literal #FakeNews from the liberal media,” after being questioned about it by CNN’s Dana Bash. Rolling Stone reached out to Governor Noem’s office, who did not immediately respond to a request for comment.

New York Times, Opinion: Why Overturning Roe Will Unleash a Legal Storm for the Supreme Court, Harry Litman (below right, a former U.S. attorney and deputy assistant attorney general), July 13, 2022 (print ed.). While laying waste to 50 years of abortion jurisprudence, the Supreme Court — or at least four of the five members of the new hard-right majority — took pains to reassure the country that it had executed an isolated hit on an “egregiously wrong” precedent that would not reverberate in other areas of constitutional law.

But the court will not fully control whether and when it will have to confront demands for similarly breathtaking changes. In fact, the justices’ agenda will be driven primarily by the political ferment in red states that are racing to capitalize on one of the most conservative blocs of five justices in at least 100 years.

And that in turn means that overturning Roe v. Wade will not take the issue of abortion out of the courts but rather intensify the battle there. Dobbs v. Jackson Women’s Health Organization will let loose a whirlwind of red-state lawmaking that will blow to the court’s door in the coming years, as will other constitutional cases of the sort the court tried to bracket off in Dobbs.

Washington Post, Analysis: The Senate returns, post-Roe, with few options, Leigh Ann Caldwell and Theodoric Meyer, July 13, 2022 (print ed.). The Senate is back in town for the first time since the Supreme Court overturned Roe v. Wade — with no clear legislative path to respond.

Unlike House Democrats, their Senate counterparts don't plan to move any abortion-related bills over the next four weeks they're in session, mostly because they lack the support of 10 Republicans needed to overcome a filibuster.

July 11

Proof, Investigative Commentary: Trump Addressed Extremists Via Zoom 96 Hours Before the Capitol Attack—Some of Whom Thereafter Trespassed on Capitol Grounds, Seth Abramson, left, July 10-11, 2022. Trump made two historically important phone calls on January 2, 2021. One is now the focus of a criminal investigation in Georgia. The other is almost never spoken of— but may be just as significant.

On Saturday, January 2, 2021, from 2PM ET until after 4PM ET, Donald Trump, his legal team, and several others spoke by Zoom to a much larger contingent of far-right insurrectionists than was previously understood. While it has long been known (and was reported on by Proof here) that Trump addressed nearly 300 GOP state legislators on the call—a call in which the then-president outlined the coup plot now known as “The Green Bay Sweep”—new audio evidence indicates that the composition of Trump’s January 2 audience was significantly broader than originally thought.

And further evidence developed by Proof and its readership establishes the profoundly troubling reasons why this was so. This new picture of Trump’s activities on January 2—the same day he sought to coerce Georgia’s Republican Secretary of State Brad Raffensperger into “finding” new votes for him through threats of prosecution and the end of Raffensperger’s political career, an event that is now the subject of a grand jury inquiry in Fulton County—underscores how close Trump’s January 2021 coup plot came to achieving its objective: the end of American democracy as we know it.

What Independent State Legislature Doctrine (ISL)?

According to the dictates of ISL, neither a state constitution nor a state supreme court nor a state executive has any final power over how elections are run. This includes the determination of how presidential electors—state delegates to the Electoral College—are chosen for the national presidential election held every four years.

The upshot is that, under ISL, state politicians can pick which presidential candidate has won their state every four years, taking this authority away from the voters of their state. ISL holds that state legislators can declare as the victor of any statewide vote whosoever they wish—even a candidate who has lost the popular vote in the state—and that no one anywhere in the state can stop them from doing so.

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, legal 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).

Washington Post, Opinion: Biden has put the forced-birth crusaders on notice, Jennifer Rubin, right, July 10, 2022. If there was any lingering doubts about President Biden’s commitment to abortion rights, he squashed them on Friday.

Biden slammed the Supreme Court, declaring that its decision to overturn abortion rights wasn’t "a constitutional judgment”; instead, he argued, it was "an exercise in raw political power.” And he brought the legal and historical receipts, accurately dinging the court for “playing fast and loose with the facts.” As he noted, “Even 150 years ago, the common law and many state laws did not criminalize abortion early in pregnancy, which is very similar to the viability line drawn by Roe.”

Biden was on target when he declared that "the court has made clear it will not protect the rights of women, period.” He added that the ruling "practically dares the women of America to go to the ballot box and restore the very rights they’ve just taken away.”

While Democrats and other defenders of women’s rights have been irate over Biden’s rhetorical reticence until now, there should be no argument that the immediate solution at the federal level is to produce Democratic majorities in the midterms that will codify Roe v. Wade and, in the Senate, carve out an exception for the filibuster to restore women’s fundamental rights. Biden has issued multiple executive orders on the issue, such as protecting interstate travel and access to FDA-approved abortion medication, but critics are off base in imagining there is some storehouse of executive powers that can override the Supreme Court and state law.

Politico, How Abortion Is Sundering Amy Coney Barrett’s Hometown, Adam Wren, July 11, 2022 (print ed.). South Bend, Indiana, is a blue city home to a conservative Catholic University. And both sides are taking their former neighbor’s vote on Dobbs very personally.

Like in many American towns, protestors and celebrants poured into the streets and city plazas of this northern Indiana city in the hours and days after the Supreme Court reversed abortion rights.

On Friday evening after the Dobbs decision came down, in the John Hunt Plaza in front of the Morris Civic Auditorium, the protesters began hoisting the now-familiar signs: HANDS OFF MY UTERUS. ABORTION IS HEALTHCARE. OUR BODIES OUR CHOICE. KEEP IT LEGAL. KEEP IT SAFE.

Unlike in a lot of towns, though, the jeerers and the cheerers happened to have a onetime neighbor and fellow South Bender as a justice on the court: Amy Coney Barrett, who still keeps a presence in the town, having only relatively recently sold her 3,800-square-foot brick home in the leafy and pristine Harter Heights neighborhood near her former employer, the University of Notre Dame Law School.

Politico, Biden’s abortion response curbed by fears of another Supreme Court showdown, Adam Cancryn, July 11, 2022. The potential impact of the high court has left the White House feeling restricted by what post-Roe actions it can take.

Last month, the Supreme Court overturned Roe v. Wade. Now, that same body is scaring the Biden administration from responding with bolder steps.

As President Joe Biden faces calls for more drastic action on abortion, the legal team vetting his options has found itself preoccupied by a single pressing concern: That any action they could take would simply be struck down by the very court that put them in this place.

Those fears have complicated and slowed the White House’s post-Roe actions, with officials worried a more aggressive response from Biden could backfire, further entrench anti-abortion restrictions and open the door to even more severe limits on his executive power.

The administration already has rejected ideas pushed by the left — like a health emergency declaration and opening abortion clinics on federal land — over concerns about the legal implications. But the concern over litigation is so significant that the White House has also closely guarded the options under discussion to prevent GOP attorneys general and anti-abortion groups from preparing lawsuits ahead of time, a person with knowledge of the discussions said.

Nearly everything the White House tries or has considered is at risk of drawing a court challenge, administration officials and legal experts said. The end result: More than two weeks after the Supreme Court abolished federal abortion rights, Biden advisers are still trying to determine what in their arsenal has the best shot of survival in a court system that appears stacked against them.
Biden announces executive order to protect abortion access

“I know it’s frustrating and it made a lot of people very angry,” Biden said in a Friday speech. “But the truth is, and it’s not just me saying it … when you read the decision, the court has made clear it will not protect the rights of women.”

The administration’s cautious approach has disheartened Democrats who note the White House had months to prepare for this very scenario. It’s also prompted questions in some corners of the party about whether Biden is capable of meeting a crisis moment for reproductive rights and Americans’ broader faith in the courts.

Washington Post, Buttigieg says officials like Kavanaugh ‘should expect’ public protest, María Luisa Paúl, July 11, 2022. The transportation secretary was asked about protesters gathering at a Morton’s steakhouse where the Supreme Court justice was dining. Two days after Supreme Court Justice Brett M. Kavanaugh fled abortion rights protesters at a Morton’s steakhouse in D.C., Chasten Buttigieg — husband of Transportation Secretary Pete Buttigieg — tweeted his assessment of the incident.

“Sounds like he just wanted some privacy to make his own dining decisions,” Chasten Buttigieg wrote, alluding to Kavanaugh’s recent vote to overturn Roe v. Wade, the 1973 court decision that had guaranteed abortion access on the basis of Americans’ right to privacy.

The tweet drew criticism from some conservatives, including former Trump adviser Stephen Miller, who decried what he called an endorsement of “the use of mob intimidation tactics” as “wildly irresponsible.” But Pete Buttigieg defended his husband’s remarks during a Sunday interview with Fox News’s Mike Emanuel.

July 10

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Washington Post, Opinion: There is no conservative legal movement, Adrian Vermeule, J.D. (Professor at Harvard Law School), July 10, 2022 (print ed.). Originalism, textualism and judicial restraint all got short shrift in this term’s major environmental-regulations decision.

On the last day of the Supreme Court’s term, in a case called West Virginia v. Environmental Protection Agency, the Court declared that the Clean Air Act does not clearly authorize the EPA to create a Clean Power Plan — in other words, to set standards for emissions from existing power plants with a view to encouraging “generation shifting” of electricity production toward sources that emit less carbon dioxide.

If this does not sound like the stuff of great events, it was made so by the court’s approach to the case. Chief Justice John G. Roberts Jr., right, writing for the majority, announced expressly, for the first time, that the court would apply a “major questions doctrine.” According to the majority, the doctrine holds that in “extraordinary cases” the court will apply a “different approach” than the ordinary legal principles governing the interpretation of statutes. Instead, it will demand clear congressional authorization for agency action that is, in the judges’ view, “highly consequential,” posing questions of “economic and political significance.”

Commentators rushed to discuss the significance of West Virginia v. EPA for the conservative legal movement, to which they assumed the justices in the majority belong, perhaps because the court limited abortion rights and strengthened gun rights in the same term.

But that framing rests on an error: In reality, as this case makes clear, there is no conservative legal movement, at least if legal conservatism is defined by jurisprudential methods rather than a collection of results. West Virginia v. EPA illustrates that every last methodological tenet professed by the movement will be downplayed, qualified or abandoned when the chance arises to limit the regulatory authority of the federal agencies, especially in environmental matters.

The conservative legal movement distinguishes itself from other approaches by declaring itself united not around “results-oriented jurisprudence” but rather around a set of supposedly neutral methods for interpreting legal texts. Conservative jurisprudence — again, as advertised — has four pillars: originalism, textualism, traditionalism and judicial restraint. Although different conservatives emphasize one or the other approach, all are staples of Federalist Society events and lauded in the opinions of conservative justices.

It is grimly hilarious, then, that the court’s opinion in West Virginia v. EPA follows none of these methods.

Adrian Vermeule is the Ralph S. Tyler Jr. professor of constitutional law at Harvard Law School. His most recent book is "Common Good Constitutionalism."

Washington Post, Opinion: The Supreme Court’s gun decision will lead to more violent crime, John J. Donohue, J.D., Ph.D., below right, Professor at Stanford Law School, July 10, 2022 (print ed.). In one of its major decisions this term, the Supreme Court struck down a 109-year-old New York law that said that only people who could demonstrate a compelling need to carry a gun could do so. Simply living in a dangerous neighborhood and wanting to protect oneself from crime wasn’t good enough, New York said — a judgment the court deemed unconstitutional, as it announced “an individual’s right to carry a handgun for self-defense outside the home.”

Whatever one’s view of the best way to interpret the Second Amendment, we unfortunately know what effects this ruling will have in the relatively few states that still restrict the carrying of weapons (such as New York, California, New Jersey and Massachusetts).

It will cause a spike in violent crime, lead to more guns being stolen, and result in the police solving fewer violent-crime cases.

We know that’s true because research has established that that’s what has happened in other states that have liberalized their gun-carry laws. No doubt, as gun-rights advocates never tire of arguing, people carrying guns are able to thwart some small number of crimes. But the data shows that those positive effects are swamped by a more general rise in violent gun crime and related negative outcomes.

In the last five years, more than a dozen empirical studies have concluded that right-to-carry laws increase violent crime. The latest found that, of the 47 largest cities in the United States, those in the states adopting right-to-carry laws experienced a roughly 30 percent increase in firearm-related violent crime (that is, homicide, aggravated assault and robbery). This city-based research — conducted by me, Stanford researchers Matthew Bondy and Samuel Cai, and Philip J. Cook of Duke — buttresses earlier findings, rooted in state-level data, of increased violent crime.

Washington Post, Gun Violence Investigation: The staggering scope of U.S. gun deaths goes far beyond mass shootings, Mark Berman, Lenny Bernstein, Dan Keating, Andrew Ba Tra Byn and Artur Galocha, July 10, 2022 (print ed.). Gun purchases rose to record levels in 2020 and 2021, according to a Washington Post analysis, and gun deaths reached a 25-year peak in 2021.

• A scourge of horror hits Highland Park, leaving behind death and fear
• There are too many mass shootings for the U.S. media to handle
• Therapy dogs and questions: How Highland Park’s children are coping

July 6

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.

Rolling Stone, SCOTUS Justices ‘Prayed With’ Her — Then Cited Her Bosses to End Roe, Kara Voght and Tim Dickinson, July 6, 2022. A right-wing evangelical activist was caught on tape bragging that she prayed with Supreme Court justices. The court’s majority cited a legal brief that her group filed while overturning Roe v. Wade

At an evangelical victory party in front of the Supreme Court to celebrate the downfall of Roe v. Wade last week, a prominent Capitol Hill religious leader was caught on a hot mic making a bombshell claim: that she prays with sitting justices inside the high court. “We’re the only people who do that,” Peggy Nienaber said.

This disclosure was a serious matter on its own terms, but it also suggested a major conflict of interest. Nienaber’s ministry’s umbrella organization, Liberty Counsel, frequently brings lawsuits before the Supreme Court. In fact, the conservative majority in Dobbs v. Jackson Women’s Health, which ended nearly 50 years of federal abortion rights, cited an amicus brief authored by Liberty Counsel in its ruling.

In other words: Sitting Supreme Court justices have prayed together with evangelical leaders whose bosses were bringing cases and arguments before the high court.

Nienaber is Liberty Counsel’s executive director of DC Ministry, as well as the vice president of Faith & Liberty, whose ministry offices sit directly behind the Supreme Court. She spoke to a livestreamer who goes by Connie IRL, seemingly unaware she was being recorded. “You actually pray with the Supreme Court justices?” the livestreamer asked. “I do,” Nienaber said. “They will pray with us, those that like us to pray with them.” She did not specify which justices prayed with her, but added with a chortle, “Some of them don’t!” The livestreamer then asked if Nienaber ministered to the justices in their homes or at her office. Neither, she said. “We actually go in there.”

Nienaber intended her comments, broadcast on YouTube, to be “totally off the record,” she says in the clip. That’s likely because such an arrangement presents a problem for the Orlando-based Liberty Counsel, which not only weighed in on the Dobbs case as a friend of the court, but also litigated and won a 9-0 Supreme Court victory this May in a case centered on the public display of a religious flag.

The Supreme Court did not respond to a request for comment. Liberty Counsel’s founder, Mat Staver, strenuously denied that the in-person ministering to justices that Nienaber bragged about exists. “It’s entirely untrue,” Staver tells Rolling Stone. “There is just no way that has happened.” He adds: “She has prayer meetings for them, not with them.” Asked if he had an explanation for Nienaber’s direct comments to the contrary, Staver says, “I don’t.”

But the founder of the ministry, who surrendered its operations to Liberty Counsel in 2018, tells Rolling Stone that he hosted prayer sessions with conservative justices in their chambers from the late-1990s through when he left the group in the mid-2010s. Rob Schenck, who launched the ministry under the name Faith and Action in the Nation’s Capital, described how the organization forged ministry relationships with Samuel Alito, Clarence Thomas, and the late Antonin Scalia, saying he would pray with them inside the high court. Nienaber was Schenk’s close associate in that era, and continued with the ministry after it came under the umbrella of Liberty Counsel.

Louis Virelli is a professor at Stetson University College of Law who wrote a book about Supreme Court recusals. He’s blunt in his assessment: “Praying with a group that filed an amicus brief with a court,” he says, “is a problem.”

In the shadow of the high court, across the street from its chambers, sits a cluster of unassuming row houses known only to the initiated as “Ministry Row.” The strip is host to evangelical political groups that have spent the past several decades pushing Beltway conservatives to embrace the religious right’s political causes — and, most of all, reverse Roe v. Wade. The street view offers few clues as to what transpires behind the painted brick facades, save for a granite slab inscribed with the Ten Commandments planted in the grassy patch before a modest cream-colored Victorian with maroon trim.

The home serves as Faith & Liberty’s headquarters. The Ten Commandments statue had been placed there by Schenck, an evangelical minister famous for orchestrating high-profile anti-abortion stunts, such as shoving an aborted fetus in a plastic container into the face of former President Bill Clinton during the 1992 campaign. Schenck had opened the ministry in the 1990s as Faith and Action in the Nation’s Capital, a nonprofit dedicated to ending federal abortion rights. The organization operated on a “utopian ‘trickle-up’ theory” of influence: building access “higher and higher up within the government, until we got to the top, my ultimate target — members of Congress, U.S. senators, cabinet secretaries, Supreme Court justices — even presidents,” Schenck wrote in his 2018 autobiography.

July 4

Washington Post, Trust in Supreme Court falters after Roe decision, Yvonne Wingett Sanchez, Patrick Marley and Matthew Brown, July 4, 2022 (print ed.). For abortion-rights supporters, the sudden striking down of what was long considered settled law was the latest evidence of a broken democratic system.

For most of her life, Marshelle Barwise viewed the U.S. Supreme Court as soberly dedicated to protecting the rights of all Americans, especially for those who aren’t White men.

Then the court overturned Roe v. Wade.

Although Barwise personally opposes abortion, she disagreed with the rolling back of the nationwide right to an abortion and saw it as yet another example of how American democracy is broken.

“There’s so much divisiveness even within our own government, how can we trust it? Everything is so divisive,” said Barwise, 37, a new mom who works in financial sales and considers herself politically independent.

For years, she has dutifully voted, believing in a democratic system that’s supposed to represent everyone. Yet, she said, it seems as if a powerful few are making decisions that don’t match what a majority wants — or are failing to take any action at all.

“We have all gone through where we’ve heard people say all the right things, and then they get in a position of power, and they do everything opposite — or a segment, a small portion, just enough to appease or hopefully get reelected,” she said.

With Congress gridlocked and presidents facing challenges when they act on their own, the Supreme Court — historically the most apolitical branch of government — has seemingly become the one most capable of quickly reshaping society.

Across the battleground states of Arizona, Georgia and Wisconsin, many people who oppose the abortion decision said they didn’t expect Roe to fall because it had been in place for nearly five decades and, while controversial, had woven itself into American society. It was considered settled law, so its sudden demise was unsettling for many — and made them worry about what could follow.

The ruling catapults abortion into a top issue in all three states, where races are underway for governor and U.S. Senate.

July 3

Norma McCorvey, left at center, the anonymous plaintiff named "Roe" in historic abortion litigation before the Suprem Court, celebrates with lawyer Gloria Allred, dressed in blue, as shown in a J. Scott Applewhite photo for the Associated Press used in an FX documentary, as in many other places.

New York Times, Investigation: Norma McCorvey, the woman at the center of Roe v. Wade, led a conflicted life, as seen in her personal papers, Joshua Prager, July 3, 2022 (print ed.). Norma McCorvey, the Jane Roe at the center of Roe v. Wade, was an imperfect plaintiff.

When she undertook Roe as a young single woman in Dallas, she gave no thought to the fight for reproductive rights. She was barely getting by as a waitress, had twice given birth to children placed for adoption, and simply wanted an abortion. She later lied about how she got pregnant, saying that she had been raped. When, more than a decade later, she came clean and wished to join in earnest the movement she had come to represent, its leaders denied her a meaningful part in their protests and rallies.

“I think they’re embarrassed,” McCorvey told Texas Monthly in 1993. “They would like for me to be college-educated, with poise and little white gloves.”

Still, Roe remained central to McCorvey’s life, bound to her by those same two crosscurrents that would frame the abortion debate in the United States — religion and sex.

McCorvey, shown in a 1989 photo, had hundreds of partners, nearly all of them women, she said. She also worked for a time as a prostitute in Dallas. But she had been raised a Jehovah’s Witness and saw sex as sinful. That her plaintiffship had made abortion legal left her fearing for her soul. That was part of the reason she became born again in 1995, she said — the better to join the fight against Roe.

Still, despite her public reversal, McCorvey — like a majority of Americans now — felt that abortion ought to be legal through the first trimester. She shared this in the first interview she ever gave, days after Roe, and she shared it again in her last, speaking with me from a hospital bed at the end of her life. (During my decade of research for “The Family Roe,” a book on Roe and its plaintiff, I spent hundreds of hours interviewing McCorvey.)

Her private papers — which I found in the garage of her former partner, just before the house was lost to foreclosure — offer a firsthand insight into McCorvey as she really was: a woman whose torments and ambivalences about abortion mirror those that divide the country, and who continues to be relevant in the new, post-Roe world.

McCorvey was 13 in October 1960 when she checked into a motel room with a female friend who then accused McCorvey of trying “inappropriate things” with her. The Juvenile Court of Dallas declared McCorvey “a delinquent child,” as this document attests.

McCorvey was sent to a Catholic boarding school, and later, at 16, to a state boarding school for “delinquent girls.” She enjoyed being away from her family, and had a run of girlfriends. But her mother, Mary Sandefur, beat her for being gay, Sandefur said in an interview, and McCorvey came to see sex and her sexuality as sinful and illicit. Years after she got pregnant for the third time, and sought an abortion, she told people that she been raped, presenting herself as not a sinner but a victim.

McCorvey was the third consecutive generation in her family to get pregnant out of wedlock, according to documents and interviews with members of her family. Her grandmother quickly married, while her mother was made to leave town, give birth in secret and surrender her child to her parents.

In January 1972, McCorvey’s brother Jimmy visited her in Dallas. The 20-something siblings were poor, and Jimmy noted his every expense in his daily planner.

McCorvey worked many jobs to get by — waitress and drug dealer, prostitute and painter, respiratory therapist and bond-runner. Money was a constant struggle. And when, in 1969, she got pregnant and found an unlicensed doctor who would perform an abortion, she could neither afford his $500 fee nor the cost of flying to California, where abortion was legal.

A few days after the Roe ruling, in January 1973, The Baptist Press, the news service of the Southern Baptist Convention, spoke with McCorvey. It was her first-ever interview. She said she believed it wrong to have an abortion at any point after the first trimester.

In time, McCorvey turned her plaintiffship into a career, and changed her public stance repeatedly, depending on her audience. But her private opinion on abortion did not change: On the day after her Christian rebirth, as well as at the end of her life, she repeated what she had first told The Baptist Press in 1973: that abortion should be legal through the first trimester.

July 2

Shown above are the six partisan Republicans, led by Chief Justice John Roberts, shown at top left, who are undertaking radical changes in laws governing all Americans. All but Clarence Thomas, top center, were named by presidents who lost the popular vote for presidency but were installed via the Electoral College system. 

Washington Post, With sweep and speed, Supreme Court’s conservatives ignite new era, Robert Barnes, July 2, 2022. Observers say this term should be seen as much as the beginning of an era at the court as the culmination of years of work to solidify a conservative majority.

The avalanche of change achieved by the Supreme Court’s conservative majority this term spans the breadth of American life, and its work draws comparisons to the most momentous decisions in the court’s history.

Its signature moment — erasing the constitutional right to abortion extended by the court nearly 50 years ago in Roe v. Wade — would have been enough to highlight the term. The court’s ruling in Dobbs v. Jackson Women’s Health Organization was the rare decision whose impact was felt within hours, as Republican-led states began prohibiting elective abortions, and will play out over years.

But the justices of what scholars say is one of the most conservative courts in decades did far more than that.

They continued a string of victories for conservative religious groups that dismantle the old rules regarding the role of religion in public life. After a decade of Supreme Court inaction, they expanded Second Amendment jurisprudence to bless the right to carry a weapon outside the home. And in a final flourish, the court’s dominant six-justice bloc limited the ability of government agencies to issue sweeping protections of health, safety and the environment without specific authorization from Congress.

With Justice Clarence Thomas, 74, the oldest member of the coalition and Amy Coney Barrett the youngest at 50, the term should be seen as much as the beginning of an era at the court as the culmination of years of work to solidify a conservative majority.

New York Times, Book Criticism: Revisiting Justice Stephen Breyer’s Curious (and Strangely Timed) Defense of the Court, Jennifer Szalai, July 2, 2022 (print ed.). In a book published last year, Breyer depicted the Supreme Court as an apolitical institution that sticks to its guiding principles.

There’s something undeniably ironic about a Supreme Court justice publishing a book defending the court as unflaggingly dedicated to its guiding principles and then, less than a year later, signing on to a dissent that explicitly lays out how “this court betrays its guiding principles.”

But then Justice Stephen G. Breyer, left, the author of the terribly timed The Authority of the Court and the Peril of Politics, which was published last September, has become a font of unintended irony. Last week, when the conservative majority on the Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Organization, effectively overturning Roe v. Wade and undoing a nearly 50-year-old constitutional right, it had been nine months — or 40 weeks and three days, to be exact — since Breyer’s treatise was born.

In an author’s note, Breyer mentions in passing that the book began as remarks for the 2021 Scalia Lecture at Harvard Law School.

What he neglects to say is that the conservative Justice Antonin Scalia, right, was known for exactly the kind of ideological reasoning whose very existence Breyer so assiduously tries to deny. “If I catch myself headed toward deciding a case on the basis of some general ideological commitment, I know I have gone down the wrong path, and I correct course,” Breyer writes. “My colleagues think the same way.”

The pugnacious Scalia was also known as a stylist, which Breyer decidedly is not; the lines in Breyer’s book are so unrelentingly bland that I began to wonder if the forgettable prose was deliberate — an attempt to steer clear of anything too sharp or intriguing, for fear of disrupting his careful tone of earnest sincerity. 

The Authority of the Court reads like what it is — an avuncular polemic constructed by an exemplary technocrat, blithely secure in the nobility of his intentions. In light of the Supreme Court’s recent bombshell decisions upending precedents on abortion rights and New York’s concealed-carry gun laws, the book takes on an added layer of unreality, as if Breyer brought a PowerPoint to a knife fight.

Parts of The Authority of the Court seem to be drawn from one of his earlier books, Making Our Democracy Work, right, published in 2010, in which he explained that respect for the rule of law was hard-won and shouldn’t be taken for granted. If you didn’t know any better, you wouldn’t get the sense from Breyer’s new book that much has changed in the last decade.

July 1

Washington Post, ‘Take me up to the Capitol now’: How close Trump came to joining rioters, Isaac Arnsdorf, Josh Dawsey and Carol D. Leonnig, July 1, 2022. Trump’s demands to lead a march to Capitol Hill sheds new light on his mindset as the siege began.

Toward the end of 2020, then-President Donald Trump began raising a new idea with aides: that he would personally lead a march to the Capitol on the following Jan. 6.

Trump brought it up repeatedly with key advisers in the Oval Office, according to a person who talked with him about it. The president told others he wanted a dramatic, made-for-TV moment that could pressure Republican lawmakers to support his demand to throw out the electoral college results showing that Joe Biden had defeated him, the person said.

The excursion that almost happened came into clearer focus this week, as the House committee investigating the attack on the Capitol on Jan. 6, 2021 presented explosive testimony and records detailing Trump’s fervent demands to lead his supporters mobbing the seat of government. Though Trump’s trip was ultimately thwarted by his own security officers, the new evidence cuts closer to the critical question of what he knew about the violence in store for that day.

Trump has acknowledged his foiled effort to reach the Capitol. “Secret Service wouldn’t let me,” he told The Washington Post in April. “I wanted to go. I wanted to go so badly. Secret Service says you can’t go. I would have gone there in a minute.”

But as Trump repeatedly floated the idea in the weeks leading up to Jan. 6, several of his advisers doubted he meant it or didn’t take the suggestion seriously. One senior administration official said Trump raised the prospect repeatedly but in a “joking manner.”

As a result, the White House staff never turned Trump’s stated desires into concrete plans. Press officers made no preparations for a detour to the Capitol, such as scheduling an additional stop for the motorcade and the pool of reporters who follow the president’s movements. There was no operational advance plan drafted for the visit. No speech was written for him to deliver on the Hill, and it wasn’t clear exactly what Trump would do when he got there, said the person who talked with Trump about the idea.

From left: Cassidy Hutchinson; Michael Cohen; Randy Credico (Washington Post Photos by Demetrius Freeman; Jahi Chikwendiu; and Astrid Riecken).

Washington Post, Investigation: How Trump World pressures witnesses to deny his possible wrongdoing, Rosalind S. Helderman, Josh Dawsey and Jacqueline Alemany, July 2, 2022 (print ed.). Donald Trump and his allies shower potential witnesses with private flattery while publicly blasting those who cross him.

As rumors flew in the spring of 2018 that Donald Trump’s longtime lawyer Michael Cohen was preparing to flip on his former boss and offer potentially damaging testimony to federal prosecutors, Cohen received an email.

“You are ‘loved,’ ” read the email, which indicated it was relaying comments from former Trump lawyer Rudy Giuliani, and was quoted in special counsel Robert S. Mueller III’s 2019 report. “Sleep well tonight … you have friends in high places.”

It was one of a number of times messages of cajoling support or bullying encouragement were delivered to potentially important Mueller witnesses.

And it was strikingly similar to the communications Rep. Liz Cheney (R-Wyo.) said on Tuesday had been received by witnesses who have testified for the House committee investigating the attack on the U.S. Capitol on Jan. 6, 2021.

Evidence across multiple state, federal and congressional investigations points to a similar pattern: Trump and his close allies privately shower potential witnesses with flattery and attention, extending vague assurances that staying loyal to Trump would be better than crossing him.

Meanwhile, Trump publicly blasts those who offer testimony against him in bluntly personal terms, offering a clear example to others of the consequences of stepping out of line.

“Donald Trump never changes his playbook,” Cohen said in an interview. “He behaves like a mob boss, and these messages are fashioned in that style. Giving an order without giving the order. No fingerprints attached.”

A Trump spokesman did not respond to a request for comment.

At Tuesday’s hearing, Cheney recounted that committee members have asked each witness connected to Trump’s administration or campaign whether they have been contacted by former colleagues or others who have “attempted to influence or impact their testimony.”

She described two responses that she said raised “significant concern.”

A witness, Cheney said, told the committee about receiving phone calls indicating that Trump reads transcripts and “to keep that in mind” during interviews with the committee.

“What they said to me is, as long as I continue to be a team player, they know I’m on the right team. I’m doing the right thing. I’m protecting who I need to protect. You know, I’ll continue to stay in good graces in Trump World,” Cheney, the committee’s vice chair, said the witness testified.

Cheney described another call received by a witness. “[A person] let me know you have your deposition tomorrow. He wants me to let you know he’s thinking about you. He knows you’re loyal and you’re going to do the right thing when you go in for your deposition,” she said, quoting the witness.

Cheney did not identify the witnesses who had been contacted. But a person familiar with the committee’s work said both quotes came from Cassidy Hutchinson, the 25-year-old former aide to Trump chief of staff Mark Meadows. Her explosive testimony Tuesday that Trump knew the rioters were armed when he urged them to march on the Capitol has become a signature moment in the committee’s investigation.

Related stories below:

• New York Times, Trump Group Pays for Jan. 6 Lawyers, Raising Concerns of Witness Pressure
• Washington Post, Analysis: Secret Service’s Anthony Ornato has repeatedly disputed key White House conversations, Aaron Blake

New York Times, The ruling on the Environmental Protection Agency case is the product of a multiyear G.O.P. drive to tilt courts against climate action, Coral Davenport, July 1, 2022 (print ed.). The case decided on Thursday, West Virginia v. Environmental Protection Agency, is the product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders to use the judicial system to rewrite environmental law, weakening the executive branch’s ability to tackle global warming.

Coming up through the federal courts are more climate cases, some featuring novel legal arguments, each carefully selected for its potential to reduce the government’s ability to regulate industries and businesses that produce greenhouse gases.

“The West Virginia vs. E.P.A. case is unusual, but it’s emblematic of the bigger picture. A.G.s are willing to use these unusual strategies more,” said Paul Nolette, a professor of political science at Marquette University who has studied state attorneys general.

The plaintiffs say they want to hem in what they call the administrative state, the E.P.A. and other federal agencies that set rules and regulations that affect the American economy. That should be the role of Congress, which is more accountable to voters, said Jeff Landry, the Louisiana attorney general and one of the leaders of the Republican group bringing the lawsuits.

But Congress has barely addressed the issue of climate change. Instead, for decades it has delegated authority to the agencies because it lacks the expertise possessed by the specialists who write the complicated rules and regulations, and who can respond quickly to changes in the science, particularly when Capitol Hill is gridlocked.

West Virginia v. E.P.A. is also notable for the tangle of connections between the plaintiffs and the Supreme Court justices who will decide their case. The Republican plaintiffs share many of the donors who were behind efforts to nominate and confirm five of the Republicans on the bench — John G. Roberts, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

“It’s a pincer move,” said Lisa Graves, executive director of the progressive watchdog group True North Research and a former senior Justice Department official. “They are teeing up the attorneys to bring the litigation before the same judges that they handpicked.”

Washington Post, Editorial: The Supreme Court ends a disastrous term by gutting climate change rules, Editorial Board, July 1, 2022 (print ed.). The Supreme Court ended its term Thursday with another controversial ruling — not because the court had to but because the conservative majority wanted to. The result in West Virginia v. Environmental Protection Agency is that the EPA is now far more limited in its ability to fight climate change. It also means other federal agencies are on notice that the court might tell them, too, that they suddenly lack the authority to respond to major problems in the areas Congress has tasked them to oversee.

The case revolves around Section 111 of the Clean Air Act, which authorizes the EPA to impose limits on pollution sources based on the “best system of emissions reduction.” During the Obama administration, the agency determined the best system to cut emissions from power plants involved shifting away from highly polluting coal-fired electricity to cleaner natural gas and renewables. It was not widely disputed.

But the court declared that the agency overstepped its authority when it wrote a rule that would encourage fuel-switching, because Congress did not clearly task the agency “with balancing the many vital considerations of national policy implicated in the basic regulation of how Americans get their energy.” Reshaping the electricity sector is a “major question” of policy, the court argued, and the EPA must show that Congress clearly delegated to the agency powers of such breadth.

“But that is just what Congress did when it broadly authorized EPA in Section 111 to select the ‘best system of emission reduction’ for power plants,” Justice Elena Kagan countered in a dissent. “The ‘best system’ full stop — no ifs, ands, or buts of any kind relevant here.”

Congress regularly gives agencies flexibility to respond to novel problems. The Clean Air Act gave the EPA broad powers to regulate pollutants, because the agency can leverage scientific expertise to address significant environmental threats with a speed and exactitude that Congress cannot. “The majority today overrides that legislative choice,” Justice Kagan wrote. “In so doing, it deprives EPA of the power needed — and the power granted — to curb the emission of greenhouse gases.”

Going forward, the court did not forbid the EPA from writing a new greenhouse gas rule — just under substantial limits that seem likely to make any resulting regulation ineffective. The decision also raises broader questions about when and how all federal agencies, not just the EPA, can act in the public interest. Some observers said they worried the court would use this case to aggressively rein in the administrative state. The court did not go as far as they had feared, but judges could still use the new precedent to overturn all sorts of rules they dislike.

June

June 30

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.

New York Times, Supreme Court Limits E.P.A.’s Authority on Emissions, Adam Liptak, June 30, 2022. The Supreme Court on Thursday limited the Environmental Protection Agency’s ability to regulate carbon emissions from power plants, dealing a blow to the Biden administration’s efforts to address climate change.

The vote was 6 to 3, with the court’s three liberal justices in dissent, saying that the majority had stripped the E.P.A. of “the power to respond to the most pressing environmental challenge of our time.”

The decision appeared to rule out approaches to regulation like a cap-and-trade system at a time when experts are issuing dire warnings on climate change.

The ruling further signals that the court’s conservative majority is deeply skeptical of the power of administrative agencies to address major issues.

The “major questions doctrine” requires Congress to authorize in plain and direct language any sweeping actions by administrative agencies that could transform the economy.

The doctrine, a judicially created principle of statutory interpretation, follows from the premise that Congress, as the Supreme Court put it in a 2001 decision, “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouse holes.”

Washington Post, Biden chastises court, backs setting aside filibuster to codify abortion rights, John Wagner and Mariana Alfaro, June 30, 2022. Today, President Biden chastised the Supreme Court for “outrageous behavior” and said he would support an exception to the Senate’s filibuster rules to make it easier to write abortion protections into law.

Biden, speaking on the world stage in Madrid, called the court’s decision last week to overturn Roe v. Wade “destabilizing” and said an exception should be made to a Senate rule that requires 60 votes for most bills to advance.

Meanwhile, Judge Ketanji Brown Jackson is poised Thursday to make history, becoming the first Black woman to join the U.S. Supreme Court. Jackson is scheduled to be sworn in during a ceremony at the court at noon Eastern time, just minutes after Justice Stephen G. Breyer makes his retirement official. Biden’s nominee was confirmed by the Senate in April but has been waiting for Breyer to conclude his tenure.

Before the ceremony, the court is expected to issue its final two opinions of a highly significant term. The remaining cases concern the “Remain in Mexico” immigration policy enacted under President Donald Trump and the federal government’s authority to regulate carbon emissions from power plants.

Washington Post, Supreme Court lets N.Y. vaccine mandate stand without religious exemption, Ann E. Marimow and Robert Barnes, June 30, 2022. Three conservative justices, Samuel Alito, Neil Gorsuch and Clarence Thomas, objected to their colleagues’ refusal to review the state’s requirement.

Over the objection of three justices, the Supreme Court on Thursday left in place New York’s coronavirus vaccine requirement for health-care workers that does not include a religious exemption.

The court’s action came on the final day of the term, as the justices also announced which cases they will review when the court reconvenes in October. Notably, they declined to take additional cases concerning significant rulings this month to eliminate the nationwide right to abortion and expand the right to carry firearms in public. Instead, the justices returned to lower courts more than a half-dozen related matters and instructed those judges to look again at their rulings on the basis of the Supreme Court’s new guidance.

In the New York vaccination case, the court had rejected in December an emergency request from doctors, nurses and other medical workers who said they were being forced to choose between their livelihoods and their faith. They said they should receive a religious exemption because the state’s rule allows one for those who decline the vaccine for medical reasons.

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). She is shown below at right on June 30 with the retiring Associate Justice Stephen Breyer, whom she replaced.

New York Times, Ketanji Brown Jackson Becomes First Black Female Supreme Court Justice, Annie Karni, June 30, 2022. Ketanji Brown Jackson took the judicial oath just after noon on Thursday, becoming the first Black woman to serve on the Supreme Court.

Justice Jackson, 51, was confirmed in April, when the Senate voted 53 to 47 on her nomination. She is replacing Justice Stephen G. Breyer, 83, who stepped down with the conclusion of the court’s current term.

Justice Jackson took both a constitutional oath, administered by Chief Justice John G. Roberts Jr., and a judicial oath, administered by Justice Breyer, making her the nation’s 116th justice and sixth woman to serve on the nation’s highest court.

The brief swearing-in ceremony took place in the West Conference Room at the Supreme Court, before a small gathering of Judge Jackson’s family, including her two daughters. Her husband, Dr. Patrick G. Jackson, held the two Bibles on which she swore: a family Bible and a King James Version that is the property of the court.

“I’m pleased to welcome Justice Jackson to the court and to our common calling,” Chief Justice Roberts said and shook her hand. He added that there would be a formal investiture in the fall, but the oaths would “allow her to undertake her duties, and she’s been anxious to get to them without any further delay.”

Justice Jackson made no statement.

Her rise to the court will not change its ideological balance — the newly expanded conservative wing will retain its 6-to-3 majority.

She joins at a time of sharp polarization about the court, especially in the wake of its ruling striking down Roe v. Wade and ending the constitutional right to abortion, and in the wake of rulings in which the court has shown its deep skepticism of the power of administrative agencies to address major issues facing the country.

Minutes after Justice Jackson’s swearing-in, anti-abortion protesters staging a peaceful sit-in were arrested outside the Supreme Court.

The Biden administration and Justice Jackson have underscored the historic import of her elevation to the nation’s highest court.

Washington Post, A radical change in how federal elections are conducted will be reviewed in court’s next term, Robert Barnes, June 30, 2022. The justices will look next term at a case from North Carolina, where Republicans want to restore a redistricting map rejected by the state’s supreme court.

The Supreme Court on Thursday said it will consider what would be a radical change in the way federal elections are conducted, giving state legislatures sole authority to set the rules for contests even if their actions violated state constitutions and resulted in extreme partisan gerrymandering for congressional seats.

The court will look next term at a case from North Carolina, where Republicans want to restore a redistricting map that was drawn by the GOP-led legislature but rejected as a violation of the state constitution by the state’s supreme court.

The Supreme Court in March let the North Carolina high court ruling stand for the upcoming fall elections. But three of the court’s conservative justices at the time said they were skeptical state courts had a role in refereeing the rules for federal elections, and a fourth said the issue was ripe for consideration.

Supreme Court rejects GOP request to overturn congressional maps in NC, Pennyslvania

State courts have played an influential role in the congressional redistricting battles following the 2020 Census. Judges have reined in Republican gerrymanders in North Carolina and Pennsylvania, for instance, and rejected maps drawn by Democratic-led legislatures in New York and Maryland.

But the effort to have the Supreme Court examine what is called the independent state legislature doctrine has been a Republican-led effort. The GOP controls both houses of the legislature in 30 states.

The doctrine comes from the U.S. Constitution’s election clause, which says that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” While most often invoked in the redistricting process, the independent state legislature doctrine would also give lawmakers control over issues such as voter qualification, voting by mail and other election procedures.

The U.S. Supreme Court, protected from protesters by fencing (Photo by Douglas Rissing).

Politico, Analysis:The conservative Supreme Court is just getting warmed up, Josh Gerstein and Alexander Ward, June 30, 2022. Affirmative action, voting rights and state power over elections are on the line next.

The massive jolt the new conservative Supreme Court supermajority delivered to the political system last week by overturning Roe v. Wade could just be the beginning.

The next targets could include voting rights, state courts’ power over elections, affirmative action and laws banning discrimination against LGBTQ people.

Even as the justices wrapped up their work and began their summer break Thursday following an unusually rocky term, the court signaled that its poor standing with the public won’t deter justices from taking up ideologically-charged disputes that could sow havoc in American politics.

In addition to overturning a nearly half-century-long federal right to an abortion, the court struck down gun-licensing laws in the most populous states, expanded state funding for religious schools, broadened the rights of public-school employees to pray publicly at work and halted lower court orders requiring two states to redraw congressional boundaries to give minority voters a better chance of electing candidates of their choice.

“What the court did just on abortion, guns and congressional power in the last eight days—that alone is momentous [but] if these justices stay together over the next few years, I don’t even think the first shoe has dropped,” University of California at Irvine Law Professor Rick Hasen said. “There’s so much more the Supreme Court could do to change American society.”

On Thursday, minutes after dealing a severe blow to President Joe Biden’s plan to reduce power-plant emissions to combat climate change, the high court announced it will take up a case from North Carolina next term that could give state legislatures vast power to draw district lines and set election rules even if state courts, commissions or executive officials disagree.

The so-called independent state legislature theory has lingered at the fringes of election-law debates for years, but was seized upon by former President Donald Trump in 2020 in his unsuccessful efforts to overturn Biden’s win.

“It’s kind of uncharted territory,” Hasen said. “It could have some far-reaching and unintended consequences.”

 New York Times, The ruling on the Environmental Protection Agency case is the product of a multiyear G.O.P. drive to tilt courts against climate action, Coral Davenport, June 30, 2022. The case decided on Thursday, West Virginia v. Environmental Protection Agency, is the product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders to use the judicial system to rewrite environmental law, weakening the executive branch’s ability to tackle global warming.

Coming up through the federal courts are more climate cases, some featuring novel legal arguments, each carefully selected for its potential to reduce the government’s ability to regulate industries and businesses that produce greenhouse gases.

“The West Virginia vs. E.P.A. case is unusual, but it’s emblematic of the bigger picture. A.G.s are willing to use these unusual strategies more,” said Paul Nolette, a professor of political science at Marquette University who has studied state attorneys general.

The plaintiffs say they want to hem in what they call the administrative state, the E.P.A. and other federal agencies that set rules and regulations that affect the American economy. That should be the role of Congress, which is more accountable to voters, said Jeff Landry, the Louisiana attorney general and one of the leaders of the Republican group bringing the lawsuits.

But Congress has barely addressed the issue of climate change. Instead, for decades it has delegated authority to the agencies because it lacks the expertise possessed by the specialists who write the complicated rules and regulations, and who can respond quickly to changes in the science, particularly when Capitol Hill is gridlocked.

West Virginia v. E.P.A. is also notable for the tangle of connections between the plaintiffs and the Supreme Court justices who will decide their case. The Republican plaintiffs share many of the donors who were behind efforts to nominate and confirm five of the Republicans on the bench — John G. Roberts, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

“It’s a pincer move,” said Lisa Graves, executive director of the progressive watchdog group True North Research and a former senior Justice Department official. “They are teeing up the attorneys to bring the litigation before the same judges that they handpicked.”

New York Times, Here are the major Supreme Court decisions in 2022 so far, Adam Liptak and Jason Kao, Updated June 30, 2022. The leak in May of a draft of the decision overruling Roe v. Wade seemed to expose new fault lines at the Supreme Court in the first full term in which it has been dominated by a 6-to-3 conservative supermajority, including three justices appointed by President Donald J. Trump. The court’s public approval ratings have been dropping, and its new configuration has raised questions about whether it is out of step with public opinion.

According to a recent survey from researchers at Harvard, Stanford and the University of Texas, the public is closely divided on how the court should rule in several major cases. In many of them, though, respondents held starkly different views based on their partisan affiliations. Here is a look at the major cases this term.

New York Times, Opinion: Dobbs Is Not the Only Reason to Question the Legitimacy of the Supreme Court, Ezra Klein, June 30, 2022. Since the Dobbs decision came down, I’ve heard a lot of liberals lamenting the Republican theft of the Supreme Court.

As the story goes, Mitch McConnell stole the majority when he refused to give Merrick Garland so much as a hearing in 2016, holding the vacancy open until Donald Trump took office in 2017. McConnell’s justification was his deep commitment to small-d democracy: No seat should be filled in a presidential election year; the people should be given a chance to weigh in. In 2020, he lit that invented principle aflame when he rushed to confirm Amy Coney Barrett to replace Ruth Bader Ginsburg. The vote on Barrett took place eight days before Election Day.

McConnell, right, gaslit the nation, but he didn’t steal any seats. Nothing he did was against the rules, which was why Democrats found themselves powerless to stop him. Liberals, in their anger, have too often ignored the logic of McConnell’s actions. He understood what too many have ignored: America’s age of norms is over. This is the age of power. And there’s a reason for that.

Let’s start here: The Supreme Court has changed. In the ’50s and ’60s, you would have had a hard time inferring a justice’s political background from his votes, as this analysis by Lee Epstein and Eric Posner shows. In the ’90s, Byron White, a Democratic appointee, had a more conservative voting record than all but two of the Republican-appointed justices — Antonin Scalia and William Rehnquist. John Paul Stevens, an anchor of the court’s liberal wing until his retirement in 2010, was appointed by Gerald Ford, a Republican.

But this record of independence was understood, by the parties that produced it, as a record of failure. The vetting process by which nominees are chosen was revamped to all but guarantee ideological predictability. In recent years, “justices have hardly ever voted against the ideology of the president who appointed them,” Epstein and Posner find.

Our political system is not designed for political parties this different, and this antagonistic. It wasn’t designed for political parties at all. The three branches of our system were intended to check each other through competition. Instead, parties compete and cooperate across branches, and power in one can be used to build power in another — as McConnell well understood.

Making matters worse is that the Supreme Court has gone from being undemocratic to being anti-democratic. Lifetime appointments are iffy under the best of circumstances, but the vagaries of retirements and deaths have given Republicans a control that makes a mockery of the public will.

Five of the court’s six Republican justices were appointed by presidents who initially took office after losing the popular vote (and, in the case of George W. Bush, after a direct intercession by five of the court’s conservatives in Bush v. Gore). Donald Trump was able to make more appointments in one term than Barack Obama was able to make in two.

New York Times, Wisconsin Court Validates a Republican Strategy to Preserve Power, Michael Wines, June 29, 2022. The Senate’s method of keeping G.O.P. board members in office, by refusing to confirm replacements nominated by Gov. Tony Evers, was endorsed by a State Supreme Court ruling.

The Wisconsin Supreme Court on Wednesday effectively handed the Republican-controlled State Senate broad authority over the composition of state boards and commissions, three and a half years into the term of a Democratic governor whose duties include naming board members.

The ruling allows a Republican member of the state Natural Resources Board whose term expired in May 2021, Frederick Prehn, to keep his position. Dr. Prehn had refused to step down, arguing that a replacement to his post has not been confirmed.

The court’s 4-3 opinion, which fell along ideological lines, turned on a technical question of when the seat on the board would be legally vacant. But its practical effect was to affirm a strategy devised by the State Senate to keep Republican board members in office simply by refusing to confirm replacements nominated by Gov. Tony Evers, right, a Democrat.

June 29

Cassidy Hutchinson, former aide to Trump White House chief of staff Mark Meadows, is sworn in to testify as the House select committee investigating the Jan. 6 attack on the U.S. Capitol continues to reveal its findings of a year-long investigation, at the Capitol in Washington, Tuesday, June 28, 2022 (Associated Press Photo by Jacquelyn Martin).

New York Times, Aide’s Testimony Highlights Legal Risk for Trump, Alan Feuer and Glenn Thrush, Updated June 29, 2022. Experts Say Revelations Could Be Path Toward Future Charges.

It was one of the most dramatic moments in a presentation filled with them: Just before President Donald J. Trump went onstage near the White House last year and urged his supporters to “fight like hell” and march on the Capitol, an aide testified on Tuesday, he was told that some of them were armed.

It was also a potentially consequential moment for any prosecution of Mr. Trump, legal experts said. Knowing that his crowd of supporters had the means to be violent when he exhorted them to march to the Capitol — and declared that he wanted to go with them — could nudge Mr. Trump closer to facing criminal charges, legal experts said.

“This really moved the ball significantly, even though there is still a long way to go,” said Renato Mariotti, a legal analyst and former federal prosecutor in Illinois.

Knowing that his supporters were armed when he urged them to march on Jan. 6 could expose former President Trump to charges, legal experts said.

The testimony by Cassidy Hutchinson, a former White House aide, chipped away at any potential defense that Mr. Trump was just expressing views about election fraud.

Donald Trump rouses supporters in a speech outside the White House just prior to the mob's assault on the U.S. Capitol, which contained elected members of Congress giving final certification of November election results on Jan. 6, 2021 in advance of President-elect Joe Biden's planned Inaugution.

New York Times, Former President Trump did not care about the potential for violence on Jan. 6, Cassidy Hutchinson told the House panel, Luke Broadwater and Michael S. Schmidt, June 29, 2022 (print ed.). The first White House aide to testify publicly before the House committee investigating the Jan. 6 attack provided a damning account on Tuesday of how former President Donald J. Trump, knowing his supporters were armed and threatening violence, urged them to march to the Capitol and sought to join them there, privately siding with them as they stormed the building and called for the hanging of the vice president.

The testimony from the aide, Cassidy Hutchinson, was extraordinary even by the standards of Mr. Trump’s norm-busting presidency and the inquiry’s remarkable string of revelations this month. In fly-on-the-wall anecdotes delivered in a quiet voice, she described how frantic West Wing aides failed to stop Mr. Trump from encouraging the violence or persuade him to try to end it, and how the White House’s top lawyer feared that Mr. Trump might be committing crimes as he steered the country to the brink of a constitutional crisis.

Drawing from conversations she said she overheard in the West Wing and others contemporaneously relayed to her by top officials, Ms. Hutchinson, a 26-year-old who was an aide to Mark Meadows, right, Mr. Trump’s final chief of staff, provided crucial details about what the former president was doing and saying before and during the riot. She painted a portrait of an unhinged president obsessed with clinging to power and appearing strong, and willing to tolerate violence as a result — as long as it was not directed at him.

Washington Post, Jan. 6 Committee Hearings: Trump sought to lead armed mob to Capitol, aide says, Mike DeBonis and Jacqueline Alemany, June 29, 2022 (print ed.). Cassidy Hutchinson, who was an assistant to then-White House Chief of Staff Mark Meadows, delivered stunning revelations about the day of the attack. She told Congress that Donald Trump knew his supporters were carrying weapons, physically assailed a Secret Service agent and mused about pardoning rioters.

A former White House official revealed explosive new details Tuesday about President Donald Trump’s actions on Jan. 6, 2021, telling Congress that he knew his supporters were carrying weapons, insisted on personally leading the armed mob to the Capitol, physically assailed the senior Secret Service agent who told him it was not possible, expressed support for the hanging of his own vice president, and mused about pardoning the rioters.

The testimony of Cassidy Hutchinson, who was an assistant to then-White House Chief of Staff Mark Meadows, was the most chilling to date in the House select committee’s Jan. 6 investigation. Recounting granular detail and private dialogue, she presented to the public a penetrating account of Trump’s actions and mind-set as the Capitol came under siege from his own supporters, who were determined to stop the counting of electoral votes and impede the certification of Joe Biden’s victory.

Testifying alone, her appearance punctuated by clips from taped depositions given by herself and others, the 25-year-old Hutchinson detailed how Trump and other powerful officials around him alternately encouraged, tolerated and excused the insurrection as it unfolded in front of them.

Washington Post, Analysis: All the bombshells Cassidy Hutchinson dropped about Trump and Jan. 6, Amber Phillips, June 29, 2022 (print ed.). The congressional committee investigating the Jan. 6, 2021, insurrection held a surprise hearing Tuesday that featured a key witness: Cassidy Hutchinson, who was a top aide to former president Donald Trump’s last chief of staff, Mark Meadows.

Hutchinson is not a household name, but she has become central to the committee investigation — sitting for taped interviews and being the only live witness at the Tuesday hearing. In live testimony, Hutchinson provided an intimate, detailed and shocking look inside the West Wing and at the president specifically on the day of the attack. Trump issued blanket denials of almost all of these allegations.

Here are some of her most stunning revelations about Trump: 1. Trump knew his supporters had weapons — and encouraged them to march on the Capitol. And he tried to go, too.

June 24

Top Headlines

• New York Times, SUPREME COURT OVERTURNS ROE V. WADE, Adam Liptak
• Washington Post, Abortion will soon be banned in 13 states. Here’s which could be next
• New York Times, Thomas’s concurring opinion raises questions about what rights might be next
• Washington Post, Live updates: Biden says restoring abortion rights is up to voters
• Washington Post, With Roe’s demise, abortion will soon be banned across much of red America
• Steady, Commentary: A day at the Supreme Court that shakes America to its core, Dan Rather 
• Washington Post, Opinion: The Supreme Court eviscerates abortion rights and its own legitimacy, Jennifer Rubin
• Washington Post, Opinion: Overturning Roe could threaten rights conservatives hold dear, Julia Bowes

Top Stories

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.

 New York Times, SUPREME COURT OVERTURNS ROE V. WADE, Adam Liptak, June 24, 2022. Ends Constitutional Right to Abortion; Draft Opinion Had Leaked.

The Supreme Court on Friday overruled Roe v. Wade, eliminating the constitutional right to abortion after almost 50 years in a decision that will transform American life, reshape the nation’s politics and lead to all but total bans on the procedure in about half of the states.

The ruling will test the legitimacy of the court and vindicate a decades-long Republican project of installing conservative justices prepared to reject the precedent, which had been repeatedly reaffirmed by earlier courts. It will also be one of the signal legacies of President Donald J. Trump, who vowed to name justices who would overrule Roe. All three of his appointees were in the majority in the 6-to-3 ruling.

The decision, which echoed a leaked draft opinion published by Politico in early May, will result in a starkly divided country in which abortion is severely restricted or forbidden in many red states but remains freely available in most blue ones.

Chief Justice John G. Roberts Jr., right, voted with the majority but said he would have taken “a more measured course,” stopping short of overruling Roe outright. The court’s three liberal members dissented.

The case, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, concerned a law enacted in 2018 by the Republican-dominated Mississippi Legislature that banned abortions if “the probable gestational age of the unborn human” was determined to be more than 15 weeks. The statute, a calculated challenge to Roe, included narrow exceptions for medical emergencies or “a severe fetal abnormality.”

Mississippi’s sole abortion clinic sued, saying the law ran afoul of Roe and Planned Parenthood v. Casey, the 1992 decision that affirmed Roe’s core holding.

Lower courts ruled for the clinic, saying the law was plainly unconstitutional under Roe, which prohibited states from banning abortions before fetal viability — the point at which fetuses can sustain life outside the womb, currently about 23 weeks.

Judge Carlton W. Reeves of Federal District Court in Jackson, Miss., blocked the law in 2018, saying the legal issue was straightforward and questioning the state lawmakers’ motives.

“The state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Judge Reeves wrote. “This court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.”

The decision, eliminating the constitutional right to abortion after almost 50 years, will lead to all but total bans on the procedure in about half of the states.

It will also be one of the signal legacies of former President Trump: All three of his appointees were in the majority ruling.

Washington Post, Abortion will soon be banned in 13 states. Here’s which could be next, Caroline Kitchener, Kevin Schaul, N. Kirkpatrick, Daniela Santamariña and Lauren Tierney, June 24, 2022. The Supreme Court released a decision on Friday overturning Roe v. Wade, touching off a cascade of antiabortion laws that probably will take effect across roughly half the country.

Without the landmark precedent in place, the national abortion landscape will change quickly. First, 13 states with “trigger bans,” designed to take effect as soon as Roe is overturned, will ban abortion within 30 days. Several other states where recent antiabortion legislation has been blocked by the courts are expected to act next, with lawmakers moving to activate their dormant legislation. A handful of states also have pre-Roe abortion bans that could be brought back to life.

New York Times, Thomas’s concurring opinion raises questions about what rights might be next, Sheryl Gay Stolberg, June 24, 2022. Justice Clarence Thomas, in his concurring opinion overturning Roe v. Wade, laid out a vision that elicited fears about what other rights could disappear: The same rationale that the Supreme Court used to declare there was no right to abortion, he said, should also be used to overturn cases establishing rights to contraception, same-sex consensual relations and same-sex marriage.

In the majority opinion written by Justice Samuel A. Alito, left, the court said that nothing in its decision “should be understood to cast doubt on precedents that do not concern abortion.” Justice Thomas said he agreed with that.

However, he noted that in its rationale, the court’s majority found that a right to abortion was not a form of “liberty” protected by the due process clause of the 14th Amendment to the Constitution.

Then, he took aim at three other landmark cases that relied on that same legal reasoning: Griswold v. Connecticut, a 1965 decision that declared married couples had a right to contraception; Lawrence v. Texas, a 2003 case invalidating sodomy laws and making same-sex sexual activity legal across the country; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry.

Justice Thomas, right, wrote that the court “should reconsider” all three decisions, saying it had a duty to “correct the error” established in those precedents. Then, he said, after “overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions” protected the rights they established.

This kind of language is just what advocates for reproductive rights and for L.G.B.T.Q. rights have been fearing. Defenders of the right to abortion have repeatedly warned that if Roe fell, the right to contraception and same-sex marriage would be next.

Abortion opponents, who fought hard to overturn Roe, have insisted they have no interest in trying to undo the right to contraception.

But already, states like Missouri are trying to restrict access to contraception by banning public funding for certain methods: intrauterine devices and the so-called morning after pill. And some Republicans, notably Senator Marsha Blackburn of Tennessee, have said that the Griswold case was wrongly decided. Earlier this year, Ms. Blackburn called Griswold “constitutionally unsound.”

Washington Post, Live updates: Biden says restoring abortion rights is up to voters, Robert Barnes and Ann E. Marimow, June 24, 2022. Newsom, West Coast governors pledge ‘sanctuary’ for abortion rights; Dick’s Sporting Goods to reimburse travel expenses for employees who seek abortion; Dispatch from Jackson, Miss: Vow to keep seeing patients.

President Biden called the Supreme Court’s decision a “tragic error” and implored voters to elect candidates in November who will support abortion rights and broader rights to privacy.

The U.S. Supreme Court, protected from protesters by fencing (Photo by Douglas Rissing).

Steady, Commentary: A day at the Supreme Court that shakes America to its core, Dan Rather (right, author and former CBS Evening News anchor and managing editor), June 24, 2022.

What to say that hasn’t been said but needs to be said again, and again, and again:

This is not a court of humble jurists who are bound in any way by fidelity to precedent, the law, or common sense. There is nothing “conservative” about these damaging decisions, or the men and woman who have imposed their extreme views upon the American populace.

Right-wing politicians decry “elitism,” but what is more elitist than unelected and unaccountable activists using the language of legal argumentation as a fig leaf for their naked exercise of power?

There is no way that these decisions would pass a vote of the American public. Indeed, a majority of the justices were installed by presidents who lost the popular vote. And the polling on the issues these rulings tear asunder suggests that what these justices are doing is unpopular — in many cases, very unpopular.

But they sneer from their echo chamber of extremism. They are emboldened by a system that has been fixed, with the complicity of Mitch McConnell and others, to advantage minority viewpoints by leveraging a branch of government not designed to be a political actors' stage in order to circumvent the legislative and executive branches.

Where to begin, and where will it end?The Supreme Court has further cemented its role as a reactionary force in American life.

Today it was abortion, on top of recent decisions on gun regulations, public funding for religious schools, and Miranda rights. Soon they will likely gut environmental regulations, and we can guess at what comes next — gay marriage? Contraception?

We can’t let this moment pass without recognizing what a horrific decision today's is, and how it will relegate women to second-class status in decision-making over their own bodies. This will lead to a host of suffering and likely death. It will imprison women where control will be imposed by the state. It is the opposite of freedom. It is a right that existed — and still should.

The Supreme Court depends on its legitimacy, and today that is as tattered as the constitutional rights on which it has trampled. The Roberts court will be marked as a cabal of intemperance that made America far less safe and far less free. It will be noted for its zealotry and its cynical embrace of the ends justifying the means.

But as with all chapters of history, how our present is ultimately viewed depends on what comes next. Will these rulings lead to outrage-fueled activism that upends the political system, or apathy and defeatism? Will the majority mobilize? Will there be reforms? Will there be a recalibration of the current balance of power?

I leave you today with the words of Sherrilyn Ifill, civil rights lawyer and president and director-counsel emeritus of the NAACP Legal Defense and Educational Fund. She has experienced the fight from the trenches of justice, and her perspective mirrors my own. I could not have expressed it better.

Remember that we have never seen the America we’ve been fighting for. So no need to be nostalgic. Right on the other side of this unraveling is opportunity. If we keep fighting no matter what, take care of ourselves & each other, stay strategic & principled, & use all our power.

Washington Post, With Roe’s demise, abortion will soon be banned across much of red America, Caroline Kitchener, June 24, 2022. The Supreme Court’s decision to strike down the landmark precedent will prompt immediate changes to the country’s abortion landscape. The tremors from Friday’s sweeping Supreme Court decision to strike down Roe v. Wade will ripple across the country almost immediately, with roughly half of all states poised to ban or drastically restrict abortion.

Thirteen states will outlaw abortion within 30 days with “trigger bans” that were designed to take effect as soon as Roe was overturned. These laws make an exception for cases where the mother’s life is in danger, but most do not include exceptions for rape or incest.

In many states, trigger bans will activate as soon as a designated state official certifies the decision, which Republican lawmakers expect to happen within minutes.

“They just need to acknowledge, ‘Yes, this has occurred,’ ” said Arkansas state Sen. Jason Rapert (R), who has championed much of his state’s antiabortion legislation, including its trigger ban. “I’ll be happy to see the butcher mill in Little Rock, Arkansas, shut down for good.”

Washington Post, Opinion: The Supreme Court eviscerates abortion rights and its own legitimacy, Jennifer Rubin, right, June 24, 2022. While we knew from the leak of Justice Samuel A. Alito Jr.’s majority opinion that Roe v. Wade and nearly 50 years of constitutional precedent were hanging by a thread, and yet when the opinion came down Friday morning — a virtual copy of the leaked draft — many Americans no doubt felt a wave of disbelief, anger, dread and fear.

The court’s decision is so emphatic, and so contemptuous of the principle of stare decisis, that one wonders whether the unvarnished radicalism of the decision will finally rouse millions of Americans to the threat posed by a court untethered to law, precedent or reason.

 As the dissent (by Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor) made clear, the majority opinion is as radical as any in its history: “It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs. An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions.”

National Public Radio (NPR), All Things Considered Interview: Former governor whose bill was at the center of Roe ruling reacts to SCOTUS' decision, Mary Louise Kelly, June 24, 2024. NPR's Mary Louise Kelly talks with Phil Bryant, below right, the Republican former governor of Mississippi who signed a bill that bans abortions after 15 weeks.

MARY LOUISE KELLY, HOST:

Well, let's turn now to the state that brought us to this moment, Mississippi.

KELLY: Jackson Women's Health Organization is the only abortion provider in the state and the defendant in the case that the Supreme Court decided today. It concerned a state law enacted in 2018. The governor who signed that bill into law was then-Governor Republican Phil Bryant, and he joins me now. Governor Bryant, welcome.

PHIL BRYANT, right: I'm glad to be with you. It's a glorious day for those of us that are very pro-life.

KELLY: Well, I think people will have already gathered that this is the ruling you were hoping for. Can I ask your first thought when you heard the news?

BRYANT: Well, I was prayerful. To God be the glory, as - which I told everyone. There'll be a lot of politicians, and rightfully so, people who've helped that would try to take credit for this. That will be those that are campaigning for office that would say, that's exactly what I would have done. But when we had the opportunity in 2018 to protect innocent lives starting at 15 weeks, and of course, we then - we passed a more stringent anti-abortion bill after that. But we just believe that it's murder. We believe that it's a tearing apart of the human body in the womb. And so we were very happy, I was, and I know many of us that heard that ruling today.

KELLY: Walk me through what exactly changes now in Mississippi. You have a trigger law that kicks in.

BRYANT: We do.

KELLY: Mississippi, as we mentioned, only has one clinic providing abortions. What do these next days look like in your state?

BRYANT: Well, I think people will start thinking about something called individual responsibility. I think they're going to have to take into consideration that I might not be able to get an abortion on demand. I might not be able to do that just for my convenience. And so I think - I hope and I believe that there will be adults who will be more responsible and not bring about a life that they do not want.

This is not the most complicated thing in the world. Any seventh and eighth grader probably begins to realize where babies come from. And so for an adult female to say, well, you know, I just don't - I don't think this is what I want to do right now, I hope they will see more clearly through that process. And I know things happen. Look. I'm just saying that the life of that unborn child was where we were thinking and what we were doing when all of this began and even into today.

KELLY: In your years in office, you, of course, were governor for everybody in Mississippi, whatever their politics.

BRYANT: Correct.

KELLY: What do you say to Mississippians, like some of the ones we heard in that tape from outside the clinic today, who believe it is the right of women to decide what happens inside their own bodies and who are devastated...

BRYANT: I...

KELLY: ...At today's decision?

BRYANT: I would say first you need to kneel and pray to God, who is the God of everyone, that in your heart, you can understand that that is a living human being. And so try as you might to find God in this. Try to pray and have him open your eyes and come into your heart and realize this is your child. This is a human being who has the right to life, liberty and the pursuit of happiness. And you're about to take all that away for your convenience. Pray. That's what I would tell them. Pray hard.

KELLY: When you say women are choosing an abortion because it is for their convenience, I just want to push you on that, because there are a lot of women who would say, this is not about my convenience. This is not a choice anyone wants to make. This is about my right to control my body.

BRYANT: And I would tell men and women that you have a responsibility. We all did, and all of us are - fall short of the grace of God. But please consider your responsibilities. And, men, take the responsibility of being the father. So we don't want to wish - we're not hardhearted. We understand these difficult situations. It's why we work so hard here to make adoption easier for families who can't have children and families who want desperately to have a child. So look. I'm not mad at anyone. I'm not judging anyone. I am just saying that the Supreme Court upheld a law today that said that the states have the right to regulate abortions and that we will continue to do that within the confines of the Constitution of the United States laws.

KELLY: Phil Bryant. He was the governor of Mississippi from 2012 to 2020. Governor Bryant, thank you.

BRYANT: Thank you.

KELLY: One of many voices we are hearing from today as we cover this landmark ruling by the Supreme Court.

Washington Post, Opinion: Overturning Roe could threaten rights conservatives hold dear, Julia Bowes, June 24, 2022. Parental rights stem from the same liberty that the Supreme Court just began rolling back.

Recent Headlines

• New York Times, With Roe Set to End, Many Women Worry About High-Risk Pregnancies
• Washington Post, This Texas teen wanted an abortion. She now has twins
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June 23

New York Times, Live Updates: Supreme Court Blocks New York Law Limiting Guns in Public, Adam Liptak and Emily Cochrane, June 23, 2022. Ruling Will Make It Harder for States to Restrict Guns; The 6-3 decision was based on a broad interpretation of the Second Amendment and comes after a spate of mass shootings reinvigorated the debate over gun control.

The Supreme Court on Thursday struck down a New York law that placed strict limits on carrying guns outside the home, saying it was at odds with the Second Amendment.

The ruling was only the court’s second major statement on the scope of the individual constitutional right to keep and bear arms and its first on how the right applies to firearms in public places. The decision has far-reaching implications, particularly in cities that had sought to address gun crimes by putting restrictions on who can carry them.

The ruling comes after a spate of mass shootings reinvigorated the debate over gun control. The Senate is close to passing a bipartisan package of gun safety measures, a major step toward ending a yearslong stalemate in Congress.

The vote was 6 to 3, with the court’s three liberal members in dissent. 

The ruling was only the court’s second major statement on the scope of the individual constitutional right to keep and bear arms and its first on how the right applies to firearms in public places. The decision has far-reaching implications, particularly in cities that had sought to address gun crimes by putting restrictions on who can carry them.

The New York law requires that people seeking a license to carry a handgun outside their homes show a “proper cause.” California, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island have similar laws, according to briefs filed in the case.

Two men who were denied the licenses they sought in New York sued, saying that “the state makes it virtually impossible for the ordinary law-abiding citizen to obtain a license.”

The men, Robert Nash and Brandon Koch, were authorized to carry guns for target practice and hunting away from populated areas, state officials told the Supreme Court, and Mr. Koch was allowed to carry a gun to and from work.

“Nash and Koch did not receive unrestricted licenses because neither demonstrated a nonspeculative need to carry a handgun virtually anywhere in public,” Barbara D. Underwood, New York’s solicitor general, told the justices in a brief.

In 2008, in District of Columbia v. Heller, the Supreme Court recognized an individual right to keep guns in the home for self-defense. Since then, it has been almost silent on the scope of Second Amendment rights.

Indeed, the court for many years turned down countless appeals in Second Amendment cases. In the meantime, lower courts generally sustained gun control laws.

But they were divided on the question posed by the case from New York: whether states can stop law-abiding citizens from carrying guns outside their homes for self-defense unless they can satisfy the authorities that they have a good reason for doing so.

Last year, for instance, the United States Court of Appeals for the Ninth Circuit, in San Francisco upheld Hawaii’s law by a 7-to-4 vote.

“Our review of more than 700 years of English and American legal history reveals a strong theme: Government has the power to regulate arms in the public square,” Judge Jay S. Bybee, who was appointed by President George W. Bush, wrote for the majority.

The federal appeals court in Chicago, on the other hand, struck down an Illinois law that banned carrying guns in public. And a federal appeals court in Washington struck down a restrictive District of Columbia law that it said amounted to “a total ban on most D.C. residents’ right to carry a gun.”

The court’s reluctance to hear Second Amendment cases changed as its membership shifted to the right in recent years. President Donald J. Trump’s three appointees — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — have all expressed support for gun rights.

And the Supreme Court’s most conservative members have long deplored the court’s reluctance to explore the meaning and scope of the Second Amendment.

In 2017, Justice Clarence Thomas wrote that he had detected “a distressing trend: the treatment of the Second Amendment as a disfavored right.”

“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous,” Justice Thomas wrote. “But the framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense.”

In 2019, not long after Justice Kavanaugh’s arrival, the court agreed to hear a challenge to a New York City gun regulation that had allowed residents to keep guns in their homes to take them to one of seven shooting ranges in the city. But it prohibited them from taking their guns to second homes and shooting ranges outside the city, even when the guns were unloaded and locked in containers separate from ammunition.

After the court granted review, the city repealed the regulation, and the court eventually dismissed the case as moot. In a concurring opinion, Justice Kavanaugh wrote that he was concerned that lower courts were not sufficiently sensitive to Second Amendment rights. “The court should address that issue soon,” he wrote.

In June, however, the court turned down some 10 appeals in Second Amendment cases. Since it takes only four votes to grant review, there is good reason to think that the court’s conservative wing, which at the time had five members, was unsure it could secure Chief Justice John G. Roberts Jr.’s vote.

Justice Barrett’s arrival changed that calculus. Six months after she joined the court, it agreed to hear the New York case, New York State Rifle & Pistol Association v. Bruen, No. 20-843.

Senator Kirsten Gillibrand of New York criticized the ruling, saying “it shows this is an activist court that is undermining precedent and undermining common sense state laws that protect citizens and uphold public safety.”

The decision has far-reaching implications, particularly in cities that had sought to address gun crimes by putting restrictions on who can carry them.

It also comes after a spate of mass shootings has renewed the debate over gun control, and as a group of senators is racing to pass legislation. Follow updates.

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

New York Times, Justice Clarence Thomas, who wrote the opinion on the gun law case, is the court’s most committed advocate of gun rights, Adam Liptak, June 23, 2022. Justice Clarence Thomas, who wrote the majority opinion in the gun case decided on Thursday, is the Supreme Court’s most ardent supporter of the Second Amendment.

After the Supreme Court established an individual constitutional right to own guns in a pair of decisions in 2008 and 2010, it turned down appeals from lower-court rulings sustaining gun control laws in the next decade.

Justice Thomas responded by issuing a series of sharp dissents accusing his colleagues of treating the Second Amendment as a second-class right.

In 2015, when the court refused to hear a challenge to a Chicago suburb’s ordinance that banned semiautomatic assault weapons and large-capacity magazines, Justice Thomas said the court had abdicated its responsibility to enforce the constitutional right to keep and bear arms.

“Roughly five million Americans own AR-style semiautomatic rifles,” Justice Thomas wrote, referring, he said, to “modern sporting rifles.”

“The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting,” Justice Thomas wrote. “Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.”

In 2017, when the court turned down a Second Amendment challenge to a California law that placed strict limits on carrying guns in public, Justice Thomas again chastised the court for what he called “a distressing trend: the treatment of the Second Amendment as a disfavored right.”

“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force,” he wrote, “the guarantees of the Second Amendment might seem antiquated and superfluous. But the framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a state denies its citizens that right, particularly when their very lives may depend on it.”

House Jan. 6 Select Investigating Committee Chair Bennie Thompson (D-MS.) ((Photo via NBC News).

New York Times, Live Updates: Trump Tried to Misuse Justice Dept., Former Officials Say, Luke Broadwater and Staff Reports, June 24, 2022 (print ed.). Jan. 6 Panel Examines Trump’s Pressure on Agency.

A White House lawyer told Jeffrey Clark, a Justice Department lawyer who wanted to push forward with a plan by former President Donald J. Trump to subvert the 2020 election results based on unsubstantiated claims of voter fraud, that he would be committing a felony if he did so, the House committee investigating the Jan. 6 attack on the Capitol revealed on Thursday.

As the committee opened its fifth hearing revealing the findings of its investigation, lawmakers played video of Eric Herschmann, a lawyer in the White House Counsel’s Office recounting how, after hearing Mr. Clark’s proposal, he used a pair of expletives and said: “Congratulations, you just admitted your first step or act you’d take as attorney general would be committing a felony.”

The disclosure came as the panel began laying out evidence of how Mr. Trump tried to manipulate the Justice Department to help him cling to power after he lost the 2020 election. To help make the case, the committee is taking testimony from three former top Justice Department officials who, unlike Mr. Clark, pushed back strongly on Mr. Trump’s efforts to misuse the attorney general’s office to overturn his defeat, an extraordinary instance of a president interfering with the nation’s law enforcement apparatus for his own personal ends.

“He wanted the Justice Department to legitimize his lies,” said Representative Bennie Thompson, Democrat of Mississippi and the chairman of the committee, said of Mr. Trump, who at one point proposed placing Mr. Clark at the helm when other officials refused to bow to his demands.

The witnesses testifying are Jeffrey A. Rosen, the former acting attorney general; Richard P. Donoghue, the former acting deputy attorney general; and Steven A. Engel, the former assistant attorney general for the Office of Legal Counsel.

Among the other revelations by the panel on Thursday:

The committee played new testimony from former Attorney General Bill Barr in which he suggested in a videotaped deposition that he was aware that Mr. Trump wanted to use false claims of voter fraud as a pretense for refusing to leave office. Had he not moved quickly to investigate and debunk Mr. Trump’s voting fraud allegations, Mr. Barr said, “I’m not sure we would have had a transition at all.”

The committee displayed on a large screen Mr. Donoghue’s handwritten note of Mr. Trump’s instructions to the Justice Department: “Just say that the election was corrupt + leave the rest to me and the R. Congressmen.”

Representative Adam Kinzinger, Republican of Illinois and a member of the committee, is playing a central role in the questioning of witnesses and presentation of evidence. He has hinted that the hearing could reveal more information about members of Congress who sought pardons after Jan. 6.

The panel is planning at least two more hearings for July, according to its chairman, Representative Bennie Thompson, Democrat of Mississippi. Those sessions are expected to detail how a mob of violent extremists attacked Congress and how Mr. Trump did nothing to call off the violence for more than three hours.

Former Assistant U.S. Attorney General for the Office of Legal Counsel Steven Engel, former Acting U.S. Attorney General Jeffrey Rosen and former Acting U.S. Deputy Attorney General Richard Donoghue attend the fifth hearing held by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol on June 23, 2022 in the Cannon House Office Building in Washington, DC (Pool Photo by Jonathan Ernst via Getty Images).

New York Times, Jan. 6 Panel Examines Trump’s Pressure on the Justice Department, Luke Broadwater, June 24, 2022 (print ed.). At its fifth hearing, set for 3 p.m. on Thursday, the House committee turned its focus to how President Donald J. Trump tried to enlist the Justice Department in his efforts to cling to power.

The House committee investigating the Jan. 6 attack on the Capitol unveiled new evidence on Thursday about how President Donald J. Trump tried to manipulate the Justice Department to help him cling to power after he lost the 2020 election, aides said on Wednesday.

New York Times, Federal Officials Search Home of Trump Justice Dept. Official, Alan Feuer, Adam Goldman and Maggie Haberman, June 24, 2022 (print ed.). Jeffrey Clark Was Central to Efforts to Overturn Election.

Federal investigators descended on the home of Jeffrey Clark, a former Justice Department official shown above in a file photo, on Wednesday in connection with the department’s sprawling inquiry into efforts to overturn the 2020 election, according to people familiar with the matter.

It remained unclear exactly what the investigators may have been looking for, but Mr. Clark was central to President Donald J. Trump’s unsuccessful effort in late 2020 to strong-arm the nation’s top prosecutors into supporting his claims of election fraud.

The law enforcement action at Mr. Clark’s home in suburban Virginia came just one day before the House committee investigating the Jan. 6, 2021, attack on the Capitol was poised to hold a hearing examining Mr. Trump’s efforts to pressure the Justice Department after his election defeat.

The hearing was expected to explore Mr. Clark’s role in helping Mr. Trump bend the department to his will and ultimately help in a bid to persuade officials in several key swing states to change the outcome of their election results.

Politico, Multiple House Republicans sought pardons after Capitol riot, hearing reveals, Kyle Cheney and Nicholas Wu, June 24, 2022 (print ed.). Former top Department of Justice officials who testified thwarted the then-president's election subversion by threatening a mass resignation. Days after Jan. 6, 2021, Republican lawmakers who strategized with President Donald Trump asked top White House officials to help arrange for pardons, according to testimony released Thursday by the select panel investigating the Capitol attack.

Several top Trump White House aides at the time, including special assistant Cassidy Hutchinson and aide Johnny McEntee, described outreach from multiple members of Congress seeking clemency: Reps. Andy Biggs (R-Ariz.), Louie Gohmert (R-Texas), above right, Scott Perry (R-Pa.), Marjorie Taylor Greene (R-Ga.) and Matt Gaetz (R-Fla.).

Additionally, according to the former Trump aides’ testimony, Rep. Mo Brooks (R-Ala.), below right, sent an email on Jan. 11, 2021, asking for “all purpose” pardons for every lawmaker who objected to electoral votes from Arizona and Pennsylvania. Rep. Jim Jordan (R-Ohio) never asked for a pardon but did request an update on the status of requests by other members, Hutchinson said.

The flurry of pardon requests followed what the select committee showed was weeks of efforts by Trump’s top congressional Republican defenders to spread misinformation about the results of the 2020 election. Those GOP lawmakers also helped apply pressure on the Justice Department to legitimize those false fraud claims. None of the lawmakers ever received pardons.

New York Times, Supreme Court Blocks New York Law Limiting Guns in Public, Adam Liptak and Emily Cochrane, June 24, 2022 (print ed.). Ruling Will Make It Harder for States to Restrict Guns; The 6-3 decision was based on a broad interpretation of the Second Amendment and comes after a spate of mass shootings reinvigorated the debate over gun control.

The Supreme Court on Thursday struck down a New York law that placed strict limits on carrying guns outside the home, saying it was at odds with the Second Amendment.

The ruling was only the court’s second major statement on the scope of the individual constitutional right to keep and bear arms and its first on how the right applies to firearms in public places. The decision has far-reaching implications, particularly in cities that had sought to address gun crimes by putting restrictions on who can carry them.

The ruling comes after a spate of mass shootings reinvigorated the debate over gun control. The Senate is close to passing a bipartisan package of gun safety measures, a major step toward ending a yearslong stalemate in Congress.

The vote was 6 to 3, with the court’s three liberal members in dissent. (Excerpted story continued below.)

Washington Post, Ukraine Updates: Ukraine to withdraw troops from besieged Severodonetsk, Victoria Bisset, Adela Suliman, Andrew Jeong, Amy Cheng and Mary Ilyushina, June 24, 2022. Turkey denies receiving stolen grain; U.K. pledges $450 million to global food relief; ‘No one is abandoning our boys’ despite Severodonetsk withdrawal, governor says.

Ukraine will withdraw its troops defending Severodonetsk, the embattled eastern city that is the locus of Russia’s war effort, regional governor Serhiy Haidai said early Friday. Russia had been shelling the city “almost every day for four months,” Haidai said, adding that it made no sense to keep fighters in such a dangerous position. Russian troops were also advancing toward the neighboring city of Lysychansk, he added.

The setbacks in eastern Ukraine are in contrast to Kyiv’s recent wins off the battlefield. On Thursday, the European Union decided to grant Ukraine membership candidate status — a first step in a lengthy process, but a move President Volodymyr Zelensky nonetheless welcomed as “historic.” “Ukraine is not a bridge … not a buffer between Europe and Asia, not a sphere of influence,” he said Friday, rejecting Moscow’s justifications for its invasion of Ukraine. “Ukraine is a future equal partner for at least 27 E.U. countries.”

 June 21

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.

New York Times, Supreme Court Rejects Maine’s Ban on Aid to Religious Schools, Adam Liptak, June 21, 2022. The decision was the latest in a series of rulings forbidding the exclusion of religious institutions from government programs.

The Supreme Court ruled on Tuesday that Maine may not exclude religious schools from a state tuition program. The decision, from a court that has grown exceptionally receptive to claims from religious people and groups in a variety of settings, was the latest in a series of rulings requiring the government to aid religious institutions on the same terms as other private organizations.

The vote was 6 to 3, with the court’s three liberal justices in dissent.

The case, Carson v. Makin, No. 20-1088, arose from an unusual program in Maine, which requires rural communities without public secondary schools to arrange for their young residents’ educations in one of two ways. They can sign contracts with nearby public schools, or they can pay tuition at a private school chosen by parents so long as it is, in the words of a state law, “a nonsectarian school in accordance with the First Amendment of the United States Constitution.”

Two families in Maine that send or want to send their children to religious schools challenged the law, saying it violated their right to freely exercise their faith.

New York Times, The Major Supreme Court Decisions in 2022, Adam Liptak and Jason Kao, June 21, 2022. The leak in May of a draft opinion that would overrule Roe v. Wade seemed to expose new fault lines at the Supreme Court in the first full term in which it has been dominated by a 6-to-3 conservative supermajority, including three justices appointed by President Donald J. Trump. The court’s public approval ratings have been dropping, and its new configuration has raised questions about whether it is out of step with public opinion.

According to a recent survey from researchers at Harvard, Stanford and the University of Texas, the public is closely divided on how the court should rule in several major cases. In many of them, though, respondents held starkly different views based on their partisan affiliations. Here is a look at the major cases this term.

Washington Post, Speaker at meeting of Ginni Thomas group called Biden’s win illegitimate long after Jan. 6, video shows, Emma Brown, Isaac Stanley-Becker and Rosalind S. Helderman, June 21, 2022. Two months after rioters stormed the U.S. Capitol in an attempt to help President Donald Trump stay in office, Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, right, attended a gathering of right-wing activists where a speaker declared to roaring applause that Trump was still the “legitimate president,” a video recording of the event shows.

“There is a robbery that is going on in this country right now,” pastor and conservative radio personality C.L. Bryant told the crowd, according to video posted to Facebook by an attendee. “In fact, I say it to you and I’ll say it loud and clear, and I’m not ashamed to say it. I won’t bite my tongue. I do believe that Donald John Trump is the only legitimate president.”

The event on March 6, 2021, was a meeting of Frontliners for Liberty. The group vaulted from obscurity to national attention last week with the disclosure that Thomas had invited pro-Trump lawyer John Eastman to speak to its members in December 2020.

The revelation, originating from emails that a judge ordered Eastman to turn over to the House committee investigating the Jan. 6 insurrection, showed that Thomas was in contact with Eastman, a key legal architect of the attempt to subvert the election. The judge, David O. Carter of the Central District of California, wrote in a June 7 opinion that the emails, including two in which the group’s “high-profile leader” invited Eastman to speak — were relevant to the committee’s work.

While text messages and emails unearthed in recent weeks have shown that Thomas was involved in those efforts before Jan. 6, her attendance at the Orlando gathering indicates that her alliance with election deniers continued even after Joe Biden was inaugurated. Frontliners has hosted hard-right lawmakers, insisted on strict secrecy and proclaimed that the nation’s top enemy is the “radical fascist left,” according to social media posts, court filings and interviews with several people involved in the group.

One photograph from the Orlando event shows Bryant posing with Thomas. Others show Thomas wearing a name tag decorated with a yellow ribbon she and others wore saying “Trouble Maker.”

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Washington Post, Opinion: Another reason for the Jan. 6 hearings: The GOP is still attacking democracy, Jennifer Rubin, right, June 21, 2022. Retired federal judge J. Michael Luttig warned at the House Jan. 6 committee’s hearing last Thursday that Donald Trump and his supporters remain a “clear and present danger” to our democracy. Rep. Liz Cheney (R-Wyo.), the vice chair of the committee, has similarly warned about the “ongoing threat” the defeated former president poses.

This is not hyperbole. In fact, three vivid examples in recent days show that the radicalized GOP no longer subscribes to the basic principles of democracy.

The first came from Trump at the Faith and Freedom Coalition’s gathering last week. Apparently oblivious to the potential crimes to which he was confessing, Trump declared, “Mike Pence had a chance to be great. He had a chance to be frankly historic. But just like [former attorney general ] Bill Barr and the rest of these weak people, Mike — and I say it sadly because I like him — but Mike did not have the courage to act.” In other words, Trump has no qualms about attempting to pressure his vice president or the Justice Department to undo an election.

Does anyone believe he and his supporters wouldn’t pull out all the stops once more to persuade the House of Representatives not to certify the 2024 election if the Democratic nominee won? Trump has shown absolutely no hesitation that he is willing to deploy similar tactics in future elections. In fact, he still wrongly insists there is historical precedent for his coup attempt (even though John Eastman, his chief insurrection plotter, reportedly confessed in Trump’s presence that none exists).

Trump has also vowed political retribution against those who seek to hold him accountable, calling for an investigation into the Jan. 6 committee. “The first people to receive subpoenas should be crazy Nancy Pelosi and warmonger Liz Cheney, who by the way is, they say, down by 35 points in the great state on Wyoming.”

Another kind of the ongoing threat to democracy comes from New Mexico, where the state Supreme Court was compelled to order county commissioners in rural Otero County to certify their June 7 primary election. Commissioner Couy Griffin, a Republican who was sentenced last week for trespassing at the Capitol on Jan. 6, refused to certify the results not because of evidence of fraud but because of “gut feeling and intuition.” This is the Trump standard: It doesn’t matter if there is zero evidence of fraud. Sheer delusion is sufficient to violate election laws.

June 15

Citizens for Responsibility and Ethics in Wasington (CREW), Investigation: Group behind Trump SCOTUS picks brought in nearly $50 million in secret money, Robert Maguire, June 15, 2022.As the Supreme Court stands on the brink of loosening gun restrictions and rolling back decades of abortion protections, tax documents obtained by CREW show that the dark money group that poured millions of dollars into helping former President Trump swing the Court sharply to the right raised a record $48.1 million between July 2020 and June 2021, all from deep-pocketed donors who will remain secret.

Filing as the Concord Fund, but better known by its alias, the Judicial Crisis Network (JCN), the group has deep ties to Federalist Society co-chairman Leonard Leo, who played a key role during the Trump years helping select Trump’s judicial nominees. Throughout that time, JCN acted as the firepower in the effort to reshape the judiciary, spending millions of dollars from anonymous donors on ads to stymie President Obama’s nomination of Merrick Garland and to boost Trump nominees Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

The period covered by the filing includes the confirmation battle over now-Supreme Court Justice Barrett. During that time, JCN spent millions of dollars around the country promoting Trump’s chosen nominee to replace Justice Ruth Bader Ginsburg. As part of the advocacy effort, JCN also set up a website with glowing information about Barrett’s background and record.

Once the confirmation and election passed, the Concord Fund spent another $1 million, under the JCN moniker, on ads sounding alarms about the thus far nonexistent threat of court packing, even using it as an opportunity to attack “left-wing dark money groups,” without apparent irony. Later, under yet another name — Free to Learn Action — the Concord Fund created an ad campaign that targeted the teaching of racial justice topics in schools.

Throughout the time the Concord Fund was spending millions on confirmation battles and culture war fights, it was also sending tens of millions of dollars to Republican-allied groups, according to the tax document. The single largest expenditure the Concord Fund reported in the filing is a $9 million grant to One Nation, the Mitch McConnell-aligned dark money group that poured more than $85 million into the 2020 elections. This windfall from One Nation made it the largest donor to Senate Republicans’ main super PAC, the Senate Leadership Fund, which is run by the same people as One Nation.

Another grant, totaling more than $4.8 million, went to the political group Republican Attorneys General Association, whose sister 501(c)(4) organization was involved in promoting the January 6th rally that preceded the attack on the Capitol. Other grantees include evangelical and anti-abortion groups like Susan B. Anthony List ($2.2 million) and the Faith and Freedom Coalition ($1.1 million), and conservative groups like Mike Pence’s new organization Advancing American Freedom ($1 million), the Heritage Foundation’s sister organization, Heritage Action for America ($1.9 million), and Club for Growth ($1.1 million). Another group, N2 America — co-founded by two veteran Republican strategists — received $1 million. N2 America, according to an article shared on their website, was formed “to work on both policy proposals and communications strategy for rehabilitating the GOP brand in the suburbs.”

While Leonard Leo’s name is not on the new tax document, his fingerprints are all over it. The largest contractor payment listed on the document, totaling nearly $7.7 million, was directed at a conservative consulting firm called CRC Advisors, which Leo helped form in early 2020 — around the same time that JCN was rechristened as the Concord Fund. According to Axios, the aim of the rebranded group, along with another sister organization, the 85 Fund, was to use them as vehicles “to funnel tens of millions of dollars into conservative fights around the country.”

CRC Advisors’ role was apparent even in trying to obtain the tax returns in the first place. After reaching out to the Concord Fund multiple times — both by email and by calling the number listed on their tax documents, which appears to have been disconnected — the only response CREW received weeks later was from a CRC representative saying that CREW’s request had been “referred to counsel for processing.” Unfortunately, these kinds of generally meaningless responses are common when requesting public documents from dark money groups, and usually signify that a group is waiting as long as it’s allowed, under IRS rules, to provide paper copies of a document that it could just send in an email.

Another payment listed in the return further indicates Leo’s involvement. The Concord Fund paid half a million dollars to a company called the BH Group. Leonard Leo is a part owner of the firm, which has almost no public presence, aside from large payments from dark money groups tied to Leo and a $1 million contribution to former President Trump’s inauguration — the ultimate source of which remains unknown more than five years later.

For nearly two decades now, Leonard Leo and the Concord Fund, by any name, have been one of the driving forces behind the push to reshape the court and overturn Roe v. Wade, and a recent leaked draft opinion suggests that this dream is about to be realized. Judicial Crisis Network’s president Carrie Severino has already celebrated the opinion, but their work will not end there. The Concord Fund and the small network of well-funded groups tied to Severino and Leo are already engaged in efforts to restrict voting and fight “left-wing dark money” — all without disclosing any of the donors behind its $48.1 million haul.

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

Washington Post, Ginni Thomas corresponded with John Eastman, sources in Jan. 6 House investigation say, Jacqueline Alemany, Josh Dawsey and Emma Brown, June 11, 2022. The emails show that Thomas’s efforts to overturn the election were more extensive than previously known, two of the people involved in the committee’s investigation said.

The House committee investigating the Jan. 6, 2021, attack on the Capitol has obtained email correspondence between Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, and lawyer John Eastman, who played a key role in efforts to pressure Vice President Mike Pence to block the certification of Joe Biden’s victory, according to three people involved in the committee’s investigation.

The emails show that Thomas’s efforts to overturn the election were more extensive than previously known, two of the people said. The three declined to provide details and spoke on the condition of anonymity to discuss sensitive matters.

The committee’s members and staffers are now discussing whether to spend time during their public hearings exploring Ginni Thomas’s role in the attempt to overturn the outcome of the 2020 election, the three people said. The Washington Post previously reported that the committee had not sought an interview with Thomas and was leaning against pursuing her cooperation with its investigation.

The two people said the emails were among documents obtained by the committee and reviewed recently. Last week, a federal judge ordered Eastman to turn more than 100 documents over to the committee. Eastman had tried to block the release of those and other documents by arguing that they were privileged communications and therefore should be protected.

Thomas also sent messages to President Donald Trump’s White House chief of staff, Mark Meadows, and to Arizona lawmakers, pressing them to help overturn the election, The Post has previously reported.

June 11

Washington Post, Ginni Thomas pressed 29 Ariz. lawmakers to help overturn Trump’s defeat, emails show, Emma Brown, June 11, 2022 (print ed.). Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, pressed 29 Republican state lawmakers in Arizona — 27 more than previously known — to set aside Joe Biden’s popular vote victory and “choose” presidential electors, according to emails obtained by The Washington Post.

The Post reported last month that Thomas, right, sent emails to two Arizona House members, in November and December 2020, urging them to help overturn Biden’s win by selecting presidential electors — a responsibility that belongs to Arizona voters under state law. Thomas sent the messages using FreeRoots, an online platform intended to make it easy to send pre-written emails to multiple elected officials.

New documents show that Thomas indeed used the platform to reach many lawmakers simultaneously. On Nov. 9, she sent identical emails to 20 members of the Arizona House and seven Arizona state senators. That represents more than half of the Republican members of the state legislature at the time.

The message, just days after media organizations called the race for Biden in Arizona and nationwide, urged lawmakers to “stand strong in the face of political and media pressure” and claimed that the responsibility to choose electors was “yours and yours alone.” They had “power to fight back against fraud” and “ensure that a clean slate of Electors is chosen,” the email said.

Among the lawmakers who received the email was then-Rep. Anthony Kern, a Stop the Steal supporter who lost his reelection bid in November 2020 and then joined U.S. Rep. Louie Gohmert (R-Tex.) and others as a plaintiff in a lawsuit against Vice President Mike Pence, a last-ditch effort to overturn Biden’s victory. Kern was photographed outside the Capitol during the riot on Jan. 6 but has said he did not enter the building, according to local media reports.

Kern did not immediately respond to a request for comment Friday. He is seeking his party’s nomination for a seat in the Arizona state Senate and has been endorsed by former president Donald Trump.

June 10

Washington Post, Ginni Thomas pressed 29 Ariz. lawmakers to help overturn Trump’s defeat, emails show, Emma Brown, June 10, 2022. Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, pressed 29 Republican state lawmakers in Arizona — 27 more than previously known — to set aside Joe Biden’s popular vote victory and “choose” presidential electors, according to emails obtained by The Washington Post.

The Post reported last month that Thomas, right, sent emails to two Arizona House members, in November and December 2020, urging them to help overturn Biden’s win by selecting presidential electors — a responsibility that belongs to Arizona voters under state law. Thomas sent the messages using FreeRoots, an online platform intended to make it easy to send pre-written emails to multiple elected officials.

New documents show that Thomas indeed used the platform to reach many lawmakers simultaneously. On Nov. 9, she sent identical emails to 20 members of the Arizona House and seven Arizona state senators. That represents more than half of the Republican members of the state legislature at the time.

The message, just days after media organizations called the race for Biden in Arizona and nationwide, urged lawmakers to “stand strong in the face of political and media pressure” and claimed that the responsibility to choose electors was “yours and yours alone.” They had “power to fight back against fraud” and “ensure that a clean slate of Electors is chosen,” the email said.

Among the lawmakers who received the email was then-Rep. Anthony Kern, a Stop the Steal supporter who lost his reelection bid in November 2020 and then joined U.S. Rep. Louie Gohmert (R-Tex.) and others as a plaintiff in a lawsuit against Vice President Mike Pence, a last-ditch effort to overturn Biden’s victory. Kern was photographed outside the Capitol during the riot on Jan. 6 but has said he did not enter the building, according to local media reports.

Kern did not immediately respond to a request for comment Friday. He is seeking his party’s nomination for a seat in the Arizona state Senate and has been endorsed by former president Donald Trump.

Washington Post, Amy Coney Barrett received $425,000 book payment, records show, Ann E. Marimow and Emma Brown, June 10, 2022 (print ed.). New financial-disclosure reports released by the Supreme Court show the justices were paid thousands to teach at law schools and give speeches.

Supreme Court Justice Amy Coney Barrett, left, received $425,000 last year as part of a book deal, according to financial-disclosure reports released Thursday showing the justices were paid thousands of dollars to teach at law schools and for travel expenses for lectures as far away as Iceland.

Barrett’s book payment — more than double the salary the University of Notre Dame paid her as a law professor before she became a judge in 2017 — came from the Javelin Group, a literary agency that represents writers in dealings with publishers. Barrett’s disclosure form does not name her publisher, but the Associated Press reported last year that she had signed a deal with a conservative imprint of Penguin Random House.

Politico, citing unidentified industry sources, reported last year that she would be paid a total of $2 million for the book. Such advance payments for a book typically are paid in installments across multiple years.

New York Times, Hundreds Have Left N.Y. Public Defender Offices Over Low Pay, Jonah E. Bromwich, June 9, 2022. Lawyers at public defender services have said they are overworked and facing a hard choice between making a living and making sure justice is served.

 Washington Post, 911 tapes show how man accused in Kavanaugh plot abandoned plan, Dan Morse, June 10, 2022 (print ed.). Authorities say Nicholas Roske was set to sneak into justice’s home with pad-soled boots for quiet walking. As detailed as Roske’s plans may have been, court records and newly released 911 calls also document how quickly he abandoned them. Once arriving to the home early Wednesday, Roske spotted two deputy U.S. marshals, part of Kavanaugh’s security detail, standing outside a car, according to an FBI affidavit filed in federal court. He walked away, turned a corner and called 911 to turn himself in.

“I’m standing now, but I can sit, whatever. I want to be fully compliant,” Roske said, according to a copy of the 911 call released Thursday by the Montgomery County Police Department. “So whatever they want me to do, I’ll do”

County officers soon pulled up and arrested Roske without incident.

Washington Post, Opinion: Kavanaugh threat exposed weaknesses in judicial security — and our discourse, Ruth Marcus, right, June 10, 2022 (print ed.). The news that an armed California man went to Justice Brett M. Kavanaugh’s Maryland home intending to assassinate him is horrifying and intolerable. It should serve as a wake-up call, first and foremost, to ensure that the justices, their families and, if needed, their staffs receive all necessary security.

The harder part is grappling seriously with the implications of this episode, which could have ended in unfathomable tragedy. But it also means not leaping to assign blame or hijack the episode to reinforce preexisting conclusions.

June 9

History Re-examined: The 1972 Watergate Break-in

Kingston School of Art and The Citadel, The Watergate Break-in: 50 Years Later: Two day conference via Zoom, June 9-10, 2022, Conference organizers: Dr. Shane O’Sullivan (Kingston School of Art) and Dr. Melissa Graves (Dept. of Intelligence and Security Studies, The Citadel). Shown above: Collage of Five Watergate Burglars, and a 1970s photo of the Watergate office and residential complex, at center, in Washington, D.C.

This weekend marks the 50th anniversary of the first Watergate break-in, when James McCord planted bugs in two phones at DNC headquarters and Rolando Martinez snapped 38 photos of documents concerning DNC chairman Larry O’Brien. McCord didn’t know where O’Brien’s office was and tapped the wrong phone with a bug that didn’t work, so the burglars went in again on June 17, 1972, and got caught.This free two-day online conference (June 9-10, 2022) will reflect on the 50th anniversary of the Watergate break-in and the investigation that followed.

Speakers include lead Watergate prosecutor Earl Silbert, FBI case agent Angelo Lano and three other FBI investigators, whistleblower Judy Hoback Miller, CNN presidential historian Timothy Naftali, and a distinguished line-up of historians, journalists, academics and published authors on the case.

There has been a resurgence of interest in Watergate in recent years, as parallels have been drawn between Watergate events and the Mueller investigation and presidential impeachment hearings, and each new scandal is dubbed “worse than Watergate.”

While much has been written about the White House cover-up and the Nixon White House tapes, the stories of the burglars and the FBI investigation are less well-known. Fifty years after the break-in, the surviving investigators and prosecutors still don’t understand why the burglars entered DNC headquarters in the early morning hours of June 17, 1972; or how the experienced intelligence operatives in the break-in team made such elementary mistakes, resulting in their arrests and President Nixon’s resignation two years later.

Conference organisers Shane O'Sullivan (Kingston School of Art) and Melissa Graves (Dept of Intelligence and Security Studies, The Citadel) aim to widen the scope of Watergate scholarship and explore some of the remaining mysteries of the case.

Day 1

The Watergate Break-in
Watergate in Presidential History
Investigating the Watergate Break-in
The Hidden Motives of James McCord

Day 2

Bookkeeper/Whistleblower
Every Tree in the Forest Will Fall: The CIA and Watergate
Watergate Myths and Counter-Narratives
The Legacy of Watergate

June 8

Washington Post, Man with weapon detained near Brett Kavanaugh’s home. He allegedly made threats against the justice, Devlin Barrett, Dan Morse and Ellie Silverman, June 8, 2022. The man allegedly told police he wanted to kill the Supreme Court justice, according to people familiar with the investigation.

A California man carrying at least one weapon near Brett M. Kavanaugh’s Maryland home has been taken into custody by police after telling officers he wanted to kill the Supreme Court justice, right, according to people familiar with the investigation.

The man, described as being in his mid-20s, was found to be carrying at least one weapon and burglary tools, these people said, speaking on the condition of anonymity to discuss an ongoing investigation.

Police were apparently notified that the person might pose a threat to the justice, but it was not immediately clear who provided the initial tip, these people said. The man apparently did not make it onto Kavanaugh’s property in Montgomery County but was stopped on a nearby street, these people said.

Two people familiar with the investigation said the initial evidence indicates that the man was angry about the leaked draft of an opinion by the Supreme Court signaling that the court is preparing to overturn Roe. v. Wade, the 49-year-old decision that guaranteed the constitutional right to have an abortion. He was also angry over a recent spate of mass shootings, these people said.

June 5

 U.S. Sen. Susan Collins (R-Maine), shown in a 2020 photo by Gage Skidmore.

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, Opinion Essay: Susan Collins confronts a moment of truth, Molly Roberts, June 5, 2022. Sen. Susan Collins (R-Maine) has never been known for being angry, or animated, or really any adjective more charged than “concerned.” Once or twice, she has gone so far as to declare herself “disappointed.”

You might imagine, nonetheless, that the leaked draft of a Supreme Court opinion overturning Roe v. Wade would have been enough to expand her measured vocabulary. You’d be wrong.

“If this … is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” said the statement the senator released after the story broke. “Obviously, we won’t know each Justice’s decision and reasoning until the Supreme Court officially announces its opinion in this case.”

This is about as fiery as it gets for a fifth-term moderate dedicated, above all else, to dealmaking and decorum. By comparison, Sen. Lisa Murkowski (R-Alaska), hardly hot-tempered, said the opinion “rocks my confidence in the court right now.”

All the same, you have to wonder whether Collins is less serene under the surface.

She made a spectacular bet on Brett M. Kavanaugh during his nomination hearings in 2018: saying that she believed him when he said that Roe was settled law — much like the bet she made on Neil M. Gorsuch in 2017 when he said precedent was “the anchor of the law.”

These justices, of course, might yet come through for Collins by the time the court finally rules — even if only to preserve some portion of the precedent that has enshrined the right to abortion for almost half a century. But the February draft that has much of the nation on fire boasted five conservative votes to bulldoze the rulings that have defined the status quo for decades.

This means that after a career in the U.S. Senate of 25 years, full of big bills passed, coalitions forged and bridges physical and metaphorical built across rivers and party lines, Collins confronts a moment of truth: Was she duped into securing a sturdy majority on the court for an increasingly radical Republican Party? Or did she manage, as she has always tried to do, to find a compromise that serves her ideals, her self-interest and her institution alike?

If you’re wondering whether Collins can survive the end of a constitutional right to abortion, you’d be wise to ask the question: Survive where?

Not a single public poll in 2020 predicted she’d weather her reelection — and then her constituents catapulted her back to Capitol Hill with a stunning nine-point victory.

June 2

Washington Post, Analysis: Barr’s extraordinary defense of the John Durham probe, Aaron Blake, June 2, 2022. From the start, then-Attorney General William P. Barr’s decision to appoint special counsel John Durham to investigate the origins of the Russia investigation was controversial.

And more than three years later, the inquiry has largely come up empty. It has secured one guilty plea that led to a sentence of probation, and it has now come up short in the much-watched trial of Michael Sussmann, who was acquitted Tuesday.

It’s a marked contrast to the probe Durham was tasked with investigating, in which Robert S. Mueller III secured more than half a dozen guilty pleas or verdicts. Those included several high-profile aides and associates of then-President Donald Trump. And that’s to say nothing of the extensive evidence Mueller laid out suggesting Trump might have committed obstruction of justice. A later bipartisan Senate report also suggested there was more to the collusion portion of the investigation than even Mueller was able to unearth.

To the extent people on the right have believed the Russia investigation was a “hoax” and the real crime was the Mueller probe itself, the evidence thus far paints quite a different picture.

Which leaves everyone involved to account for that. And on Wednesday, Barr himself attempted to do so — in a rather novel way for a lawman. Indeed, his defense reinforced Barr’s dual role under the Trump presidency as the nation’s chief law enforcement officer and a political actor often preoccupied with taking extraordinary steps to right the supposed wrongs committed against Trump.

Fox News had hyped the significance of the Sussmann verdict beforehand and then just as quickly downplayed the acquittal afterward, suggesting the jury was unfriendly. But when Barr, right, appeared for an interview, one of its hosts pressed him on the probe’s lack of deliverables.

“Do you feel in any way responsible for how this Durham situation’s unfolding?” Jesse Watters asked. “And are you disappointed in John Durham?”

Barr assured he wasn’t disappointed. He noted that it’s difficult to obtain guilty verdicts and suggested repeatedly that the jury was slanted.

But he also pointed to a way in which Durham’s probe was supposedly successful: telling a story.

To wit (emphasis added):

“I think he accomplished something far more important, which is he brought out the truth in two important areas. First, I think he crystallized the central role played by the Hillary campaign in launching as a dirty trick — the whole Russiagate collusion narrative and fanning the flames of it. And second, I think he exposed really dreadful behavior by the supervisors in the FBI, the senior ranks of the FBI, who knowingly use this information to start an investigation of Trump …”

“The other aspect of this is to get the story out.”

“Complicated cases like this take a long time to build; they occur step-by-step and in secret. People don’t like that. If they want people punished, that’s what it takes. If they want the facts of what happened, you can get it that much more quickly.”

To summarize: Even without convictions, this is good, because it has exposed something. And that something apparently need not be proven crimes or anything amounting to the supposed conspiracy that has been alleged.

That is decidedly not how this is supposed to work. There is a reason the Justice Department doesn’t generally disclose its investigations when it can avoid doing so: because it wants to avoid impugning those who didn’t commit crimes. The role of the Justice Department is to enforce the law — not to expose “dirty tricks” that haven’t been shown to be crimes. Yet Barr is basically suggesting the value of this investigation lay largely in getting information out there, regardless of whether that information is ultimately tied to a proven crime.

(Here, we are leaving aside the actual substance of the information Durham has put out, which has been misleading in its most high-profile instances.)

This is a remarkable view of the special counsel investigation Barr launched, to be sure, but it’s also in keeping with Barr’s general posture. While decrying the politicization of law enforcement, he took an extraordinary interest in the affairs of Trump and Trump allies who found themselves afoul of the law. Some prosecutors resigned in response. In what was arguably an audition for his job in the first place, Barr wrote a remarkable 2018 memo, while he was still a private citizen, assailing Mueller’s investigation. At one point, he even suggested that Mueller’s probe was less substantiated than a debunked conspiracy theory involving the Clintons and Uranium One.

Against that backdrop, saying that your decision to launch a special counsel investigation is validated by the information it has put out, rather than the laws enforced, isn’t terribly surprising. But it’s still a remarkable admission.

Washington Post, Opinion: In death row case, the Supreme Court says guilt is now beside the point, Radley Balko, right, June 3, 2022 (print ed.). In the 1993 case Herrera v. Collins, Supreme Court Justice Antonin Scalia made a staggering claim. The Constitution, Scalia wrote, does not prevent the government from executing a person who new evidence indicates might be “actually innocent” — that is, someone with the potential to legally demonstrate they did not commit the crime for which they were convicted. Scalia didn’t just make his point casually. It was the reason he wrote a concurring opinion.

Scalia’s claim was so outlandish that Justice Sandra Day O’Connor felt obliged to specifically rebut him, even though they agreed on the ultimate outcome in the case. Only one other justice joined Scalia’s opinion: Clarence Thomas.

Last week, Scalia’s once-fringe position became law. In Shinn v. Ramirez, the court voted 6 to 3 to overrule two lower courts and disregard the innocence claims of Barry Lee Jones, a prisoner on Arizona’s death row. Importantly, the majority did not rule that it found Jones’s innocence claims unpersuasive. Instead, it ruled that the federal courts are barred from even considering them. Thomas wrote the opinion.

June 1

Washington Post, Supreme Court puts on hold Texas law that limits social media companies’ moderation efforts, Robert Barnes and Cat Zakrzewski, June 1, 2022 (print ed.). The law would bar social media companies from removing posts based on a user’s political ideology.

The Supreme Court on Tuesday stopped a Texas law that would regulate how social media companies police content on their sites, while a legal battle continues over whether such measures violate the First Amendment.

The vote was 5 to 4. The five in the majority — Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Sonia Sotomayor, Brett M. Kavanaugh and Amy Coney Barrett — did not provide reasoning for their action, which is common in emergency requests.

Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, said he had not made up his mind about the constitutionality of the law, but would have allowed it to go into effect while review continues. Justice Elena Kagan also would have let stand for now a lower court’s decision allowing the law to take effect, but she did not join Alito’s dissent or provide her own reasons.

May

May 31

CNN, Exclusive: Supreme Court leak investigation heats up as clerks are asked for phone records in unprecedented move, Joan Biskupic, May 31, 2022.  Supreme Court officials are escalating their search for the source of the leaked draft opinion that would overturn Roe v. Wade, taking steps to require law clerks to provide cell phone records and sign affidavits, three sources with knowledge of the efforts have told CNN.

Some clerks are apparently so alarmed over the moves, particularly the sudden requests for private cell data, that they have begun exploring whether to hire outside counsel.

The court's moves are unprecedented and the most striking development to date in the investigation into who might have provided Politico with the draft opinion it published on May 2. The probe has intensified the already high tensions at the Supreme Court, where the conservative majority is poised to roll back a half-century of abortion rights and privacy protections.

Chief Justice John Roberts, right, met with law clerks as a group after the breach, CNN has learned, but it is not known whether any systematic individual interviews have occurred.

Lawyers outside the court who have become aware of the new inquiries related to cell phone details warn of potential intrusiveness on clerks' personal activities, irrespective of any disclosure to the news media, and say they may feel the need to obtain independent counsel.

"That's what similarly situated individuals would do in virtually any other government investigation," said one appellate lawyer with experience in investigations and knowledge of the new demands on law clerks. "It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection."

Sources familiar with efforts underway say the exact language of the affidavits or the intended scope of that cell phone search -- content or time period covered -- is not yet clear.

The Supreme Court did not respond to a CNN request on Monday for comment related to the phone searches and affidavits.

The young lawyers selected to be law clerks each year are regarded as the elite of the elite. (Each justice typically hires four.) They are overwhelmingly graduates of Ivy League law schools and have had prior clerkships with prominent US appellate court judges.

Their one-year service becomes a golden ticket to prestigious law firms, top government jobs or professorships. Six of the current nine Supreme Court justices are former clerks.

The escalating scrutiny of law clerks reflects Roberts' concerns about the breach in confidentiality and possibly further leaks. It also suggests the court has been so far unsuccessful in determining Politico's source.

Roberts ordered the investigation on May 3, designating the court's marshal, Gail Curley, to lead the probe.

Curley, left, a lawyer and former Army colonel, oversees the police officers at the building. She is best known to the public as the person who chants, "Oyez! Oyez! Oyez!" at the beginning of the justices' oral argument sessions. The marshal's office would not normally examine the details of cell phone data or engage in a broad-scale investigation of personnel.

The investigation comes at the busiest time in the court's annual term, when relations among the justices are already taut. Assisted by their law clerks, the justices are pressing toward late June deadlines, trying to resolve differences in the toughest cases, all with new pressures and public scrutiny.

Because of protests and security concerns related to the Mississippi abortion case, the court building is surrounded by an 8-foot non-scalable fence and concrete barriers.

The justices are also resolving a New York dispute that could, based on their remarks during oral arguments in November, expand Second Amendment protection for gun owners. Additionally, the court could further lower the wall of separation between church and state by permitting certain prayer at public schools and requiring public vouchers for religious institutions.

The draft opinion in the case of Dobbs v. Jackson Women's Health Organization was written by Justice Samuel Alito and appeared to have a five-justice majority to completely reverse the 1973 Roe v. Wade decision. That landmark ruling made abortion legal nationwide and buttressed other privacy interests not expressly stated in the Constitution. Some law professors have warned that if Roe is reversed, the Supreme Court's 2015 decision declaring a constitutional right to same-sex marriage could be in jeopardy.

Publication of the Alito draft opinion has already prompted national protests and dueling state legislative efforts -- to further eliminate all options for a woman seeking to terminate a pregnancy or, alternatively, to try to safeguard women's access to abortion where possible.

But it is difficult for anyone outside the building to know whether the Alito draft still commands a majority on a court tightly divided on abortion rights and split over how quickly to reverse precedent.

Cell phones, of course, hold an enormous amount of information, related to personal interactions, involving all manner of content, texts and images, as well as apps used. It is uncertain whether details linked only to calls would be sought or whether a broader retrieval would occur.

There are protocols for handling drafts of court opinions, which circulate electronically on a closed system, separate from the computer system the justices and court employees use to communicate with people outside the court. Yet it is possible for printed copies to leave the building under even innocent circumstances, as work is taken home.

Court officials are secretive even in normal times. No progress reports related to the leak investigation have been made public, and it is not clear whether any report from the probe will ever be released.

Some clerks are apparently so alarmed over the moves, particularly the sudden requests for private cell data, that they have begun exploring whether to hire outside counsel.

The court's moves are unprecedented and the most striking development to date in the investigation into who might have provided Politico with the draft opinion it published on May 2. The probe has intensified the already high tensions at the Supreme Court, where the conservative majority is poised to roll back a half-century of abortion rights and privacy protections.

New York Times, Opinion: We Clerked for Justices Scalia and Stevens. America Is Getting Heller Wrong, Kate Shaw and John Bash, May 31, 2022. In the summer of 2008, the Supreme Court decided District of Columbia v. Heller, in which the court held for the first time that the Second Amendment protected an individual right to gun ownership. We were law clerks to Justice Antonin Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the lead dissent.

Justices Scalia and Stevens clashed over the meaning of the Second Amendment. Justice Scalia’s majority opinion held that the Second Amendment protected an individual right to keep a usable handgun at home, which meant the District of Columbia law prohibiting such possession was unconstitutional. Justice Stevens argued that the protections of the Second Amendment extended only to firearm ownership in conjunction with service in a “well-regulated militia,” in the words of the Second Amendment.

We each assisted a boss we revered in drafting his opinion, and we’re able to acknowledge that work without breaching any confidences.

We continue to hold very different views about both gun regulation and how the Constitution should be interpreted.

But despite our fundamental disagreements, we are both concerned that Heller has been misused in important policy debates about our nation’s gun laws. In the 14 years since the Heller decision, Congress has not enacted significant new laws regulating firearms, despite progressives’ calls for such measures in the wake of mass shootings. Many cite Heller as the reason. But they are wrong.

Heller does not totally disable government from passing laws that seek to prevent the kind of atrocities we saw in Uvalde, Texas. And we believe that politicians on both sides of the aisle have (intentionally or not) misconstrued Heller. Some progressives, for example, have blamed the Second Amendment, Heller or the Supreme Court for atrocities like Uvalde. And some conservatives have justified contested policy positions merely by pointing to Heller, as if the opinion resolved the issues.

Neither is fair. Rather, we think it’s clear that every member of the court on which we clerked joined an opinion — either majority or dissent — that agreed that the Constitution leaves elected officials an array of policy options when it comes to gun regulation.

May 26

Washington Post, Supreme Court allows Biden climate regulations while fight continues, Robert Barnes and Anna Phillips, May 26, 2022. The Supreme Court on Thursday allowed the Biden administration, for now, to use a higher estimate for the societal cost of rising greenhouse gases when federal agencies draft regulations.

In a one-sentence order without comment or noted dissent, the court turned aside a request from Louisiana and other Republican-led states to prevent federal agencies from using the administration’s estimate of the harm climate change causes, known as the “social cost of carbon.”

The federal government uses the estimate in all sorts of rulemaking, including new drilling permits and assessing the costs for crop losses and flood risks.

The estimates are something of a political football. After the Trump administration lowered the cost estimate from that set in the Obama administration, President Biden’s administration increased it. Republican-led states went to court.

A federal district judge in Louisiana ruled for the states and said the estimates could not be used. But a panel of the U.S. Court of Appeals for the 5th Circuit disagreed and put the judge’s order on hold. The Supreme Court’s action Thursday keeps that ruling in place.

Appeals court rules for Biden administration in climate change suit

Louisiana’s lawyers called the estimates “a power grab designed to manipulate America’s entire federal regulatory apparatus through speculative costs and benefits so that the Administration can impose its preferred policy outcomes on every sector of the American economy.”

But the Biden administration responded that they had been used for years. It told the Supreme Court that the district judge’s ruling was wrong but also premature. The states should not be allowed to sue before an agency even implements a rule using the new cost estimates, Solicitor General Elizabeth B. Prelogar wrote, because they have not been harmed.

May 25

New York Times, Opinion: Abortion Questions for Justice Alito and His Supreme Court Allies, Linda Greenhouse (shown at right on the cover of her memoir),, May 25, 2022. 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 to 2021.

Now that the Oklahoma State Legislature has voted to ban abortion from the moment of conception, I have a few questions for Justice Samuel Alito and any others who would join him in overturning Roe v. Wade:

What is your reaction to the news from Oklahoma? The State Legislature gave final approval last Thursday to a bill that would prohibit nearly all abortions, starting at fertilization. It now awaits the signature of the governor, who has pledged to make Oklahoma “the most pro-life state in the country.”

I suppose we’ll be able to infer the answers to my questions once Justice Alito’s leaked draft opinion in the Mississippi abortion case is tidied up and properly released.

If Justice Alito and his allies care to look, they will see a future in which American women, traveling to states where abortions are still readily available, are pursued by vigilantes seeking bounties.

Justice Alito likes to invoke history — although many of the historical references in his draft opinion were misleading or downright bizarre. Has he ever heard, for instance, of the Fugitive Slave Act?

I hope my law school friends and colleagues will forgive me, but I am tired of talking about the right to abortion in terms of constitutional doctrine. I have spent years, as they have, in urgent conversation about due process and undue burdens, extrapolating from the opacities of Planned Parenthood v. Casey, the 1992 decision that against all odds reaffirmed the essence of Roe v. Wade, thanks to three Republican-appointed justices who were supposed to do the opposite.

It hasn’t worked. The current Supreme Court majority will do what it will do, which is to say what it was put there to do.

The message of the Alito draft is that the age of constitutional argument is over. There’s a case to be made that it died a long time ago, but in any event, here is my final question to the justices: What, other than raw power, will take its place?

May 22

New York Times Magazine, America Almost Took a Different Path Toward Abortion Rights, Emily Bazelon (Staff writer for The New York Times Magazine and the Truman Capote fellow for creative writing and law at Yale Law School), May 22, 2022 (print ed.). Before 'Roe v. Wade,' there were other links in the long chain of reasons the U.S. has arrived at a precarious moment for abortion rights.

For three days in January 1970, they filled the 13th floor of the federal courthouse in Manhattan, women of all ages crowded into a conference room, sitting on the floor, spilling into the hallway. Some brought friends or husbands. One nursed a baby. Another was a painter who also taught elementary school. A third had gone to Catholic school. They’d come to give testimony in the case of Abramowicz v. Lefkowitz, the first in the country to challenge a state’s strict abortion law on behalf of women.

The witnesses in the courthouse were among 314 people, primarily women, brought together by a small team of lawyers, led by Florynce Kennedy and Nancy Stearns, to set up a legal argument no one had made before: that a woman’s right to an abortion was rooted in the Constitution’s promises of liberty and equal protection. New York permitted abortion only to save a woman’s life. Kennedy and Stearns wanted the court to understand how risking an illegal procedure or carrying a forced pregnancy could constrict women’s lives in ways that men did not experience.

In the conference room, the women were giving sworn depositions for the judges to read later. One testified that as a 19-year-old Vassar student, she was driven blindfolded to Washington, D.C., for an illegal abortion and bled for days afterward. She broke down as she described going to see a gynecologist in Poughkeepsie who threatened to call the police so they could take her to jail. Another woman, speaking matter-of-factly, said that when she became pregnant and had to carry the fetus to term, she was forced to take a leave of absence from Queens College and lost her scholarship. The press was allowed to attend, making the women’s words public.

Lawyers representing the State of New York repeatedly objected to the testimony. When a freelance writer tearfully described giving a child up for adoption — “the most painful, difficult part of the experience was leaving the baby behind,” she said — Joel Lewittes, from the state attorney general’s office, stepped in. “I am going to move to strike all of the testimony as being irrelevant,” he said. Someone yelled “Pig!” and the room burst into applause.

Florynce Kennedy scolded Lewittes for callousness. “I regard this case as a very definite platform for exploring the extent of the legalized oppression of women,” she said. “And I personally don’t, for one second, intend to lose sight of my objectives.”

Those objectives started with forcing the courts to confront the impact of a near ban on abortion on women’s lives. “When we couldn’t control when we had a baby, we weren’t free and we weren’t equal,” Nancy Stearns, the lead writer of the briefs in the case, explained to me recently over the phone. “That was our fundamental argument,” she said of putting gender equality at the center of the case. “It was clearly even stronger for low-income women.”

At the time, Stearns’s framing was unheard-of as a legal theory. It wasn’t just that the Supreme Court hadn’t decided a case about abortion. The court “had never found a single law to violate the equal-protection clause because it discriminated on the grounds of sex,” Reva B. Siegel, a Yale Law professor, explained in The Boston University Law Review in 2010.

And so Stearns, Kennedy and the feminist movement they represented pursued a two-pronged strategy. As Kennedy put it, “When you want to get to the suites, start in the streets.” She was a prominent figure in the civil rights and Black Power movements. As an experienced litigator, “she understood going to court as a one-ass-at-a-time proposition,” Sherie M. Randolph, her biographer, told me. “To get anything to move, you needed activism.” Stearns, who was just three years out of law school at the time, also came up in the civil rights movement, working for the Student Nonviolent Coordinating Committee in the South.

May 21

Washington Post, Investigation: Ginni Thomas, wife of Supreme Court justice, pressed Ariz. lawmakers to help reverse Trump’s loss, emails show, Emma Brown, May 21, 2022 (print ed.). Virginia “Ginni” Thomas, the conservative activist and wife of Supreme Court Justice Clarence Thomas, pressed Arizona lawmakers after the 2020 election to set aside Joe Biden’s popular-vote victory and choose “a clean slate of Electors,” according to emails obtained by The Washington Post.

The emails, sent by Ginni Thomas to a pair of lawmakers on Nov. 9, 2020, argued that legislators needed to intervene because the vote had been marred by fraud. Though she did not mention either candidate by name, the context was clear.

Just days after media organizations called the race for Biden in Arizona and nationwide, Thomas (shown at right in a photo by Gage Skidmore)  urged the lawmakers to “stand strong in the face of political and media pressure.” She told the lawmakers the responsibility to choose electors was “yours and yours alone” and said they have “power to fight back against fraud.”

Thomas sent the messages via an online platform designed to make it easy to send pre-written form emails to multiple elected officials, according to a review of the emails obtained under the state’s public records law.

The messages show that Thomas, a staunch supporter of Donald Trump, was more deeply involved in the effort to overturn Biden’s win than has been previously reported. In sending the emails, Thomas played a role in the extraordinary scheme to keep Trump in office by substituting the will of legislatures for the will of voters.

Thomas’s actions also underline concerns about potential conflicts of interest that her husband has already faced — and may face in the future — in deciding cases related to attempts to overturn the 2020 election. Those questions intensified in March, when The Post and CBS News obtained text messages that Thomas sent in late 2020 to Trump’s chief of staff, Mark Meadows, pressing him to help reverse the election.

The emails were sent to Russell Bowers, a veteran legislator and speaker of the Arizona House, and Shawnna Bolick, who was first elected to the chamber in 2018 and served on the House elections committee during the 2020 session.

May 18

Washington 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, Opinion: The Supreme Court just made corruption a little easier, Ruth Marcus, right, May 17, 2022.Sen. Ted Cruz’s (R-Tex.) victory at 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

Washington 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, Opinion: Roe’s impending reversal is a 9/11 attack on America’s social fabric, Dana Milbank, right, May 15, 2022 (print ed.). Washington’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).

Washington 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, Opinion: Justice Thomas thinks he’s being ‘bullied’? He could use a history lesson, Colbert I. King, right, May 14, 2022 (print ed.). The 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

New 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, Opinion: Republicans as ‘compassionate consensus builders’? E.J. Dionne Jr., right, May 12, 2022 (print ed.). It’s still early, but my nomination 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, 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, 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

Washington 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 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.

The 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.

New 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, 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, 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 Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array. 

 New 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.

New 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, 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.

New 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, 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.

New 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.

New 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.

New 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, 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.

New 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, 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.

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 Abramson, 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, legal 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).

 New 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, 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

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. In 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 is 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 to 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.

My 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

• Washington Post, In draft opinion on abortion, Democrats see a court at odds with democracy
• Washington Post, Roberts says court will investigate leak of draft Roe v. Wade opinion
• Politico, Exclusive, Supreme Court has voted to overturn abortion rights, draft opinion shows, Josh Gerstein and Alexander Ward
• Washington Post, Opinion: The leaked draft Roe opinion is a disaster for the court, Ruth Marcus
• Washington Post, Justices poised to overturn Roe v. Wade, leaked draft opinion shows; Disclosure seen as extreme breach of modern Supreme Court protocol
• Washington Post, Majority of Americans say Roe v. Wade should be upheld, poll finds
• New York Times, Biden Urges Lawmakers and Voters to Fight for Abortion Rights
• Washington Post, What would happen if Roe v. Wade is overturned
• Washington Post, Analysis: Overturning Roe v. Wade could upend the midterms
• New York Times, As Leak Theories Circulate, Supreme Court Marshal Takes Up Investigation
• Politico, Roberts investigation could make the Supreme Court very uncomfortable
• New York Times, Opinion: Overturning Roe Is a Radical, Not Conservative, Choice, Bret Stephens
• Washington Post, Opinion: Let’s throw out the term ‘culture wars.’ This is religious tyranny, Jennifer Rubin
• Washington Post, With Roe at risk, GOP faces pressure to support families after birth
• Washington Post, Editorial: The court might never recover from overturning Roe
• Washington Post, Opinion: The court has shifted on abortion over 50 years. I have, too, Kathleen Parker

Top Stories

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, 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, 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.

Chief 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.

• Politico, Exclusive, Supreme Court has voted to overturn abortion rights, draft opinion shows, Josh Gerstein and Alexander Ward
• MSNBC, Politico Reporter On Obtaining Leaked SCOTUS Draft Opinion Overturning 'Roe V. Wade

Washington 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, 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 that 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., 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, 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

Washington 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.

New 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.

The 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, 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.

New 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.

But 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.

There 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.

New 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 decision 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, 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 politics 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 possibly 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 afforded 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, 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, 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, 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 privacy, 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  

Washington 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, 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 that 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, 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.

Chief 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, 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, 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.

New 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.

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.

Gov. 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 settled 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 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.

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.

The 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

Washington 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.

The 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, 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

Legal Schnauzer, Investigative Commentary: In the wake of Birmingham attorney's shocking suicide, attention turns to possible obstruction of justice, criminal concealment, 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 firm 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.”

Balch 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 arrested 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

New York Times, Opinion: Roberts Has Lost Control of the Supreme Court, Stephen I. Vladeck, April 13, 2022. Professor Vladeck, right, teaches courses on the federal 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.

But 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 Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

Washington 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 reproductive 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 decide 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, 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 activists 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 Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

Washington 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 Supreme 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) 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, 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).

Washington 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.

Washington 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, Analysis: New version of high court takes shape, Robert Barnes, right, April 8, 2022 (print ed.). Ketanji Brown Jackson’s presence will go a long 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.

Washington 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 of 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.

I 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.

Bloomberg, Thomas Poses With Senate Candidate Walker in Supreme Court Photo, Greg Stohr, April 8, 2022. It comes amid scrutiny stemming from wife’s political work, Walker was in Washington to receive Horatio Alger Award

Justice Clarence Thomas spent time at the U.S. Supreme Court this week with Republican U.S. Senate candidate Herschel Walker, posing for a photo tweeted out by the former football star’s campaign spokesperson.

The photo comes amid scrutiny of the conservative justice stemming from the political activities of his wife, Virginia Thomas, including text messages she sent urging then-President Donald Trump’s chief of staff to do more to overturn Joe Biden’s election victory.

A number of judicial-ethics experts have said those efforts should have prompted Thomas to recuse himself from election-related cases the court handled. Thomas was the lone dissenter when the court cleared the way for some of Trump’s White House papers to be turned over to the congressional panel investigating the Jan. 6 Capitol attack.

Ginni Thomas’s Pro-Trump Texts Put Husband’s Court Role in Focus

Neither Thomas nor Walker’s campaign immediately responded to requests for comment.

Polls show Walker, who won the Heisman Trophy in 1982 and went on to play for the National Football League, with a wide lead in Georgia’s Republican Senate primary. But in recent weeks, his opponents have deepened attacks, raising questions about his chances in a general election against the Democratic incumbent, Raphael Warnock.

Walker’s former wife, Cindy Grossman, once accused him of putting a gun to her head. He has written and spoken about his past struggles with mental illness. In an interview with Axios last December, he did not address Grossman’s allegation directly but said he was “always accountable to whatever I’ve ever done.”

He was in Washington to receive an award from the Horatio Alger Association, on whose board Thomas sits as an honorary member. The group said on Twitter that recipients received medallions at an event at the Supreme Court on Thursday evening. The court has generally been closed to the public since the coronavirus pandemic began in 2020.

The photo offers the first public glimpse of Thomas since he was hospitalized March 18 for what became a week-long stay to treat an infection. Thomas was absent from the courtroom for two weeks of arguments, though he asked questions remotely during the second week.

Trump recruited Walker to run for the Senate seat, now held by Warnock, in a race that will help determine which party controls the chamber starting next year.

April 6

Washington 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 could 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.

The 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.”

New 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.

The 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

• Washington Post, Editorial: Republican excuses for rejecting Jackson are absurd
• Washington Post, Analysis: Mitt Romney’s historic flip on Ketanji Brown Jackson, Aaron Blake
• The Hill, GOP sends Biden warning shot on future Supreme Court vacancies

April 5

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, 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, 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.

The 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, March 22, 2022.

Washington 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.

In 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, 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, Analysis: Americans disapprove of GOP pushback on Ketanji Brown Jackson, poll says, Aaron Blake

Washington 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 questions 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, March 22, 2022.

Washington 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.

New 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?

The 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 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.

New 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 Journalist"), 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

Washington 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.

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."

He 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).

Washington 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 Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

Washington 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 sounds 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.”

Supreme 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, March 22, 2022.

Washington 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 low 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, 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?”

Graham 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).

 Washington Post, Analysis: Ginni Thomas’s texts reveal fears, motivation behind efforts to overturn election, Dan Balz, right, March 26, 2022. The messages 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, 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, 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, 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!”

Recent headlines

• Steady, Commentary: What Does Clarence Thomas Know? And when did he know it? Dan Rather
• New York Times, A Times Magazine investigation detailed how far Ginni Thomas was willing to go after Donald Trump’s 2020 election loss, Danny Hakim and Jo Becker
• Washington Post, The Archives: Justice often runs into conflicts of interest with wife’s activism, critics say, Michael Kranish

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.

Washington Post, Opinion: This is not advise and consent. This is smear and degrade, Ruth Marcus, right, March 26, 2022. The pretense is gone — the pretense 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 Judg