U.S. High Courts, Cases 2020-22

 

 JIPLogo

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

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

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

 

2020-2021-2022

 

December

Dec. 7

washington post logoWashington 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.

ny times logoNew 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 jamelle bouiewrit 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.”

ny times logoNew 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.

 

samuel rappylee bateman polygamous town arrest 221204 69

washington post logoWashington 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 batemanSamuel 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

ny times logoNew 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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

ny times logoNew York Times, A New Clash Between Faith and Gay Rights Arrives at a Changed Supreme Court, Adam Liptak, right, Dec. 4, 2022. A Colorado graphic adam liptakdesigner 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

 

supreme court Custom

washington post logoWashington 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 ruth marcusletter 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 samuel alito oorganization 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

 

supreme court headshots 2019

 

djt handwave file

washington post logoWashington 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.

irs logoThe 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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

ny times logoNew York Times, 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.

john roberts oThe 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.

 

joe biden black background resized serious file

washington post logoWashington 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

ny times logoNew 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.”

samuel alito oA 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

 

 merrick garland new

washington post logoWashington 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, ruth marcusshown 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 vestJack 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 logoWashington 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.

samuel alito oJustice 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

 

9 11 world trade center smoking on 9 11 flikr michael foran

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 wtc towers 9 11 michael foran_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 george w bush oval iraq 2003 w_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.”

kristen breitwasser cover“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 logoWashington 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

ny times logoNew 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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

washington post logoWashington Post, Opinion: The tragedy of John Roberts, Ruth Marcus, right, Nov. 4, 2022. On the final day of oral arguments last term, the chief justice’s voice ruth marcuscracked 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.

john roberts oAs 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

ny times logoNew 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 Associate Supreme Court Justice Clarence Thomas (Pool photo by Erin Schaff via Getty Images).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 politico Customonly 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 logoWashington 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.

john roberts oWithout 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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

washington post logoWashington Post, 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.

Associate Supreme Court Justice Clarence Thomas (Pool photo by Erin Schaff via Getty Images).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 robeKetanji 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 logoWashington Post, Opinion: Colleges will racially discriminate no matter how the Supreme Court rules, George F. Will, right, Oct. 30, 2022 (print ed.). Two george f willmomentous 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 harvard logooutcomes 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.

ny times logoNew 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 linda greenhouse thumb Customaffirmative 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.

sandra day oconnor oJustice 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

ny times logoNew 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),  marcy wheelerEmptywheel, 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 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).by Eric Crossan via New York Times).

ny times logoNew 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 twitter bird Customacquire 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.

elon musk 2015The 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.

 

samuel alito horizontal headshot

washington post logoWashington 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). (Safe Image)

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

ny times logoNew 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.

ny times logoNew 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.

samuel alito oSenator 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

 

 

This week's new official portrait of the U.S. Supreme Court

The U.S. Supreme Court

 washington post logoWashington 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

 

joe biden black background resized serious filewashington post logoWashington 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.

USTR seal Custom 2Biden’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.”

ny times logoNew 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

 

djt fbi evidence mar a lago

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.

politico CustomThe 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

 

maggie haberman confidence man

washington post logoWashington 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.)

djt roger stone CustomOff 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.

djt roy cohn fileTrump’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).

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

washington post logoWashington Post, Opinion: Justice Thomas should step back from the Mar-a-Lago documents case, Colbert I. King, right, Oct. 8, 2022 colbert king twitter(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 clarence thomas cover my grandfathers son covermost 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.”

joe biden w“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).

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).

ny times logoNew 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

This week's new official portrait of the U.S. Supreme Court

ny times logoNew 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.

ny times logoNew 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

Oct. 2

 

 

This week's new official portrait of the U.S. Supreme Court

This week's new official portrait of the U.S. Supreme Court

ny times logoNew 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

ny times logoNew 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.

american flag upside down distressBut 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.

john roberts oChief 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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

 

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. 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.”

politico CustomThe 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 logoWashington 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 logoWashington 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

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

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).

ny times logoNew 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.

american flag upside down distressIf 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.

Sept. 22

washington post logoWashington 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

 

 djt handwave file

washington post logoWashington 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.

geoffrey berman sdnyWhen 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.”

Justice Department log circularWith 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.”

geoffrey berman bookBerman 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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

Politico, 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.

politico CustomBut 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

 

supreme court Custom

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.

politico Custom“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.

Elena Kagan O HRKagan, 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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

washington post logoWashington Post, 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.

john roberts o“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

 

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. (U.S. Department of Justice)

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 logoWashington 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). (Safe Image)

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

washington post logoWashington Post, Investigation: 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

 

 

djt barr conferring headshots

ny times logoNew 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 neal katyal omemo 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 robert mueller testifying flickrappointees 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 wayne madsen may 29 2015 cropped Smallintelligence 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 wayne madesen report logofiles 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.

aldrich ames mugjohn solomonAs 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.”

samuel alito oNow, 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.”

john roberts oIt 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.

rolling stone logoIn 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 logoWashington 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

 

mar a lago aerial Custom

Wall Street Journal, Trump Says Mar-a-Lago Home Raided by FBI Agents, Alex Leary, Sadie Gurman and Aruna Viswanatha, Aug. 8, 2022. Search FBI logowas 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, wayne madsen may 29 2015 cropped Small2022. 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.

wayne madesen report logoAlito 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


samuel alitohuffington post logoHuffPost, 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.

politico CustomA 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). Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). 

washington post logoWashington Post, Opinion: Here’s a test to see whether Supreme Court justices are above the law, Jennifer Rubin, right, July 28, 2022. The 65 jennifer rubin new headshotProject, 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 ginni thomas gage skidmorethe 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

 

liz cheney screengrab capitol

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).

politico CustomRep. 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.”

ginni thomas gage skidmoreCheney 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.

July 24

 

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

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

ny times logoNew York Times, Opinion: 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 linda greenhouse cover just a journalist1978 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

ny times logoNew 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 logoWashington 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 thomas jefferson rembrandt Peale 1800offer 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 seth abramson graphicUnder 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.

seth abramson proof logoAround 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, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

July 13

 

djt as chosen one

Proof, Investigative Commentary: Did Donald Trump Commit Treason on December 18, 2020? The Arguments on Both Sides of a Suddenly seth abramson graphicPressing 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.

seth abramson proof logoThe 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, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

washington post logoWashington 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

rolling stone logoAn 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.

ny times logoNew York Times, Opinion: Why Overturning Roe Will Unleash a Legal Storm for the Supreme Court, Harry Litman (below right, a former U.S. harry litman msnbc screenshotattorney 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 logoWashington 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

 

djt hands open amazon safe

Proof, Investigative Commentary: Trump Addressed Extremists Via Zoom 96 Hours Before the Capitol Attack—Some of Whom Thereafter seth abramson graphicTrespassed 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.

seth abramson proof logoOn 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, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

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

washington post logoWashington Post, Opinion: Biden has put the forced-birth crusaders on notice, Jennifer Rubin, right, July 10, 2022. If there was any lingering jennifer rubin new headshotdoubts 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.

politico CustomLike 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.

politico CustomLast 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 logoWashington 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

 

climate change photo

.

washington post logoWashington 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. john roberts oRoberts 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 logoWashington 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 john donohue new(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 logoWashington 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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

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

rolling stone logoAt 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 logoWashington 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

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.

ny times logoNew 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.

norma mccorvey jane roe 1989McCorvey, 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.

southern baptist convention logoA 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 rules. 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 logoWashington 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.

 

supreme court building

ny times logoNew 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.”

stephen breyer full portraitBut 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.

antonin scalia HR 1300In 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 stephen breyer cover democracythat 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 logoWashington 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).

From left: Cassidy Hutchinson; Michael Cohen; Randy Credico (Washington Post Photos by Demetrius Freeman; Jahi Chikwendiu; and Astrid Riecken).

washington post logoWashington 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:

ny times logoNew 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 logoWashington 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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

ny times logoNew York Times, Supreme Court 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.

epa general logoThe 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.”

 joe biden flag profile uncredited palmer

washington post logoWashington 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.

scotus gop six

washington post logoWashington 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).

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.

ny times logoNew 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.

ketanji brown jackson stephen breyerJustice 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.

 

scotus democracy docket state legs

washington post logoWashington 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).

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.

politico CustomThe 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.”

 ny times logoNew 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.”

ny times logoNew 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.

ny times logoNew 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.

mitch mcconnellMcConnell, 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.

ny times logoNew York Times, Wisconsin Court Validates a Republican Strategy to Preserve Power, Michael Wines, June 29, 2022. The Senate’s method wisconsin supreme court seal Customof 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 wisconsin map with largest cities Customboard members.

The ruling allows a Republican member of the state Natural Resources Board whose term expired in May 2021, Frederick Prehn, to keep tony evers ohis 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).

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).

ny times logoNew 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.

 

djt jan 6 twitter

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.

ny times logoNew 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.

Mark MeadowsDrawing 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 logoWashington 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 logoWashington 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

 

Top Stories

 

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

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

 ny times logoNew 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.

john roberts oChief 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 logoWashington 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.

ny times logoNew 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.

samuel alito oIn 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 clarence thomas HRsodomy 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.”

 

joe biden flag profile uncredited palmer

washington post logoWashington 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).

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 dan rather 2011anchor and managing editor), June 24, 2022.

What to say that hasn’t been said but needs to be said again, and again, and again:

dan rather steady logoThis 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 logoWashington 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 logoWashington Post, Opinion: The Supreme Court eviscerates abortion rights and its own legitimacy, Jennifer Rubin, right, June 24, 2022. While we jennifer rubin new headshotknew 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' npr logodecision, 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 bryantPHIL 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 logoWashington 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

June 23

 supreme court headshots 2019

ny times logoNew 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).

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

ny times logoNew 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).

House Jan. 6 Select Investigating Committee Chair Bennie Thompson (D-MS.) ((Photo via NBC News).

ny times logoNew 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.

 

steven engel jeffrey rosen richard donoghue jonathan ernst pool getty images june 23 2022

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).

ny times logoNew 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.

 

jeffrey clark nyt

ny times logoNew 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 politico Customtop 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 louis gohmertarrange 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), matt gaetz o Customabove 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. mo brooks oRep. 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.

 

supreme court headshots 2019

ny times logoNew 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 logoWashington 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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

ny times logoNew York Times, Supreme Court 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.

 

supreme court Custom

supreme court headshots 2019

ny times logoNew 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 logoWashington 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 ginni thomas gage skidmoreof 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.”

  • Analysis: 6 video clips to catch up on from the Jan. 6 hearings so far
  • Panel seeks footage from filmmaker with access to Trump

washington post logoWashington Post, Opinion: Another reason for the Jan. 6 hearings: The GOP is still attacking democracy, Jennifer Rubin, right, June 21, 2022. jennifer rubin new headshotRetired 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). (Safe Image)

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

washington post logoWashington Post, 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 logoWashington 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.

ginni thomas gage skidmoreThe 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.

arizona mapThe 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 republican elephant logoa 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 logoWashington 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.

ginni thomas gage skidmoreThe 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.

arizona mapThe 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 republican elephant logoa 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 logoWashington 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.

amy coney barrett headshot notre dame photoSupreme 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.

ny times logoNew 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 logoWashington 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 logoWashington Post, Opinion: Kavanaugh threat exposed weaknesses in judicial security — and our discourse, Ruth Marcus, right, June 10, ruth marcus twitter Custom2022 (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
watergate burglarswatergate conference photoKingston 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 logoWashington 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.

brett kavanaughA 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.

 U.S. Sen. Susan Collins (R-Maine), shown in a 2020 photo by Gage Skidmore.

 

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

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

washington post logoWashington Post, Opinion 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

 

Justice Department logo

washington post logoWashington 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.

william barr new oWhich 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 fox news logo Smalldownplayed 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 logoWashington Post, Opinion: In death row case, the Supreme Court says guilt is now beside the point, Radley Balko, right, June 3, 2022 (print ed.). radley balko catoIn 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 logoWashington 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.

twitter bird CustomThe 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.

facebook logoThe 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

 

supreme court building

cnn logoCNN, 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.

john roberts oChief 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.

gail curleyRoberts 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.

ny times logoNew 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 logoWashington 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

ny times logoNew 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. linda greenhouse cover just a journalistGreenhouse, 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

ny times logoNew 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 logoWashington 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,” accorginni thomas gage skidmoreding 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.”

arizona mapThomas 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 republican elephant logoscheme 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

 supreme court headshots 2019

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

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

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

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

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

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

May 17

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

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

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

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

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

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

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

May 15

 

supreme court Custom

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

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

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

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

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

The next frontier for the antiabortion movement: A nationwide ban

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

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

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

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

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

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

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

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

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

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

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

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

May 14

 

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

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

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

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

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

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

Thomas says respect for institutions is eroding

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

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

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

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

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

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

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

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

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

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

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

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

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

Talk about unwilling to “live with outcomes.”

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

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

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

May 12

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That phrase comes from a memo leaked from the National Republican Senatorial Committee (NRSC), the group charged with helping the GOP win U.S. Senate races. In the wake of Politico’s publication of Justice Samuel A. Alito Jr.’s draft opinion overturning Roe v. Wade, the memo’s architects were trying to help Republican candidates protect themselves from the growing backlash.
Sign up for a weekly roundup of thought-provoking ideas and debates

The committee advises every Republican candidate to “be the compassionate, consensus builder on abortion.” The document stresses that most Americans believe “we should care for and support pregnant women in difficult circumstances.”

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

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

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

May 11

 

supreme court Custom

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What difference could a criminal investigation make?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 8

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

supreme court Custom

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

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

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

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

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

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

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

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

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

May 7

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

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

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

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

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

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

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

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

Now the chasm may open even wider.

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

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

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

It need not remain like that.

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

May 6

 

Justice Clarence Thomas (left) and Justice Samuel Alito.

Justice Clarence Thomas (left) and Justice Samuel Alito.

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

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

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

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

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

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

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

May 5

 

supreme court Custom

 

supreme court 2018 group photo cropped Custom

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

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

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

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

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

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

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

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

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

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

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

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

May 4

Headlines

Top Stories

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It would be a radical, not conservative, choice.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 3  

 

 

supreme court resized 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

disney world mickey mouse facebook

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

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

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

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

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

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

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

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

May 2

 

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

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

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

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

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

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

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

 

April 2022

April 21

 supreme court resized 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

April 19

William

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

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

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

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

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

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

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

Attention appears to be spreading beyond Alabama. Writes Forbes:

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

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

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

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

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

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

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

Concealment has been a consistent element.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

April 13

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

April 10

 

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

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

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

Not long ago, whether to confirm a Supreme Court nominee was not a predictably party-line affair, with a handful or fewer of defectors. In 2005, Chief Justice John G. Roberts Jr. was confirmed with 78 votes, and Democratic senators split equally on the nomination, 22 in favor and 22 against. That lopsided tally — earlier confirmations were, for the most part, more lopsided — is now a quaint artifact of a less polarized era.
Sign up for a weekly roundup of thought-provoking ideas and debates

The Senate finds itself now on the verge of a dangerous new reality, in which a Senate controlled by the party opposing the president might simply refuse to confirm a nominee, period. A tradition of deference to presidential prerogatives — of believing that elections have consequences, as Sen. Lindsey O. Graham (R-S.C.) liked to say in one of his earlier incarnations — is over. If the Senate majority is big and unified enough, it will defy the president.

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

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

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

April 9

 

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

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

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

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

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

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

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

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

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

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

April 8

 

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

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

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

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

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

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

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

joe biden kentaji brown jackson kamala harris

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

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

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

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

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

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

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

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

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

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

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

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

 

anita hill 2013 documentary poster

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

The shameful spectacle of the Senate Judiciary Committee during the confirmation hearings for Supreme Court nominee Ketanji Brown Jackson makes clear: The confirmation process is broken and the panel must act to restore people’s faith in it.
Sign up for a weekly roundup of thought-provoking ideas and debates

This is not simply about Jackson’s reputation, which was repeatedly smeared by Republican senators peddling false narratives about her supposed coddling of child pornographers and terrorists. It is about the legacy and future of the Senate and the Supreme Court itself.

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recent Headlines

April 5

 

virginia thomas donald trump jr amazon 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

April 4

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The reasons they have concocted are not credible. Mr. Graham voted to confirm Judge Jackson to the U.S. Court of Appeals for the District of Columbia Circuit, the second-most powerful court in the country, less than a year ago. Yet Mr. Graham has suddenly concluded that she has a “record of judicial activism.”
Sign up for a weekly roundup of thought-provoking ideas and debates

Mr. Sasse complained that Judge Jackson “refused to claim originalism as her judicial philosophy.” In fact, the extent to which she embraced originalism made many liberals uncomfortable. “I believe that the Constitution is fixed in its meaning,” Judge Jackson said in her confirmation hearings. “I believe that it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.” If that is not good enough for Mr. Sasse, he is committing to reject any Supreme Court nominee selected by a Democratic president. Perhaps that is the point.

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

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

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

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

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

April 2

 

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

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

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

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

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

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

 

merrick garland new

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

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

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

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

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

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

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

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

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

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

April 1

 

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

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

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

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

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

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

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

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

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

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

 

March 2022 Update

March 31

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 28

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 27

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

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

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

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

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

Race hovered over Ketanji Brown Jackson’s confirmation hearing

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

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

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

March 26

U.S. Supreme Court Scandal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

washington post logoWashington Post, Thomas’s wife is a political extremist. This is a problem for the court, Editorial Board, March 26, 2022 (print ed.). It is no revelation that conservative activist Virginia Thomas, Supreme Court Justice Clarence Thomas’s wife, is a political extremist. But The Post’s Bob Woodward and CBS News’s Robert Costa showed just how close she was to President Donald Trump’s plotting to overturn the 2020 presidential election, which culminated in the Jan. 6, 2021, Capitol ransacking. The disturbing revelations only deepen the threat her entanglements pose to the court’s legitimacy.
Sign up for a weekly roundup of thought-provoking ideas and debates

Mr. Woodward and Mr. Costa revealed Thursday 29 text messages between Ms. Thomas and Trump White House Chief of Staff Mark Meadows, as Mr. Trump sought the Supreme Court’s help to reverse the election. “We are living through what feels like the end of America,” she wrote four days after Jan. 6 — but not in reference to the rioters who called for then-Vice President Mike Pence’s blood. “Most of us are disgusted with the VP and are in listening mode to see where to fight with our teams,” she said, indicating that she wished Mr. Pence had illegally overturned the election results.

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

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

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

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

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

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

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

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

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

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

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

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

Recent headlines

More On Supreme Court Nominee

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 Recent Headlines

March 25

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

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

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

Race hovered over Ketanji Brown Jackson’s confirmation hearing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 24

 

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

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

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

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

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

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

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

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

It is unclear to whom Thomas was referring.

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

In other words: This is a press release.

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

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

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

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

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

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

 

Supreme Court Confirmation Hearing

 

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

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

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

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

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

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

Here’s what to know

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

Key updates

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recent Related Headlines

supreme court Custom

Other Supreme Court News

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

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

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

You’d be mistaken.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Three items this week:

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

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

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

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

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

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

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

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

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

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

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

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

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

March 23

 

djt phone amazon public images

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The justices said the court should have considered “whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.”

The case came to the U.S. Supreme Court on an emergency basis, or what critics call its “shadow docket,” in which justices make decisions without oral argument or extensive briefing.

Dissenting Justices Sonia Sotomayor and Elena Kagan said that was a mistake.

“The Court’s action today is unprecedented,” wrote Sotomayor. “In an emergency posture, the Court summarily overturns a Wisconsin Supreme Court decision resolving a conflict over the State’s redistricting, a decision rendered after a 5-month process involving all interested stakeholders.”

Both the governor’s map and the one proposed by the legislature leave the GOP in commanding position to control the legislature.

The Supreme Court’s opinion said the Wisconsin court “is free to take additional evidence if it prefers to reconsider the Governor’s maps rather than choose from among the other submissions. Any new analysis, however, must comply with our equal protection jurisprudence.”

March 22

 

 President Biden's Supreme Court Nominee, U.S. Circuit Court of Appeals Judge Ketanji Brown Jackson, center, is shown in file photos with Republican Senate Judiciary Committee members Ted Cruz (TX), left, and Josh Hawley (MO).hawley

President Biden's Supreme Court Nominee, U.S. Circuit Court of Appeals Judge Ketanji Brown Jackson, center, is shown in file photos with Republican Senate Judiciary Committee members Ted Cruz (TX), left, and Josh Hawley (MO).

washington post logoWashington Post, Jackson pledges independence, neutrality in confirmation hearing, Seung Min Kim, Ann E. Marimow and Aaron C. Davis, March 22, 2022 (print ed.). Judge Ketanji Brown Jackson, who will be the first Black woman on the Supreme Court if confirmed, spent her official introduction before the Senate Judiciary Committee detailing her approach as a judge.

Supreme Court nominee Ketanji Brown Jackson on Monday promised she would be an independent jurist who will decide cases “without fear or favor” — emphasizing her neutrality on the bench in hopes of heading off the expected criticism from Republicans that she has been a judicial activist.

ketanji brown jackson robeJackson, right, who will be the first Black woman on the Supreme Court if confirmed, spent her official introduction before the Senate Judiciary Committee detailing her approach as a judge, describing it as narrowly focused on resolving the issues before her. She has been a federal judge for nine years, both on the trial court and now on the U.S. Court of Appeals for the District of Columbia Circuit.

“I know that my role as a judge is a limited one — that the Constitution empowers me only to decide cases and controversies that are properly presented. And I know that my judicial role is further constrained by careful adherence to precedent,” Jackson said.

In anticipation of questions from Republicans about her judicial philosophy and rulings against the Trump administration, Jackson emphasized that she decides cases from a “neutral posture.”

“I evaluate the facts, and I interpret and apply the law to the facts of the case before me, without fear or favor, consistent with my judicial oath,” she said.

Jackson’s opening remarks capped off a day when both Democratic and Republican senators — who took turns delivering their own statements on the first day of Jackson’s four-day confirmation hearings — indicated they were eager to turn a page away from the bitterness and heated rhetoric of past Supreme Court confirmation battles.

Yet at the same time, a handful of Senate Republicans unspooled years of political grievances about the judiciary wars, as they invoked not just the grueling fight over now-Justice Brett M. Kavanaugh’s confirmation nearly four years ago but also the treatment of other GOP judicial nominees dating back to Robert Bork in 1987.

washington post logoWashington Post, Live Reports: Senators to question Ketanji Brown Jackson on Day 2, John Wagner, March 22, 2022. Republicans signaled they’ll probe historic nominee’s judicial philosophy and record; Video: How other Supreme Court nominees answered questions on "Roe v. Wade"; Durbin pushes back on allegations from GOP colleagues Blackburn and Hawley.

Supreme Court nominee Ketanji Brown Jackson will face a first round of questioning Tuesday from the Senate Judiciary Committee during the second day of her confirmation hearings. While Democrats have lauded President Biden’s historic nominee, Republicans have signaled they will probe Jackson’s judicial philosophy and her record as a public defender and member of the U.S. Sentencing Commission.

During an opening statement Monday, Jackson, who has been a federal judge for nine years, promised she would be an independent jurist who will decide cases “without fear or favor.” If confirmed, she would be the first Black woman on the Supreme Court in its 233-year history.

Here’s what to know

  • Senators will get a second opportunity to question Jackson on Wednesday. Thursday will feature testimony from outside witnesses.
    Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) has set a goal of confirming Jackson before the Easter recess, which is scheduled to begin April 8.
  • Jackson is widely expected to be confirmed, as no Democratic senator so far has signaled any concern about supporting her nomination and only a simple majority of the 50-50 Senate is needed for confirmation, with Vice President Harris empowered to break ties.
  • Jackson, 51, has been nominated by Biden to replace retiring Justice Stephen G. Breyer. Breyer, 83, the high court’s oldest justice, has been a reliable liberal vote.
  • Starting at 8:30 a.m. Eastern, The Washington Post will present a “Special Report with Libby Casey” featuring reporting and analysis of the confirmation hearings.

March 21

 

President Biden and Vice President Kamala Harris introduce at a White House ceremony Supreme Court nominee Kentaji Brown Jackson, center, a judge on the U.S. District of Columbia Court of Appeals (pool photo, Feb. 25, 2022).

President Biden and Vice President Kamala Harris introduce at a White House ceremony Supreme Court nominee Kentaji Brown Jackson, center, a judge on the U.S. District of Columbia Court of Appeals (pool photo, Feb. 25, 2022).

 ny times logoNew York Times, Supreme Court Live Updates: Confirmation Hearings for Ketanji Brown Jackson Begin, Staff Reports, March 21, 2022 (video). 
President Biden’s nominee to the Supreme Court is facing the first of four days before the Senate Judiciary Committee. Senators are making opening statements, and Judge Jackson will deliver her own remarks.

The Senate Judiciary Committee on Monday will kick off a historic set of hearings on President Biden’s nominee for the Supreme Court, Ketanji Brown Jackson, who would be the first Black woman to serve there.

The proceedings will introduce Judge Jackson, who currently sits on the influential U.S. Court of Appeals for the District of Columbia Circuit, to much of the country, and give senators a high-profile opportunity to question her on matters of law and policy.

Here’s how it will unfold and what to keep an eye on.

At 11 a.m., the Senate Judiciary Committee is scheduled to begin the hearing, which is to take place in a cavernous room outfitted in white marble and wood paneling near the Capitol. Senators will take turns making opening statements, and Judge Jackson will deliver her own remarks.

The hearings are very likely to end in Judge Jackson’s confirmation; Democrats can confirm her without a single Republican vote if they stay united. But they would like some G.O.P. support, and Monday’s session will signal how aggressively Republicans plan to question her, an early indicator of her chances of winning anyone over. Republicans have conceded it is a sensitive situation, considering that her confirmation is likely and they are loath to be seen as piling on against a woman of color with a gold-plated legal résumé and a reputation as a solid jurist.

The Hill, Commentary, Republicans are attacking Judge Jackson for defending poor people's rights, Austin Sarat and Dennis Aftergut, March 21, 2022.  Public defenders represent poor people who are accused of committing crimes. They do so not because they condone what their clients do, but because the rule of law and the Constitution require that no one be denied the right to counsel simply because they cannot afford to pay.

What public defenders do is as American as apple pie and the Fourth of July.

But you would never know it from listening to what Republicans have been saying about President Biden’s nomination of Judge Ketanji Brown Jackson to the Supreme Court.

As her confirmation hearings begin, we can expect them to continue to try to revive a tried-and-true party playbook stratagem by highlighting the “horrible” crimes committed by people she represented as a public defender and waving the banner of law and order.

On March 16, Sen. Minority Leader Mitch McConnell (R-Ky.) laid the groundwork for Republican members of the Senate Judiciary Committee to play the dog-eared “soft on crime” card against Jackson.

Never mind that before Jackson became a federal judge in 2013, she spent seven years at large law firms and seven at the United States Sentencing Commission. Not important to McConnell. He focused exclusively on Jackson’s time as a public defender from 2005-2007.

The last Supreme Court justice to have defended indigent people accused of crime was also Black: His name was Thurgood Marshall.

Because Jackson would be the first Black female Supreme Court Justice, the “soft on crime” meme in 2022 is about as subtle a dog whistle as was Richard Nixon’s “law and order” presidential campaign, or that of racist third-party candidate George Wallace, back in 1968.

Sens. Josh Hawley (R-Mo.), Ted Cruz (R-Texas) and Tom Cotton (R-Ak.), all putative competitors for the 2024 Republican Presidential nomination, will likely double down on McConnell’s concerns about Judge Jackson’s work zealously defending the rights of poor people.

That trio rehearsed this line of attack during Judiciary Committee hearings on other Biden nominees to the federal judiciary who were public defenders. They have repeatedly tried to question their anti-crime bona fides.

Add to them Sen. Chuck Grassley (R-Iowa), also on the committee. In June 2021, he said, “We need to carefully scrutinize these federal defender nominees because the left seems to think they’ll rule in a certain way.” Neither Grassley nor his Senate Republican colleagues expressed similar concerns about bias when former President Trump sent them the names of lawyers whose primary qualification seemed to be their devotion to protecting the rights of polluters, denying rights to workers or ending abortion.

There’s more than a hint of hypocrisy in the attack on Judge Jackson’s service as a public defender.

Hawley, Cruz, Cotton and Grassley voiced no concerns about two of Trump’s judicial nominees who had worked as public defenders. They all voted for Trump judicial nominee Clifton L. Corker and for Roderick C. Young, though Corker and Young had spent part of their careers as public defenders.

And the two-facedness of claiming to be defenders of “law-and-order” hardly ends there. Think about the Jan. 6 violent attack on the Capitol. Hawley has used the photo of his famous pre-siege fist-pump to the Jan. 6 crowd to fundraise. Ted Cruz walked back his description of the participants in the Capitol siege as “terrorists” after Tucker Carlson criticized him for it. Cotton and Grassley both voted against a bipartisan commission to investigate the violence.

washington post logoWashington Post, Opinion: Ketanji Brown Jackson shows why she was nominated, Jennifer Rubin, March 21, 2022. Much of the first day of the confirmation hearing for Ketanji Brown Jackson, President Biden’s nominee for the Supreme Court, was not about Jackson at all.

Instead, Senate Republicans whined about the treatment of past nominees, going all the way back to Robert H. Bork’s hearing nearly 35 years ago. Have these Republicans forgotten that none of these nominees were denied a hearing, unlike Merrick Garland? Or that six of the nine justices on the court are partisan right-wingers chosen to deliver their preferred legal rulings?

Their histrionics was a sign of how little Republicans have to work with in opposing Jackson. Their accusations were as diverse as they were flimsy: Jackson is a zealot, they said. She is a pick of the radical left. She was a public defender who — gasp! — represented criminals. Sen. Josh Hawley (R-Mo.) repeated his already debunked claims that she is a softy on child porn defendants. Perhaps the lowest point came from Sen. Marsha Blackburn (R-Tenn.), who ranted about everything from masks to transgender children.

The day served as a reminder of how unpleasant, partisan and unenlightening these hearings have become — and of the low quality of senators in attendance compared to their predecessors. It is unimaginable that a Howard Baker of Tennessee or an Alan Simpson of Wyoming would behave like this.

If there was a pleasant surprise, it came in the form of energetic remarks from Thomas Griffith, a well-respected, retired D.C. Circuit Court judge whom George W. Bush appointed. Griffith noted that an appearance by a retired judge nominated by a president of another party should not be so unusual. That his introduction of Jackson seemed abnormal, he said, was a measure of “hyperpartisanship.” He added that judges are not supposed to be “partisans in robes.” Alas, Griffith’s words came at a time when the right-wing majority on the Supreme Court appears to be just that — partisans willing to twist procedural and substantive rules, rewrite statues and rip up decades-old precedents all to the benefit of Republicans.

Griffith gave Jackson his full-throated endorsement: She “is independent and adjudicates based on the facts and the law, and not as a partisan,” he said. “Time and again, she has demonstrated that. ... Her rule is simple: follow the law.”

It was then Jackson’s turn. She thanked God, her glowing family, her friends and her country. She invoked Justice Stephen G. Breyer, for whom she clerked, a not-too-subtle reminder that if the Senate found him acceptable, there should be no reason to oppose her. She gave a nod to Constance Baker Motley, the first African American woman appointed to the federal judiciary. And Jackson reaffirmed her “careful adherence to precedent,” acknowledging her tendency to write long opinions so people know exactly her reasons for deciding a case. (If only the Supreme Court’s right-wing justices felt similarly and stopped abusing the “shadow docket” and issuing orders without written opinions.)

Jackson provided a succinct description of her own view of what it means to be a judge: “I have been a judge for nearly a decade now, and I take that responsibility and my duty to be independent very seriously,” she said. “I decide cases from a neutral posture. I evaluate the facts, and I interpret and apply the law to the facts of the case before me.”

She is so manifestly qualified, so perfectly embodies the American dream and is so blessed with superior judicial temperament that it is obvious why Republicans are struggling. They just can’t seem to find a way to knock down a super-qualified, charming, humble and brilliant Black woman. It seems it does not occur to them that they should stop looking for the limelight (to further their presidential ambitions), ask short and reasonable questions and then vote to confirm on her qualifications. And that tells you everything you need to know about the decline of both the Senate and the Supreme Court.

 

supreme court Custom

ny times logoNew York Times, Supreme Court Live Updates: Confirmation Hearings for Ketanji Brown Jackson Begin, Staff Reports, March 21, 2022 (video). President Biden’s nominee to the Supreme Court is facing the first of four days before the Senate Judiciary Committee. Senators are making opening statements, and Judge Jackson will deliver her own remarks.

The Senate Judiciary Committee on Monday will kick off a historic set of hearings on President Biden’s nominee for the Supreme Court, Ketanji Brown Jackson, who would be the first Black woman to serve there.

The proceedings will introduce Judge Jackson, who currently sits on the influential U.S. Court of Appeals for the District of Columbia Circuit, to much of the country, and give senators a high-profile opportunity to question her on matters of law and policy.

Here’s how it will unfold and what to keep an eye on.

At 11 a.m., the Senate Judiciary Committee is scheduled to begin the hearing, which is to take place in a cavernous room outfitted in white marble and wood paneling near the Capitol. Senators will take turns making opening statements, and Judge Jackson will deliver her own remarks.

The hearings are very likely to end in Judge Jackson’s confirmation; Democrats can confirm her without a single Republican vote if they stay united. But they would like some G.O.P. support, and Monday’s session will signal how aggressively Republicans plan to question her, an early indicator of her chances of winning anyone over. Republicans have conceded it is a sensitive situation, considering that her confirmation is likely and they are loath to be seen as piling on against a woman of color with a gold-plated legal résumé and a reputation as a solid jurist.

March 20

 

President Biden and Vice President Kamala Harris introduce at a White House ceremony Supreme Court nominee Kentaji Brown Jackson, center, a judge on the U.S. District of Columbia Court of Appeals (pool photo, Feb. 25, 2022).

President Biden and Vice President Kamala Harris introduce at a White House ceremony Supreme Court nominee Kentaji Brown Jackson, center, a judge on the U.S. District of Columbia Court of Appeals (pool photo, Feb. 25, 2022).

ny times logoNew York Times, On Eve of Confirmation Hearings, G.O.P. Steps Up Attacks on Jackson, Carl Hulse, March 20, 2022. The White House and Democrats have pushed back against new claims that the Supreme Court nominee Judge Ketanji Brown Jackson was too lenient in some cases.

Republicans are intensifying their attacks on Judge Ketanji Brown Jackson after weeks of publicly reserving judgment on President Biden’s Supreme Court nominee, ahead of historic hearings on the first Black woman to be put forward as a justice.

Republican leaders, wary of engaging in a potentially racially charged spectacle that could prompt a political backlash, have promised a more dignified review of the latest Supreme Court candidate, after a series of bitter clashes over the court. But in recent days, with the approach of the Senate Judiciary Committee’s hearings on her nomination that begin on Monday, their tone has shifted.

Last week, Senator Josh Hawley, a Missouri Republican who sits on the panel and will question Judge Jackson, claimed his review of her judicial record had determined that she had been lenient in sentencing some sex offenders and those convicted of possessing child pornography. He also suggested that, as a member of the United States Sentencing Commission, she worked to reduce penalties for those caught with child pornography. A detailed background paper prepared for the Judiciary Committee made a similar case.

At the same time, Senator Mitch McConnell, Republican of Kentucky and the minority leader, has doubled down on his suggestion that Judge Jackson’s experience as a public defender could influence her view of the law and lead her to favor criminal defendants.

 

supreme court Custom

March 19

washington post logoWashington Post, Analysis: Five questions Ketanji Brown Jackson may face in Supreme Court hearing, Amber Phillips, March 19, 2022. When Judge ketanji brown jackson robeKetanji Brown Jackson appears before senators for her confirmation hearing to be the next Supreme Court justice, she’ll face a number of friendly Democrats — and some firebrand Republicans who are expected to ask her heated questions about race, ethics and her background as a public defender.

But Jackson has lots of recent precedent to avoid answering even the most basic questions. Previous nominees, especially recent ones, made it a practice to constantly dodge questions about what they believe and even long-decided cases. They came under a great deal of criticism from the other party for it, but not enough that it derailed their nominations.

Here are five of the most hot-button questions Jackson is likely to face in her confirmation hearing, and how she might respond — if at all.

March 18

washington post logoWashington Post, Former judiciary workers urge Congress to protect court employees from discrimination and harassment, Ann E. Marimow, March 18, 2022 (print ed.). Former law clerks and other federal judiciary employees shared highly personal stories of workplace harassment and discrimination Thursday, urging Congress to pass legislation that would better protect such workers and ensure an impartial system for reporting misconduct.

Lawmakers from both parties said that, despite efforts by the U.S. courts to overhaul their system, problems persist because the judiciary’s more than 30,000 employees still lack the same legal rights as other government and private-sector workers.

“Judicial branch employees continue to be harassed and discriminated against with little recourse,” Rep. Hank Johnson (D-Ga.) said during the House Judiciary Committee hearing. “Time and time again, representatives of the judiciary have told us that there isn’t a problem, that we should let them handle it themselves.”

Three former federal judiciary employees — a law clerk, public defender and high-level administrative official — told the committee about a workplace culture that has discouraged reporting, describing harassment they had endured and what they said are shortcomings in the process for resolving misconduct claims.

Last year, lawmakers introduced bipartisan legislation to extend to judiciary employees the same anti-discrimination rights afforded to other government employees and to protect whistleblowers. The proposal would create an independent special counsel to investigate workplace complaints and report its findings to Congress and an oversight commission made up of people with experience enforcing civil rights laws.

Roberts says federal judiciary has some issues but doesn’t need congressional intervention

Leaders of the federal judiciary acknowledged their work is not done, but said Thursday that sweeping legislation is unnecessary and inappropriate. The court system, said U.S. District Judge Julie A. Robinson, has already made “significant strides and improvements and has done so expeditiously” by creating new paths for reporting, providing confidential guidance for employees and expanding protections against abusive conduct.

“Some changes don’t occur overnight. This is a continuing effort, and we expect some changes will need time to take root,” said Robinson, a member of an advisory group, which has recommended a long list of changes in judiciary policies.

Robinson and Judge M. Margaret McKeown echoed concerns of Chief Justice John G. Roberts Jr. about Congress interfering with the inner workings of a separate, equal branch of government.

Rep. Darrell Issa (R-Calif.) said he understands the separation-of-powers concerns and the imperative for the judiciary to retain independence.

“Self-rule by a separate branch” of government is “acceptable, but it has to be comparable, accountable and transparent,” he said, adding “we have to hold everyone accountable.”

Laura C. Minor, who worked for the Administrative Office of the U.S. Courts for more than two decades, told lawmakers that the judiciary has long struggled to deal with misconduct. The judiciary’s proposed changes are insufficient, she said, and many complaints are still not reported because people fear retaliation.

“From what I can see today and what we all have heard, the judiciary’s insistence on self-policing only serves its interest in self-protection,” said Minor, who was the equal employment opportunity officer for the court’s administrative office and former secretary of the Judicial Conference, the policymaking body for the federal courts.

March 14

 United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r). (Safe Image)

United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r).

 

Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). 

washington post logoWashington Post, Ginni Thomas, wife of Supreme Court justice, says she attended Jan. 6 ‘Stop the Steal’ rally before Capitol attack, Mariana Alfaro, March 14, 2022. Thomas, the wife of Clarence Thomas, said she left the rally before President Donald Trump took the stage.

Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, for the first time has publicly acknowledged that she participated in the Jan. 6, 2021, “Stop the Steal” rally on the Ellipse that preceded the storming of the Capitol by a pro-Trump mob, raising questions about the impartiality of her husband’s work.

In an interview with the conservative Washington Free Beacon that was published Monday, Thomas, who goes by Ginni, said she was part of the crowd that gathered on the Ellipse that morning to support President Donald Trump. Trump was claiming falsely that widespread voter fraud had delivered the presidency to Democrat Joe Biden — a falsehood he continues to repeat.

Thomas said she was at the rally for a short time, got cold and went home before Trump took the stage at noon that day.

“I was disappointed and frustrated that there was violence that happened following a peaceful gathering of Trump supporters on the Ellipse on Jan. 6,” the conservative activist told the publication. “There are important and legitimate substantive questions about achieving goals like electoral integrity, racial equality, and political accountability that a democratic system like ours needs to be able to discuss and debate rationally in the political square. I fear we are losing that ability.”

A spokeswoman for the Supreme Court did not immediately respond to a request for comment.

In February 2021, Thomas apologized to her husband’s former law clerks after a rift developed among them over her election advocacy of Trump and endorsement of the Jan. 6 rally that led to violence and death at the Capitol.

The attack by a pro-Trump mob trying to stop the confirmation of Biden’s electoral college win left the Capitol vandalized and resulted in the deaths of five people and injuries to 140 members of law enforcement.

“I owe you all an apology. I have likely imposed on you my lifetime passions,” Thomas wrote to a private Thomas Clerk World email list of her husband’s staff over his three decades on the bench.

Ginni Thomas apologizes to husband’s Supreme Court clerks after Capitol riot fallout

As an outspoken activist, Ginni Thomas has drawn scrutiny to her husband’s work on the court and his impartiality, most recently in connection with the Jan. 6 attack and the House select committee tasked with investigating the riot.

While Ginni Thomas’s activism has, in multiple instances, overlapped with cases that have been decided by her husband, her connection to the rally that preceded the insurrection has reignited fury among his critics, who say it illustrates a gaping hole in the court’s rules: Justices essentially decide for themselves whether they have a conflict of interest.

March 5

 

Attorney Gen. William Barr, center, announces his version of the findings of Special Counsel Robert Mueller, flanked by aides Rod Rosenstein and Edward O'Callaghan (C-SPAN photo).

Attorney Gen. William Barr, center, announces his version of the findings of Special Counsel Robert Mueller in 2019, flanked by aides Rod Rosenstein and Edward O'Callaghan, while keeping the text of the Mueller Report largely secret for weeks while news coverage focused on the Barr verbal version, supplemented by his written excerpts (C-SPAN photo).

washington post logojeffrey toobinNew York Times, Book Review: William P. Barr’s Good Donald Trump and Bad Donald Trump, Jeffrey Toobin, right, March 5, 2022

ONE DAMN THING AFTER ANOTHER
Memoirs of an Attorney General
By William P. Barr

It’s a rare Washington memoir that makes you gasp in the very second sentence. Here’s the first sentence from William P. Barr’s One Damn Thing After Another, an account of his two turns as attorney general: “The first day of December 2020, almost a month after the presidential election, was gray and rainy.” Indeed it was. Here’s the second: “That afternoon, the president, struggling to come to terms with the election result, had heard I was at the White House. …” Uh, “struggling to come to terms with”? Not exactly. How about “struggling to overturn the election he just lost” or “struggling to subvert the will of the voters”? Maybe “struggling to undermine American democracy.”

Such opening vignettes serve a venerable purpose in the Washington memoir genre: to show the hero speaking truth to power. Barr had just told a reporter that the Justice Department had “not seen fraud on a scale that could have effected a different outcome in the election.”

This enraged the president. “You must hate Trump,” Trump told Barr. “You would only do this if you hate Trump.” But Barr stood his ground. He repeated that his team had found no fraud in the election results. (This is because there was none.)

By the end of the book, Barr uses the election controversy as a vehicle for a novel interpretation of the Trump presidency: Everything was great until Election Day, 2020. As Barr puts it, “In the final months of his administration, Trump cared only about one thing: himself. Country and principle took second place.” For Barr, it was as if this great president experienced a sudden personality transplant. “After the election,” Barr writes, “he was beyond restraint. He would only listen to a few sycophants who told him what he wanted to hear. Reasoning with him was hopeless.”

The heart of One Damn Thing After Another concerns the earlier days of Trump’s presidency when, apparently, “country and principle” took first place. In his December confrontation with Trump, Barr recalls a comment that may be more revealing than he intends: “‘No, Mr. President, I don’t hate you,’ I said. ‘You know I sacrificed a lot personally to come in to help you when I thought you were being wronged.’”

Robert Mueller (FBI Official Photo)This, as the rest of the book makes clear, is the real reason Barr came out of a comfortable retirement in early 2019 to serve as Jeff Sessions’s successor as attorney general. Barr — who thought Trump was “being wronged” by the investigation into the 2016 election led by Robert S. Mueller III, left, the special counsel — wanted to come to Trump’s defense.

Barr refers to the allegations that Trump colluded with the Russians in the lead-up to the election as, variously, the “Russiagate lunacy,” the “bogus Russiagate scandal,” “the biggest political injustice in our history” and the “Russiagate nonsense” (twice). Barr was as good as his word and sought to undermine Mueller and protect Trump at every opportunity. As Barr reveals in his book, Trump first asked him to serve on his defense team, but Barr later figured he could do more good for the president as attorney general. He was right.

Throughout, Barr affects a quasi-paternal tone when discussing Trump, as if the president were a naughty but good-hearted adolescent. When Trump James Comeysays repeatedly that he fired the F.B.I. director James Comey, right, because of the Russia investigation, Barr spins it as, “Unfortunately, President Trump exacerbated things himself with his clumsy miscues, notably making imprecise comments in an interview with NBC News’s Lester Holt and joking around with the Russian foreign minister and ambassador the day after firing Comey.” The just-joking defense is a favorite for Barr, as it is for the former president. In a strikingly humorless book, there is one “funny” line from Trump: “‘Do you know what the secret is of a really good tweet?’ he asked, looking at each of us one by one. We all looked blank. ‘Just the right amount of crazy,’ he said.” (Rest assured that Barr says the president spoke “playfully.”)

During his confirmation hearing, Barr promised to make Mueller’s report public — and he contrived to do so in the most helpful way for the president. In the key part of the report, concerning possible obstruction of justice by Trump (like firing Comey to interfere with the Russia investigation), Mueller said he was bound by Justice Department policy barring indictments of sitting presidents. So, instead of just releasing the report as he had promised, Barr took it upon himself to decide whether Trump could be charged with obstruction of justice. Barr “cleared the decks to work long into the night and over the weekend, studying the report. I wanted to come to a decision on obstruction.” And then, mirabile dictu, Barr concluded that the president had not violated the law, and wrote a letter to that effect. When the Justice Department got around to releasing the actual report several weeks later, it became apparent that the evidence against Trump was more incriminating than Barr let on, but by that point the attorney general had succeeded in shaping the story to the president’s great advantage.

djt barr conferring headshotsBarr, shown conferring at left with Trump, portrays Mueller, a former colleague and friend from their service in the George H W. Bush administration, as a feeble old man pushed around by liberals on his staff. To thwart them, Barr took extraordinary steps to trash Mueller’s work. On the eve of the sentencing of Roger Stone, Trump’s longtime political adviser, for obstruction of justice, Barr overruled the prosecutors and asked for a lighter sentence: “While he should not be treated any better than others because he was an associate of the president’s, he also should not be treated much worse than others.” In fact, Stone was being sentenced pursuant to guidelines that apply in all cases, but in this one and only instance, Barr decided to intervene.

michael flynn wh podium CustomEven more dramatic was Barr’s intercession on behalf of Michael Flynn, right, who pleaded guilty to lying to the F.B.I. Prodded by Flynn’s attorney, Sidney Powell, who later emerged as a principal conspiracy theorist in the post-2020 election period, Barr not only allowed Flynn to revoke his guilty plea but then dismissed the case altogether. “I concluded that the handling of the Flynn matter by the F.B.I. had been an abuse of power that no responsible A.G. could let stand,” he writes. Suffice it to say that none of the thousands of other cases brought by the Justice Department during Barr’s tenure received this kind of high-level attention and mercy; moreover, it was rare, and perhaps even unprecedented, for the department to dismiss a case in which the defendant pleaded guilty.

The only scalps Barr wanted were of those in the F.B.I. who started the Russia investigation in the first place. He writes, “I started thinking seriously about how best to get to the bottom of the matter that really required investigation: How did the phony Russiagate scandal get going, and why did the F.B.I. leadership handle the matter in such an inexplicable and heavy-handed way?” He appointed a federal prosecutor named John Durham to lead this probe, which has now been going on longer than the Mueller investigation, with little to show for it.

Barr’s odd theory about Good Trump turning into Bad Trump may have more to do with his feelings about Democrats than with the president he served. “I am under no illusion about who is responsible for dividing the country, embittering our politics and weakening and demoralizing our nation,” he writes. “It is the progressive left and their increasingly totalitarian ideals.” In a way, it’s the highest praise Barr can offer Trump: He had the right enemies.

Jeffrey Toobin, the chief legal analyst at CNN, is writing a book about the Oklahoma City bombing.

ny times logoNew York Times, Supreme Court Restores Death Sentence for Boston Marathon Bomber, Adam Liptak, March 5, 2022 (print ed.). The Biden administration, which announced a moratorium on federal executions, has pursued the case against Dzhokhar Tsarnaev, who helped carry out the 2013 bombings.

The Supreme Court on Friday reinstated the death sentence of Dzhokhar Tsaraev HS Tsarnaev, right, who was convicted of helping carry out the 2013 Boston Marathon bombings that killed three and injured hundreds more.

The vote was 6 to 3, with the court’s three liberal members in dissent. The majority sided with the Biden administration in ruling that a federal appeals court had erred in overturning the death sentence a jury had handed down for Mr. Tsarnaev’s role in the bombings.

“Dzhokhar Tsarnaev committed heinous crimes,” Justice Clarence Thomas wrote for the majority. “The Sixth Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one.”

Friday’s ruling cleared the way for Mr. Tsarnaev’s execution, but that is unlikely to happen in the near future in light of a moratorium the Biden administration has imposed on carrying out the federal death penalty.

The bombings, near the finish line of the marathon, transformed a beloved tradition into bloody carnage. The attack left 260 injured, many of them grievously. Seventeen people lost limbs.

tamerlan tsarnaev hsDzhokhar Tsarnaev and his older brother Tamerlan, Justice Thomas wrote, “each brought a backpack containing a homemade pressure-cooker bomb packed with explosives inside a layer of nails, BBs and other metal scraps.”

“Each detonation sent fire and shrapnel in all directions,” Justice Thomas wrote. “The blast from Tamerlan’s bomb shattered Krystle Campbell’s left femur and mutilated her legs. Though bystanders tried to save her, she bled to death on the sidewalk.”

“Dzhokhar’s bomb ripped open the legs of Boston University student Lingzi Lu,” he wrote. “Rescuers tried to stem the bleeding by using a belt as a makeshift tourniquet. She too bled to death.”

A law enforcement officer was killed as the brothers fled a few days later. Tamerlan Tsarnaev died after a shootout with the police during which he was run over by his brother, who was driving a stolen vehicle.

A three-judge panel of the U.S. Court of Appeals for the First Circuit, in Boston, upheld Dzhokhar Tsarnaev’s convictions in 2020 on 27 counts. But the appeals court ruled that his death sentence should be overturned because the trial judge had not questioned jurors closely enough about their exposure to pretrial publicity and had excluded evidence concerning Tamerlan Tsarnaev.

Justice Thomas wrote that the appeals court was wrong on both points.

Judge George A. O’Toole Jr., who presided over the trial, had conducted a detailed and thorough questioning of 256 prospective jurors over three weeks, Justice Thomas wrote, after culling an initial pool of 1,373 jurors using a 100-question form.

Mr. Tsarnaev’s lawyers had asked that jurors be required to detail what they had heard and read in news reports about the bombing. Judge O’Toole rejected the request, calling it unfocused and unmanageable, a ruling that Justice Thomas wrote was “reasonable and well within his discretion.”

“In sum,” Justice Thomas wrote, “the court’s jury selection process was both eminently reasonable and wholly consistent with this court’s precedents.”

The dissenting justices did not quarrel with Justice Thomas’s analysis of Mr. Tsarnaev’s objections to how the jury was selected. The justices diverged, however, on whether evidence concerning Tamerlan Tsarnaev should have been admitted.

March 2

Roll Call, Ketanji Brown Jackson begins historic first steps toward Supreme Court, Todd Ruger, March 2, 2022. Judiciary Committee confirmation hearings are scheduled for week of March 21.

Judge Ketanji Brown Jackson visited with key senators Wednesday, the first of what could be dozens of short face-to-face, get-to-know-you meetings ahead of her confirmation hearing in three weeks.

Senate Judiciary Chairman Richard J. Durbin announced that the hearings will take place the week of March 21, with a traditional schedule of one day for introductions and senator statements, two days for senator questions and one day for outside witnesses.

“As I have said from the time that Justice [Stephen G.] Breyer announced his retirement, the Committee will undertake a fair and timely process to consider Judge Jackson’s nomination,” Durbin wrote in a letter to the committee members.

Durbin was also one of the first four senators with whom Jackson met for about 30 minutes each on her first day in the Capitol on Wednesday as part of the confirmation process. After the meeting, Durbin said there were a handful of Republicans who might vote for her and the confirmation process for her appeals court spot last year, during which the committee looked at her record and asked her questions on the record, meant her hearing for the high court could move forward quickly.

“There’s little mystery as to how she views a case and analyzes it,” Durbin told reporters, since she has written nearly 600 opinions. Ultimately, three Republican senators voted to confirm her to her seat on the U.S. Court of Appeals for the District of Columbia Circuit: Susan Collins of Maine, Lindsey Graham of South Carolina and Lisa Murkowski of Alaska.

Jackson also met with Senate Majority Leader Charles E. Schumer, Minority Leader Mitch McConnell and Sen. Charles E. Grassley of Iowa, the top Republican on the Judiciary Committee, who told reporters that a certain date for the hearing is “not the important thing right now.”

“The important thing is whatever it takes to do the proper vetting, and I can’t put days on that, but there ought to be a chance for any Republican that wants to have a face-to-face meeting to have a face-to-face meeting,” Grassley said. “Now, I don’t know what time that takes, because I don’t know how many people want to do that.”

Grassley said the other 10 Republicans on the committee likely will want face-to-face meetings, but he was going to ask on Wednesday about the rest of the 50-senator GOP conference and what their preferences are.

At the same time, Grassley hinted that the meetings with Supreme Court nominees aren’t too substantive for him.

March 1

washington post logoWashington Post, Supreme Court conservatives seem skeptical of EPA emissions regulation, Robert Barnes, March 1, 2022 (print ed.). Some of the Supreme Court’s conservative justices seemed skeptical Monday that the Environmental Protection Agency can proceed with sweeping regulation of climate-warming emissions from the nation’s power plants without clearer authority from Congress.

Such a finding would be in step with the justices’ worry that federal agencies are exceeding the powers granted to them. But it would be a huge blow for the Biden administration, which has ambitious plans to drastically cut emissions and would like the U.S. power grid to run entirely on clean energy by 2035.

In Monday’s two-hour hearing, Justice Samuel A. Alito Jr. indicated that the ambitious plans of the administration implicated the “major questions” doctrine. That says agencies undertaking such actions must be clearly authorized by Congress, rather than relying on general language in federal law, in this case the Clean Air Act.

washington post logoWashington Post, Supreme Court to review Indian Child Welfare Act, which prioritizes adoptions by Native American parents, tribes, Robert Barnes, March 1, 2022 (print ed.). The Supreme Court will consider the constitutionality of a federal law intended to rectify past abuses of Native American children being removed from their homes and tribes, the justices announced Monday.

The court consolidated four cases about the 1978 Indian Child Welfare Act (ICWA), which prioritizes placement of Indian children with relatives, other Native Americans or a tribe. The act was intended to stop past practices in which hundreds of thousands of Native American children were removed from their homes by adoption agencies and placed with White families or in group settings.

Native Americans say the law is essential to them, and have pledged to defend it.

 

February 2022

Feb. 25-26

 

President Biden and Vice President Kamala Harris introduce at a White House ceremony Supreme Court nominee Kentaji Brown Jackson, center, a judge on the U.S. District of Columbia Court of Appeals (pool photo, Feb. 25, 2022).

President Biden and Vice President Kamala Harris introduce at a White House ceremony Supreme Court nominee Kentaji Brown Jackson, center, a judge on the U.S. District of Columbia Court of Appeals (pool photo, Feb. 25, 2022).

washington post logoWashington Post, Supreme Court Live Updates: Biden touts Jackson’s integrity as he names Supreme Court pick, John Wagner, Mariana Alfaro, Felicia Sonmez and Eugene Scott, Feb. 26, 2022 (print ed.). Jackson, who would be the first Black female justice, says U.S. is ‘greatest beacon’ of democracy.

President Biden on Friday announced his historic pick of federal judge Ketanji Brown Jackson to serve on the Supreme Court, following through on a campaign pledge to nominate the first Black woman to the nation’s highest court in its 223-year history.

During an event at the White House, Biden said Jackson is “someone with extraordinary character” and “will bring to the Supreme Court an independent-minded, uncompromising integrity.” After being introduced, Jackson said the United States is “the greatest beacon of hope and democracy.”

If confirmed, Jackson would replace Justice Stephen G. Breyer, who announced last month that he would retire when the court term ends this summer. Democrats are determined to move swiftly to confirm Jackson, whom Biden elevated last year to the influential U.S. Court of Appeals for the D.C. Circuit.

Here’s what to know

  • Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) has publicly set a goal of confirming Biden’s nominee before the Easter recess, which is scheduled to begin April 8.
  • Although Biden made history with his choice, it will not change the court’s 6-to-3 conservative majority.
  • Biden’s pick comes amid the unusual circumstances of an ongoing invasion of Ukraine by Russia that has dominated the news for several days.
  • Biden interviewed at least two other candidates for the job: J. Michelle Childs, a federal judge in South Carolina, and Leondra Kruger, a justice on the California Supreme Court, according to people familiar with the process.
  • Black activists and women’s groups that banded together to protect Vice President Harris from racist and sexist attacks before and after the 2020 election are remobilizing for the battle over Biden’s nominee.

 

supreme court Custom

washington post logoWashington Post, D.C. Circuit judge would be third African American in Supreme Court history, Tyler Pager, Sean Sullivan, Seung Min Kim and ketanji brown jackson robeAnn E. Marimow, Feb. 26, 2022 (print ed.). U.S. Circuit Court of Appeals Judge Kentaji Brown Jackson, right, would be the first Black woman on the high court, and the first justice since Thurgood Marshall with significant experience as a criminal defense attorney, Robert Barnes and Emily Guskin, Feb. 25, 2022.  

washington post logoWashington Post, What you need to know about Ketanji Brown Jackson, Marc Fisher, Ann E. Marimow and Lori Rozsa, Feb. 26, 2022 (print ed.). How Jackson found a path between confrontation and compromise. Biden’s Supreme Court nominee was a ‘child of the ’70s’ who overcame obstacles by finding middle ground.

washington post logoWashington Post, Analysis: 4 issues to watch in the confirmation fight, Aaron Blake, Feb. 26, 2022 (print ed.). Jackson has been considered the front-runner throughout much of the process. Although the hearings are expected to be contentious, given the stakes and the 50-50 Senate — another finalist, J. Michelle Childs, was the preferred pick for some Republicans — Jackson was confirmed to a federal appeals court just last year, and she has had some bipartisan support.

What to know about Ketanji Brown Jackson

It’s not clear at this point how much resistance Republicans will put up to her nomination, given it won’t change the balance of power on the court and Democrats have the necessary 50 votes.

But it’s worth looking at any potential hurdles she might face. Although both of Jackson’s confirmations — last year and in 2012 to a federal-district court — were relatively amicable, Republicans have isolated a few things that could come up.

Her work on Guantánamo detainee cases. One line of potential attack spanned both her confirmations, but without Republicans going at it too hard: her representation of a Guantánamo Bay detainee, Khi Ali Gul.

washington post logoWashington Post, Inside Biden’s pick of Ketanji Brown Jackson for the Supreme Court, Seung Min Kim, Sean Sullivan and Tyler Pager, Feb. 26, 2022. While the White House sought to portray a deliberative process, few in Washington expected the president to choose anyone other than the appellate court judge.

washington post logoWashington Post, For Black women, this is ‘magic on such a profound level,’ Vanessa Williams and Cleve R. Wootson Jr., Feb. 26, 2022. Three years ago, a photo of 19 African American women — all candidates for judgeships in Harris County, Tex. — went viral. The image seemed to capture the hearts and hopes of Black women across the country.

Judge LaShawn A. Williams, one of the women in that photo, recalled the sisterhood she felt as part of that “Black Girl Magic” campaign. When asked about President Biden’s decision to nominate Ketanji Brown Jackson as the first Black woman nominated to the Supreme Court, she felt something even more powerful, she said.

“This is angelic,” she said. “This is magic on such a profound level.”

Williams, who serves on the county’s civil court, didn’t get to see the ceremony in which Biden introduced Jackson. She was on the bench Friday, presiding over cases. But she described herself as being “over the moon” about the president’s choice to fill his first vacancy on the high court.

“She’s a real sister,” Williams said, noting that Jackson wears her hair in Sisterlocks. “A beautiful Brown sister. So smart, so eloquent … I have been beaming all day.”

If she is confirmed by the Senate, Jackson would become the third Black person and sixth woman to serve on the Court since its 1789 founding. The 51-year-old currently serves on the U.S. Court of Appeals for the D.C. Circuit.

Feb. 25

washington post logoWashington Post, D.C. Circuit judge would be third African American in Supreme Court history, Tyler Pager, Sean Sullivan, Seung Min Kim and ketanji brown jackson robeAnn E. Marimow, Feb. 25, 2022. U.S. Circuit Court of Appeals Judge Kentaji Brown Jackson, right, would be the first Black woman on the high court, and the first justice since Thurgood Marshall with significant experience as a criminal defense attorney, Robert Barnes and Emily Guskin, Feb. 25, 2022.  

washington post logoWashington Post, What you need to know about Ketanji Brown Jackson, Marc Fisher, Ann E. Marimow and Lori Rozsa, Feb. 25, 2022. How Jackson found a path between confrontation and compromise. Biden’s Supreme Court nominee was a ‘child of the ’70s’ who overcame obstacles by finding middle ground.

washington post logoWashington Post, Analysis: 4 issues to watch in the confirmation fight, Aaron Blake, Feb. 25, 2022. Jackson has been considered the front-runner throughout much of the process. Although the hearings are expected to be contentious, given the stakes and the 50-50 Senate — another finalist, J. Michelle Childs, was the preferred pick for some Republicans — Jackson was confirmed to a federal appeals court just last year, and she has had some bipartisan support.

What to know about Ketanji Brown Jackson

It’s not clear at this point how much resistance Republicans will put up to her nomination, given it won’t change the balance of power on the court and Democrats have the necessary 50 votes.

But it’s worth looking at any potential hurdles she might face. Although both of Jackson’s confirmations — last year and in 2012 to a federal-district court — were relatively amicable, Republicans have isolated a few things that could come up.

Her work on Guantánamo detainee cases. One line of potential attack spanned both her confirmations, but without Republicans going at it too hard: her representation of a Guantánamo Bay detainee, Khi Ali Gul.

Feb. 23

 

 United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r). (Safe Image)

United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r).

Proof, Investigation: New Revelations Indicate Ginni Thomas Was a Key Author of Trump’s January 6 Coup Plot, Seth Abramson, left, Feb. 23, seth abramson graphic2022. A recent NYT report explosively updates past reporting at PROOF on Ginni Thomas’s involvement in January 6. The new revelations—taken in sum—position Thomas as a chief author of the insurrection.

Introduction The most comprehensive reporting on Ginni Thomas’s involvement in the January 6 attack on the U.S. Capitol continues to seth abramson proof logobe this exclusive Proof report from January.

However, the New York Times just published a very lengthy feature on the Thomases—Ginni Thomas and her husband, Supreme Court Justice Clarence Thomas—that gave its readers a series of buried ledes about Ginni Thomas and January 6.

It’s unclear why the Times did little to highlight these revelations; all are ensconced deep within an article it takes more than an hour and half to listen to via an audio reading supplied by the newspaper. Whatever the explanation for the odd framing of Ginni Thomas’s role in January 6 by the Times, Proof has decided to update its prior report with a summary of the Times feature that focuses only on the elements of the feature that will matter to federal investigators.

These elements, combined with the January Proof report, confirm that Ginni Thomas was one of the chief architects of the events of January 6, 2021. While it remains unclear whether the House January 6 Committee will now subpoena Ginni Thomas, it is increasingly evident that the Committee is gathering all available data on potential witnesses—including data published in venues like Proof, which the Committee has previously cited in its formal filings.

For this reason, the article below may be of assistance to decision-makers wondering if Ginni Thomas has valuable evidence about the January 6 attack on the Capitol to offer both Congress and the FBI. The short answer: she does. And indeed the evidence curated in the article that follows warrants the immediate issuance of a subpoena to Ginni Thomas for both testimony and documents. It warrants, further, the interrogation of Thomas by agents of the FBI.

Addressing the Elephant in the Room: Clarence Thomas: The New York Times focuses a majority of its article on Ginni Thomas on her husband, Clarence Thomas—a common mistake that Proof warned about at the very beginning of its own feature on Ginni Thomas.

Ginni Thomas’s activities are considerably more newsworthy and influential than her husband’s, deserving coverage exclusive from any consideration of Justice Thomas’s arch-conservative jurisprudence.

Seth Abramson, shown at right, founder of Proof, is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

Feb. 22

ny times logoNew York Times Magazine, The Long Crusade of Clarence and Ginni Thomas, Danny Hakim and Jo Becker, Feb. 22, 2022. The Supreme Court justice and his wife have long battled for a more conservative America. New reporting shows how far Ginni Thomas was willing to go.

The call to action was titled “Election Results and Legal Battles: What Now?” Shared in the days after the 2020 presidential election, it urged the members of an influential if secretive right-wing group to contact legislators in three of the swing states that tipped the balance for Joe Biden — Arizona, Georgia and Pennsylvania. The aim was audacious: Keep President Donald J. Trump in power.

The group, the Council for National Policy, brings together old-school Republican luminaries, Christian conservatives, Tea Party activists and MAGA operatives, with more than 400 members who include leaders of organizations like the Federalist Society, the National Rifle Association and the Family Research Council. Founded in 1981 as a counterweight to liberalism, the group was hailed by President Ronald Reagan as seeking the “return of righteousness, justice and truth” to America.

As Trump insisted, without evidence, that fraud had cheated him of victory, conservative groups rushed to rally behind him. The council stood out, however, not only because of its pedigree but also because one of its newest leaders was Virginia Thomas, the wife of Justice Clarence Thomas and a longtime activist in right-wing circles.

She had taken on a prominent role at the council during the Trump years and by 2019 had joined the nine-member board of C.N.P. Action, an arm of the council organized as a 501(c)4 under a provision of the tax code that allows for direct political advocacy. It was C.N.P. Action that circulated the November “action steps” document, the existence of which has not been previously reported. It instructed members to pressure Republican lawmakers into challenging the election results and appointing alternate slates of electors: “Demand that they not abandon their Constitutional responsibilities during a time such as this.”

Such a plan, if carried out successfully, would have almost certainly landed before the Supreme Court — and Ginni Thomas’s husband. In fact, Trump was already calling for that to happen. In a Dec. 2 speech at the White House, the president falsely claimed that “millions of votes were cast illegally in swing states alone” and said he hoped “the Supreme Court of the United States will see it” and “will do what’s right for our country, because our country cannot live with this kind of an election.”

clarence virginia thomas swearing inThe Thomases (shown at a 1991 swearing in ceremony at the White House) have long posed a unique quandary in Washington. Because Supreme Court justices do not want to be perceived as partisan, they tend to avoid political events and entanglements, and their spouses often keep low profiles. But the Thomases have defied such norms. Since the founding of the nation, no spouse of a sitting Supreme Court justice has been as overt a political activist as Ginni Thomas. In addition to her perch at the Council for National Policy, she founded a group called Groundswell with the support of Stephen K. Bannon, the hard-line nationalist and former Trump adviser. It holds a weekly meeting of influential conservatives, many of whom work directly on issues that have come before the court.

Ginni Thomas insists, in her council biography, that she and her husband operate in “separate professional lanes,” but those lanes in fact merge with notable frequency. For the three decades he has sat on the Supreme Court, they have worked in tandem from the bench and the political trenches to take aim at targets like Roe v. Wade and affirmative action. Together they believe that “America is in a vicious battle for its founding principles,” as Ginni Thomas has put it. Her views, once seen as on the fringe, have come to dominate the Republican Party. And with Trump’s three appointments reshaping the Supreme Court, her husband finds himself at the center of a new conservative majority poised to shake the foundations of settled law. In a nation freighted with division and upheaval, the Thomases have found their moment.

This article draws on hours of recordings and internal documents from groups affiliated with the Thomases; dozens of interviews with the Thomases’ classmates, friends, colleagues and critics, as well as more than a dozen Trump White House aides and supporters and some of Justice Thomas’s former clerks; and an archive of Council for National Policy videos and internal documents provided by an academic researcher in Australia, Brent Allpress.

The reporting uncovered new details on the Thomases’ ascent: how Trump courted Justice Thomas; how Ginni Thomas used that courtship to gain access to the Oval Office, where her insistent policy and personnel suggestions so aggravated aides that one called her a “wrecking ball” while others put together an opposition-research-style report on her that was obtained by The Times; and the extent to which Justice Thomas flouted judicial-ethics guidance by participating in events hosted by conservative organizations with matters before the court. Those organizations showered the couple with accolades and, in at least one case, used their appearances to attract event fees, donations and new members.

New reporting also shows just how blurred the lines between the couple’s interests became during the effort to overturn the 2020 election, which culminated in the rally held at the Ellipse, just outside the White House grounds, aimed at stopping Congress from certifying the state votes that gave Joe Biden his victory. Many of the rally organizers and those advising Trump had connections to the Thomases, but little has been known about what role, if any, Ginni Thomas played, beyond the fact that on the morning of the March to Save America, as the rally was called, she urged her Facebook followers to watch how the day unfolded. “LOVE MAGA people!!!!” she posted before the march turned violent. “GOD BLESS EACH OF YOU STANDING UP or PRAYING!”

But her role went deeper, and beyond C.N.P. Action. Dustin Stockton, an organizer who worked with Women for America First, which held the permit for the Ellipse rally, said he was told that Ginni Thomas played a peacemaking role between feuding factions of rally organizers “so that there wouldn’t be any division around January 6.”

“The way it was presented to me was that Ginni was uniting these different factions around a singular mission on January 6,” said Stockton, who previously worked for Bannon. “That Ginni was involved made sense — she’s pretty neutral, and she doesn’t have a lot of enemies in the movement.”

Ginni Thomas, who turns 65 on April 25, did not respond to requests for comment, and Justice Thomas, who is 73, declined to comment through a court spokesperson.

ny times logoNew York Times, Supreme Court to Hear Case of Web Designer Who Objects to Same-Sex Marriage, Adam Liptak, Feb. 22, 2022. The Supreme Court agreed on Tuesday to hear an appeal from a Colorado web designer who objects to providing services for same-sex marriages, returning the justices to a battleground in the culture wars pitting claims of religious freedom against laws prohibiting discrimination on the basis of sexual orientation.

The court last considered the clash in 2018, when a similar dispute between a Colorado baker and a gay couple failed to yield a definitive ruling.

The precise question the justices agreed to decide in the new case is “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

The court will hear the case, 303 Creative LLC v. Elenis, No. 21-476, in its next term, which starts in October. It concerns Lorie Smith, who owns a website design company that says it serves gay customers but intends to limit its wedding-related services to celebrations of heterosexual unions. Ms. Smith has said she intends to post a message saying the company’s policy is a product of her religious convictions.

The case may settle a question left open in 2018: how to reconcile claims of religious liberty with laws barring discrimination based on sexual orientation.

Feb. 18

washington post logoWashington Post, Opinion: We now see stark evidence of Trump’s toxic judicial legacy, Ruth Marcus, right, Feb. 18, 2022. Another Trump judge ruth marcushas struck, in another bid to defang the Voting Rights Act. This decision wouldn’t ordinarily merit much notice — it’s a single opinion by a district court judge. But it offers stark evidence of Donald Trump’s toxic judicial legacy, illustrates how conservative justices invite legal mischief to bubble up from the lower courts, and threatens what remains of one of the country’s proudest legislative achievements.

The ruling came Thursday from U.S. District Judge Lee Rudofsky of Little Rock, a Harvard Law School graduate, Federalist Society member (of course) and former Arkansas solicitor general. Rudofsky found that Section 2 of the Voting Rights Act, which protects minority voters against unfair redistricting or other voting practices that have discriminatory effects, can only be enforced by the Justice Department. No civil rights groups, no individual voters need apply — I mean, are entitled to file suit.

This radical interpretation flies in the face of the history, purpose and longtime interpretation of the Voting Rights Act; it ignores congressional lee rudofskyintent and long-standing Supreme Court rulings. And, if it were to stand, it would all but guarantee that the protections of the Voting Rights Act would be meaningless whenever there is a Republican in the White House.

No judge has ever — ever — thrown out a Section 2 claim on the grounds that the law barred suits by private plaintiffs. Even Arkansas, whose newly redrawn state legislative district lines were at issue in the case before Rudofsky, left, didn’t make this argument. Rudofsky raised it on his own — and said he would toss the case unless the Justice Department decided to join it in the next five days.

This is part of an ugly pattern that has left the Voting Rights Act in tatters. In 2013’s Shelby County v. Holder, the Supreme Court’s conservative majority eviscerated Section 5 of the law, which required certain states to obtain advance approval for voting changes. That pretty much just left Section 2, which allows lawsuits after changes are enacted.

But last year, in an Arizona case, Brnovich v. Democratic National Committee, the high court engaged in a wholesale rewriting of Section 2 that drained it of effectiveness in cases involving voting rules and procedures. Just last week, intervening in an Alabama redistricting case, the court signaled new hostility to using Section 2 to challenge district lines that reduce the ability of minority voters to elect candidates of their choice.

Rudofsky’s ruling is a direct outgrowth of Brnovich. The majority opinion was so egregious — it “mostly inhabits a law-free zone,” Justice Elena Kagan wrote in dissent — that hardly anyone paid attention to a concurring opinion by Justices Neil M. Gorsuch and Clarence Thomas that said it was “an open question” whether private parties could sue under Section 2.

As I’ve written before, the Gorsuch-Thomas concurrence was an especially dishonest piece of work. To buttress their bias against private suits, Gorsuch and Thomas cited a single appeals court case from 1981 that simply mentioned the issue. For decades, before and after a congressional rewrite of the law in 1982, the existence of a private right of action was assumed; Brnovich, which itself involved a lawsuit by a private party, cited nine other such cases. The question wasn’t ajar — not until Gorsuch and Thomas cracked it open.

Their gambit worked. When civil rights groups challenged Texas’s new voting law under Section 2, the state took up the Gorsuch-Thomas offer and argued that the plaintiffs didn’t have any right to sue. Texas lost, with the judge writing in December that “it would be ambitious indeed for a district court ... to deny a private right of action in the light of precedent and history.”

Not too ambitious for Rudofsky, who proclaimed he was just doing his job, even if it led to unfortunate results.

Why does all this matter? Because Rudofsky might be just the start. Because the federal government has limited resources to bring these voting rights cases and, under Republican administrations, demonstrably limited interest in doing so. And because, as Kagan put it last week, “a law this Court once knew to buttress all of American democracy” is increasingly being whittled into insignificance by activist judges who claim they are simply following the law, even as they strain to neuter it.

washington post logoWashington Post, Opinion: Republicans’ buffoonish, disingenuous attacks on an Innocence Project attorney, Radley Balko, right, Feb. 18, 2022. radley balko catoThis week, Republicans on the Senate Judiciary Committee lined up to pummel Innocence Project attorney Nina Morrison, President Biden’s nominee for the U.S. District Court for the Eastern District of New York. Morrison has helped free about 30 innocent people from prison in her career and would bring desperately needed balance to a federal judiciary loaded with ex-prosecutors.

Rather than recognize her qualifications, Republican after Republican beclowned themselves with misleading attacks and self-serving theater.

Start with Sen. Josh Hawley (R-Mo.), who solemnly told Morrison, left, “I will oppose you and anyone else the administration sends to us who nina morrisondo not understand the necessity of the rule of law.” Hawley’s emphasis on “the rule of law” was interesting, given that at that very moment, his campaign was hawking trinkets emblazoned with the senator’s fist-pumping efforts to overturn the 2020 election.

Sen. Mike Lee (R-Utah) criticized an op-ed Morrison wrote for the New York Times about prosecutor misconduct, because Morrison didn’t emphasize that such misconduct is rare. But misconduct is documented only in a small percentage of cases. That’s likely because there’s little incentive for anyone — including defense attorneys — to report it. And Morrison’s essay criticized the fact that even when prosecutorial misconduct is reported and proved, the offending prosecutors are rarely punished. That’s the surest sign of a broken system.

If these Republicans truly cared about the rule of law, they would be heaping praise on attorneys such as Morrison. As with any other institution, we improve the criminal justice system by exposing and correcting its flaws, not by pretending those flaws don’t exist.

The policies people such as like Morrison recommend to uproot the causes of wrongful convictions — such as stronger rules ensuring prosecutors share all evidence with the defense, tighter controls on cognitive bias in forensics and restrictions on testimony from jailhouse informants — can also help apprehend and convict the real perpetrators before they strike again. When police and prosecutors can’t use quack experts and jailhouse snitches to confirm shaky theories — when they’re forced to remain open-minded to all possible suspects — they’re more likely to follow the evidence.

According to a 2021 Cato Institute study, former prosecutors and government attorneys outnumber former defense and civil rights attorneys on the federal bench by about seven to one. There hasn’t been anyone on the Supreme Court with significant criminal defense experience in 30 years. The Biden administration deserves praise, not scorn, for addressing that imbalance.

For senators such as Cruz, Cotton, Lee and Hawley, however, this is all mere sport. It really doesn’t matter that they’re wrong on the facts, or that they’ve mischaracterized Morrison’s career. For them, this is about sowing fear and anger to position themselves for the midterms and later runs for office.

But the people Morrison freed from prison have little time for politics as sport. Time is what was taken from them. Her nomination to the federal bench is validation that their suffering mattered — that should some wrongly convicted prisoner try to raise an innocence claim in the future, there would be at least one more voice on the federal bench willing to take them seriously. And it’s infuriating to watch these senators make a mockery of it all.

Feb. 13

Steady, Opinion: Precedent Be Damned, Dan Rather, right (author, commentator and former CBS Nightly News Anchor and Managing Editor), and dan rather 2017Elliot Kirschner, Feb. 13, 2022. Of all the challenges to American democracy we currently face, one that hasn’t gotten enough attention is the United States Supreme Court.

To be sure, the Court is on the political radar. But a lot of the coverage and awareness focuses on the impact of individual rulings (or expected rulings) that upend the current status of the law on such issues as voting rights, affirmative action, abortion, and the ability of the federal government to regulate areas like the environment. Another line of coverage deals with the justices themselves, and trying to tease apart their whims and states of mind to handicap how they might rule.

All of this is important. But these are but individual tiles in a much larger mosaic -- a mosaic I hope the national press will spend more time piecing together. What is required is to step back and see the big picture. And what one sees is deeply disturbing.

Instead of reasoned argumentation, we see snap judgments. Instead of deliberation we see grandstanding. Instead of humility we see a cocky disregard for precedent. The legitimacy of the Supreme Court is wavering -- some might argue it has already been debased. And with it, the larger legal system quakes with uncertainty.

The latest outrage came this past week when the Court stayed a unanimous ruling by a three-judge district court panel which said that Alabama’s new congressional map violated the Voting Rights Act by denying fair representation for Black Alabamians. The immediate effect of this is that Black residents, who make up 27 percent of the state’s population, will only be the majority in one of seven districts in the 2022 elections (and likely thereafter). More generally, it means the Voting Rights Act has been dealt another grave blow.

It should be noted that two of the three judges who ruled in the matter at the district court had been appointed by President Trump -- so not exactly bleeding heart liberals. And their ruling striking down the Alabama map was not considered particularly controversial because, as many legal analysts noted, what the state did was as clear a violation of the law and of precedent as you are likely to find. Five justices on the highest court didn’t care.

As someone who has covered Alabama and the plight of civil rights there since the 1960s, I can tell you that the long history of repression and discrimination in a state whose nickname is the “Heart of Dixie” is a secret to no one. And while it is tempting to see these kinds of cases in terms of their sweeping import, we cannot forget the individuals on the ground in what was known as the Black Belt are being denied fair representation of their needs in Congress. This is exactly what the Voting Rights Act of 1965 was supposed to protect against.

For all of those who would argue that the protections of that landmark legislation are no longer needed, we can find ample evidence to the contrary in the rising divisive racial animus plaguing our country. Furthermore, the ongoing fight over access to the polls, and for representation in Congress, shows that the battle for the ballot box remains far from settled.

It is tempting to contextualize the Supreme Court’s ruling as nothing more than a political calculation. But it is hard to tell, because the Court’s majority didn’t even issue a formal decision. This was due once again to the justices’ use of the so-called “shadow docket.” Rather than the methods by which Supreme Court cases, especially ones that overturn longterm precedent, are supposed to be decided -- briefings, oral arguments, deliberations -- this was an emergency measure, a stay of a lower court’s ruling, that essentially eviscerated one of the seminal pieces of American legislation.

With today's decision, the Supreme Court's five far-right justices have effectively rewritten the Voting Rights Act, obliterating its vital protections against racial gerrymandering—and doing it through the shadow docket.

And here is where the full picture starts to come into view. This was always the hope of Mitch McConnell and the Federalist Society, which fought to fill the ranks of the U.S. Judiciary with hard-right true believers. They understood that even if they lost the other levers of federal power, Congress and the presidency, they could still shape the law of the land by owning the courts. In so doing, as we are seeing, their judges (I hesitate to call them conservative, because there is nothing conservative in their approach) could nullify the products of the democratic process in ways that promote their interests.

In light of the political valence which hangs heavily over our current age, it is possible to infer that what happened in the Alabama case was “Republican justices” wanting to make sure the Democrats didn’t get another seat in the House of Representatives. Whether that is fair or not to the justices in the majority we have no way of knowing. And that is exactly the problem. We don’t know, because there was no argumentation and no attempt to tether their decision to the law. So suspicion hangs over the entire enterprise.

It is the job of the press to explain both the actions and the stakes. And it is the responsibility of American voters to decide whether this is how they want their nation’s business to be conducted.

Feb. 12

washington post logoWashington Post, Opinion: Once again, the Supreme Court shows whose rights it protects, Ruth Marcus, right, Feb. 12, 2022. Whose rights matter? As ruth marcusthe Supreme Court grapples with when to intervene in an ongoing case and when to hold back, it slings around a lot of impartial-sounding legal jargon: “likelihood of success on the merits,” “balance of equities,” “irreparable harm.” But the fundamental question boils down to the justices’ conflicting visions of whose rights they deem worthy of protection — and whose they are willing to see violated.

Time after time, in case after case, from capital punishment to voting, from pandemic restrictions to abortion, the conservative justices’ priorities manifest themselves. They leap to act on behalf of state officials who might be inconvenienced by having to wait for a full ruling; they are similarly solicitous of religious individuals who claim that their constitutional protections are being infringed. Meanwhile, inmates facing execution, women seeking abortions, minority voters challenging voting restrictions — their arguments for urgent intervention are routinely discounted and rejected.

This judicial double standard was once again on flagrant display Monday as the court, splitting 5 to 4, intervened in an Alabama redistricting case. African Americans, who account for 27 percent of Alabama residents, constitute a majority in just one of its seven congressional districts.

The justices agreed to review that ruling — fair enough. But in the meantime, the conservative majority stepped in to put on hold the lower court’s order that the state draw a new map, in time for the midterm elections, including a second majority-Black district.

Whose rights matter? In this case, the conservative majority airily privileged the convenience of state legislators over the ability of Black voters to secure fair representation — all while pretending it was simply following the rules rather than putting a heavy thumb on the scale for one side.

“Pretending” might overstate matters, since the majority did not explain its action. That was left to a concurrence from Justice Brett M. Kavanaugh. Joined by Justice Samuel A. Alito Jr., Kavanaugh insisted that blocking the lower-court order was a simple matter of maintaining regular judicial process, letting the case be decided after full briefing and argument. He invoked what he described as a “bedrock tenet of election law” — that courts shouldn’t “swoop in and re-do a State’s election laws in the period close to an election.”

Except that Alabama’s primary isn’t until late May. Absentee voting will start on March 30 — but that leaves plenty of time for the legislature to redraw a few districts. It took just five days to produce the new map. “Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others,” Kavanaugh lamented.

What’s missing here is any expression — any hint — of concern for the countervailing rights of Black voters. Inconvenience to state officials who have to scramble to redraw maps or candidates who aren’t sure about the contours of their districts? Huge. Infringement on the ability of Black residents to have their political voices fully heard? Not so much.

When it comes to this Supreme Court, some rights are more equal than others. Some state officials deserve deference and accommodation; others are subject to judicial second-guessing. This is two-tier justice, as sloppily reasoned as it is unfairly dispensed.

Feb. 11

 

djt hands open amazon safe

Press Run, Commentary: How Trump gets away with shredding everything, Eric Boehlert, right, Feb. 11, 2022. The consummate bully. We just witnessed eric.boehlertanother textbook example this week of how Trump gets away with bending rules in his favor, and without having to pay a price from the press or the Beltway establishment.

It’s maddening to watch and it highlights just how unprepared D.C. institutions still are in terms of dealing with an unapologetic authoritarian like Trump who, through his entire adult life, has always assumed rules do not apply to him. And they clearly do not.

The media continue to normalize his criminality, in this case absconding from the White House with classified documents as he readies another presidential run. (And shredding other docs.) It’s the same D.C. press corps that crucified Hillary Clinton for years simply because journalists thought her email story might have a hint of criminality to it. It never did.

What Trump has done since he first arrived in Washington, D.C., in January 2017 was shred longstanding Beltway protocols; traditions that for decades and sometimes centuries were based on a ‘gentleman’s agreement’ on the proper way to behave and the ethical course that should be followed while running the government. The consummate bully and liar, Trump didn’t care about any of those rules and began obliterating them immediately. He flooded the zone with crass, outlandish and destructive behavior, which the press tried to keep pace with the first. Shattering Beltway protocols used to carry a penalty, which was handed out by the press.

Eventually, as the years passed, news outlets mostly gave up, especially with the day-to-day transgressions, adopting a Trump-being-Trump view of his chronic rule breaking. Beltway institutions, particularly within the federal government, embraced the same mealy-mouthed approach, which gave Trump the okay to trample norms. “He didn’t think the rules applied to him,” a former White House aide told CNN this week. And he was right.

That’s why he packed up 15 boxes of presidential documents, some of them marked “top secret,” and shipped them off to Mar-a-lago, even though all the contents should have been sent to the National Archives, because the Presidential Records Act requires that all records created by presidents be turned over at the end of their administrations. Previously, Trump spent years destroying presidential documents, which is not allowed by law.

The whole story revolved around “the Trump administration flagrantly violating federal law by removing and destroying protected federal records,” as Media Matters noted. But that’s not how it got played in the press this week.

The Washington Post, which broke the 15-boxes story on Monday, politely carried spin from unnamed Trump advisers saying there had been no “nefarious intent” in keeping the batch of documents, some of which the January 6 committee want as part of its insurrection investigation. Instead, there had been a “frenzied packing process” in the wake of Trump’s defeat, the Post explained.

The newspaper actually granted anonymity to a “former Trump White House official,” so he or she could be quoted as saying that Trump packing up the 15 boxes was just an honest mistake by a man who would never consider breaking the rules — the same Trump who told more than 20,000 lies while in office.

Following up the Post’s credulous reporting, the New York Times managed to be equally obsequious, as it typed up the same spin from the same former Trump officials. Shorter Times: Nothing to see here folks, it was all just a misunderstanding.

Feb. 10

ny times logoNew York Times, Guest Essay: The Supreme Court Has Crossed the Rubicon, Linda Greenhouse, Feb. 10, 2022 (print ed.). Ms. Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 through 2021.

You know the Rubicon has been crossed when the Supreme Court issues a conservative voting rights order so at odds with settled precedent and without any sense of the moment that Chief Justice John Roberts feels constrained to dissent.

This is the same John Roberts who in 1982, as a young lawyer in the administration of President Ronald Reagan, fought a crucial amendment to the Voting Rights Act of 1965; whose majority opinion in 2013 gutted one-half of the Voting Rights Act and who joined an ahistoric opinion last summer that took aim at the other half; and who famously complained in dissent from a 2006 decision in favor of Latino voters in South Texas that “it is a sordid business, this divvying us up by race.”

Yes, that Chief Justice Roberts. What the 5-to-4 majority did was that far out of line.

The unsigned order that drew the chief justice’s dissent Monday night blocked the decision by a special three-judge Federal District Court ordering the Alabama Legislature to draw a second congressional district in which Black residents constitute a majority. Alabama’s population is 27 percent Black. The state has seven congressional districts. The lower court held that by packing some Black voters into one district and spreading others out over three other districts, the state diluted the Black vote in violation of the Voting Rights Act.

The Supreme Court will hear Alabama’s appeal of the district court order in its next term, so the stay it granted will mean that the 2022 elections will take place with district lines that the lower court unanimously, with two of the three judges appointed by President Donald Trump, found to be illegal.

Chief Justice Roberts objected that the ordinary standards under which the Supreme Court grants a stay of a lower court opinion had not been met. “The district court properly applied existing law in an extensive opinion with no apparent errors for our correction,” he wrote. Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, also dissented in a more extensive opinion that accused the majority of using the court’s emergency “shadow docket” not only to intervene improperly on behalf of the state but also to change voting rights law in the process.

This is no mere squabble over procedure. What happened Monday night was a raw power play by a runaway majority that seems to recognize no stopping point.

Linda Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008. She is the author of “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.”

ny times logoNew York Times, A Product of Public Universities, Michelle Childs Would Be an Unconventional Court Pick, Erica L. Green and Rick Rojas, Feb. 10, 2022 (print ed.). The judge is seen by some as a long shot for the Supreme Court, but supporters say her bipartisan backing and the appeal of her humble ascent should not be overlooked.

It was just before Christmas, and Jean H. Toal, then the chief justice of the South Carolina Supreme Court, was in a bind. She needed an emergency order drawn up, but the courthouse in Columbia, the state capital, was empty. She was relieved to reach someone who assured her, “Chief, I got it.”

It was J. Michelle Childs, then a state circuit court judge who had made a name for herself as one of the most adept on the bench.

The memory sums up the reputation of Judge Childs, now a Federal District Court judge in South Carolina, who rose through the ranks of state schools, local government and the South Carolina legal system to the short list of potential Supreme Court nominees for President Biden, who has pledged to nominate a Black woman to replace Justice Stephen G. Breyer.

The 55-year-old judge, who has served on the federal bench since 2010, is seen in elite circles as a long shot compared with other Black female candidates whose high-profile connections and Ivy League pedigrees fit the mold of a traditional Supreme Court appointee. But Judge Childs’s powerful champions in Congress — particularly Representative James E. Clyburn, the South Carolina Democrat who is widely credited with saving Mr. Biden’s presidential candidacy — and the broad appeal of her humble ascent could make her a formidable contender.

“If you make assumptions about South Carolina, and a certain type of a judge and a non-Ivy League education, you won’t know what you’re missing in Michelle Childs — she is brilliant,” said Judge Toal, who would often tap Judge Childs to serve in an acting capacity on the state’s high court.

People who have known Judge Childs for decades, personally and professionally, struggle to assign her a political ideology. Many describe a pragmatic approach to her rulings, which they say she issues after intense preparation and deliberation.

“I could have as easily seen Judge Childs be nominated by a Republican than as a Democrat,” said William C. Hubbard, the dean of the University of South Carolina School of Law, who first met Judge Childs when she was a law student there. “I think that is a reflection of how people view her, not as an ideologue but a fair judge.”

On Wednesday, Jen Psaki, the White House press secretary, said Mr. Biden was seeking advice from a range of elected and nonelected officials, and approaching the nomination process in “a bipartisan manner.”

washington post logoWashington Post, Opinion: For Republicans, being ‘qualified’ has nothing to do with merit, Jennifer Rubin, right, Feb. 10, 2022. Republicans, if nothing else, are jennifer rubin new headshotconsistent when it comes to considering women of color for political appointments. They have expressed indignation toward President Biden’s pledge to appoint a Black woman to the Supreme Court. It’s affirmative action, they say. It’s “insulting.” She will be a “lesser Black woman,” as one conservative academic put it.

The assertion that women of color are radical and hence unqualified has been echoing through the Senate halls for more than a year now.

Shortly after Biden took office, Republicans declared Neera Tanden, an Indian American woman nominated to lead the Office of Management and Budget, unfit for the position because of acerbic tweets. Then, Kristen Clarke, Biden’s choice to head the Justice Department’s civil rights division, came under baseless attacks that she was racist and anti-Semitic. Meanwhile, Vanita Gupta, chosen by Biden for the No. 3 position at the Justice Department, was accused of being anti-police despite endorsements from many law enforcement groups.

Now, Senate Minority Leader Mitch McConnell (R-Ky.), who delighted in rubber-stamping judges from a list curated by the Federalist Society during the Trump administration, is warning the president not to “outsource” his selection “to the radical left.” Apparently, a pick that passes muster with civil rights groups will be suspect.

It is commonplace for Republicans to tag women of color as extreme, radical, angry and hyperpartisan. When it comes to their own nominees, it is not as if they have a strong record of choosing sober-minded, restrained and respectful nominees. Justice Brett M. Kavanaugh couldn’t get through his confirmation hearings without smearing senators and screaming about a plot against him.

washington post logoWashington Post, Black female lawmakers warn against fighting over Supreme Court pick, Marianna Sotomayor, Feb. 10, 2022. They want to make sure the eventual nominee is not tainted by pitting candidates against each other ahead of expected GOP attacks.

Black female lawmakers are elated that President Biden will soon nominate the first Black woman to sit on the Supreme Court.

But there are concerns that the early jockeying over whom he should choose will pit potential nominees against each other at a time when the party should be focused on celebrating a historic moment.

“I just don’t think it’s our place to pit Black women against each other in trying to get this spot. No,” Rep. Cori Bush (D-Mo.) told reporters Tuesday when asked if the Congressional Black Caucus is uniting around any potential nominees. “Let’s push all of them up there. And whoever has all the things that’s needed to get this job done, the qualifications, the experience, the will — they got to have the will to do this because it’s going to be tough — let’s let that person rise.”

Labor groups wary of potential Supreme Court pick backed by top House Democrat

The issue has arisen, in part, because of aggressive public lobbying by House Majority Whip James E. Clyburn (D-S.C.), the highest-ranking Black member of Congress, who is calling on Biden to nominate his preferred pick — U.S. District Judge J. Michelle Childs of South Carolina. That, in turn, has led labor groups to push against her candidacy, pointing to her time working on behalf of employers against worker claims while in private practice.

Among the other potential nominees mentioned most often are Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit and Leondra Kruger, a California Supreme Court justice, both of whom have their own advocates looking to boost their chances.

Several Black female lawmakers interviewed for this article did not criticize Clyburn for his advocacy for Childs, noting he has been promoting her for judgeships for years by making the case she is well respected in his home state and that her background, including being educated at state schools, would give the federal judiciary a needed and different perspective.

But they made clear it is not an approach they plan to take.

“We don’t see any reason to chime up, certainly not before [Biden] comes forward with a nominee considering how many are so, not only qualified, but overqualified. So we have not taken a position yet,” said Del. Eleanor Holmes Norton (D-D.C.), who heads the Congressional Black Caucus’s judicial nominations task force.

Feb. 9

 

leondra kruger

washington post logoWashington Post, Potential Supreme Court nominee faces questions on religious rights case, Robert Barnes, Feb. 9, 2022. Leondra R. Kruger, above, argued 12 cases at the Supreme Court, representing the United States in both Republican and Democratic administrations, and one of them is receiving special scrutiny as President Biden decides whether to nominate her to the bench.

The Supreme Court’s 2012 decision in Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission was a unanimous loss for the Obama administration and a landmark win for religious organizations. The justices for the first time agreed with lower courts and the organizations that the Constitution provides a “ministerial exception” that shields churches and other religious groups from anti-discrimination laws in certain hiring and firing decisions.

Kruger, then a lawyer in the solicitor general’s office and now a justice on the California Supreme Court, failed to win even the vote of her recent boss — Justice Elena Kagan, who was confirmed to the court in 2010 after serving as President Barack Obama’s solicitor general. Kagan termed the government’s argument “amazing,” and not in a good way.

Kruger, 45, is on Biden’s shortlist to replace retiring Justice Stephen G. Breyer, and conservative groups are promoting Kruger’s role in the case as evidence she might not protect religious rights as a Supreme Court justice. Defenders say she was simply a lawyer arguing a case for a client, the messenger for an administration position that found no favor on the court.

If nominated, the Senate will want to know “whether this was her position, or was she simply arguing a position that the solicitor general or possibly EEOC had given her,” said Michael W. McConnell, director of the Stanford Constitutional Law Center. “Having been in that office, I know from experience it could be either way.”

Donald B. Verrilli Jr., the solicitor general at the time and Kruger’s former boss, said it is the latter.

 

Trump Attorneys Rudy Giuliani and Jenna Ellis raising claims of 2020 election fraud at a hearing in Michigan in December 2020.

Trump Attorneys Rudy Giuliani and Jenna Ellis raising claims of 2020 election fraud at a hearing in Michigan in December 2020.

washington post logoWashington Post, Investigation: Mich. prosecutor says Giuliani asked him to hand over voting machines, Jon Swaine, Emma Brown and Jacqueline Alemany, Feb. 9, 2022. A Washington Post examination found that a phone call between President Donald Trump’s legal team and Antrim County prosecutor James Rossiter was part of a behind-the-scenes intervention that helped twist a mistake in the county’s reporting of election results into supposed proof of a vast conspiracy.

In the weeks after the 2020 election, Rudolph W. Giuliani and other legal advisers to President Donald Trump asked a Republican prosecutor in northern Michigan to get his county’s voting machines and pass them to Trump’s team, the prosecutor told The Washington Post.

michigan mapAntrim County prosecutor James Rossiter said in an interview that Giuliani and several colleagues made the request during a telephone call after the county initially misreported its election results. The inaccurate tallies meant that Joe Biden appeared to have beaten Trump by 3,000 votes in a Republican stronghold, an error that soon placed Antrim at the center of false claims by Trump that the election had been stolen.

Rossiter said he declined. “I said, ‘I can’t just say: give them here.’ We don’t have that magical power to just demand things as prosecutors. You need probable cause.” Even if he had had sufficient grounds to take the machines as evidence, Rossiter said, he could not have released them to outsiders or a party with an interest in the matter.

Legal scholars said it was unusual and inappropriate for a president’s representatives to make such a request of a local prosecutor. “I never expected in my life I’d get a call like this,” Rossiter said.

Giuliani declined to comment in response to questions from The Post, his attorney said.

Giuliani’s team called Rossiter around Nov. 20, 2020, Rossiter said, as it worked to overturn Trump’s defeat to Biden. The direct appeal to a local law enforcement official was part of a broader effort by Trump’s allies to access voting machines in an attempt to prove that the election had been stolen. That effort extended to a recently disclosed draft executive order for Trump’s signature to have National Guard troops seize machines across the nation.

washington post logoWashington Post, Covid deaths highest in a year as omicron hits unvaccinated and elderly, Fenit Nirappil and Dan Keating, Feb. 9, 2022 (print ed.). Omicron has been particularly lethal to people over 75, the unvaccinated and the medically vulnerable, according to doctors and public health officials.

Though considered milder than other coronavirus variants, omicron has infected so many people that it has driven the number of daily deaths beyond where it was last spring, before vaccines were widely available, according to Washington Post data.

Omicron has been particularly lethal to people over 75, the unvaccinated and the medically vulnerable, according to doctors and public health officials. The soaring death toll also illustrates why experts pleaded with the public to beware of the highly contagious variant even though it is less virulent than others.

“That feels quite jarring to people who may have assumed omicron is generally on a per-case level less severe and given the fact we have vaccinated at least some portion of the country,” said Jennifer Nuzzo, an epidemiologist at the Johns Hopkins Bloomberg School of Public Health. “Even if on a per-case basis fewer people develop severe illness and die, when you apply a small percentage to a very large number, you get a substantial number.”

Yet the seven-day average of deaths during the omicron surge has reached 2,600 in recent days, climbing past the late September peak of about 2,000 average daily fatalities during the surge of the more dangerous delta variant, according to Post tracking. The ranks of hospitalized patients with covid-19 reached record highs in January. Coronavirus deaths lag hospitalizations.

 

Trump counsel Rudy Giuliani leads a news conference at Republican National Committee headquarters in Washington, DC on Nov. 19, 2020.

Trump counsel Rudy Giuliani leads a news conference at Republican National Committee headquarters in Washington, DC on Nov. 19, 2020. At left above is attorney Sidney Powell, whom the Trump White House announced earlier in November as one of its lawyers before firing.

washington post logoWashington Post, Analysis: Sidney Powell: ‘Perhaps’ the Kraken wasn’t real after all, Aaron Blake, Feb. 9, 2022 (print ed.). The Kraken is still backtrackin.’

The many dubious and false claims of voter fraud and irregularities made by lawyers aligned with Donald Trump after the 2020 election have forced something of a legal reckoning — a legal reckoning that continues apace. And perhaps nobody exemplifies that like former Trump lawyer Sidney Powell, who has now been forced on multiple occasions to acknowledge that the Kraken wasn’t what it was cracked up to be.

During the period between Election Day and Joe Biden’s win being finalized, Powell made all manner of claims about massive voter fraud. Not only that, she said she had proof — proof that was always seemingly right around the corner.

“President Trump won by a landslide,” she said at that infamous November 2020 news conference at the Republican National Committee. “We are going to prove it.”

“I’m going to release the Kraken,” she said around the same time.

Since then, though, Powell has found herself vulnerable to both financial penalties (being sued by voting machine companies Smartmatic and Dominion) and legal penalties, possibly including disbarment. And she has offered a very different take on the evidence she had.

In response to the voting-machine lawsuit, Powell’s legal team in March argued that “reasonable people would not accept such statements as fact” but, rather, merely as claims to be evaluated in court. She said she was merely serving as an advocate for Trump. She even said that her legal opponents calling her claims “wild accusations” and “outlandish” only reinforced that the claims were not to be taken at face value.

Now, Powell has filed another such document, in response to an effort to sanction her professionally, which a federal judge moved along last summer in a scathing ruling. And again, the big takeaway is that she’s backing off.

The big line, as first spotlighted by Adam Klasfeld, is when Powell and another Trump-aligned lawyer say the claims made were only “perhaps” true — but that they were legitimate because lots of people believed them.

“Millions of Americans believe the central contentions of the complaint to be true,” the filing says, “and perhaps they are.”

The filing also notes that “dozens of laws have been enacted by state legislatures in response to concerns similar to those raised in the complaint.”

That latter statement is most certainly true. But, as with the GOP push for rewriting such election laws, there’s a bit of a chicken-and-egg question. Republicans have indeed often justified those new laws by pointing to the perception of voter fraud and other irregularities, rather than actual proof. But that perception itself owes in large part to the efforts of Powell and her ilk. Polls suggest such claims caught on with a majority of Republicans despite the utter lack of substantiation or wins in court.

 

guy wesley reffitt via FBI 1

ny times logoNew York Times, Government Reveals Trove of Evidence in First Jan. 6 Trial, Alan Feuer, Feb. 9, 2022 (print ed.). With a Texas man set to go on trial this month, prosecutors released a detailed list of their witnesses and evidence, including testimony from the defendant’s two teenage children.

Prosecutors have provided a revealing glimpse of their strategy for the first trial stemming from the attack on the Capitol, unveiling an inventory of the extensive evidence they intend to introduce, including surveillance videos, police communications, text messages, geolocation data and testimony from a Secret Service agent and the defendant’s own children.

The defendant in the trial, set to begin on Feb. 28, is Guy Wesley Reffitt, above, an oil industry worker who prosecutors say was a member of the Texas Three Percenters, a far-right group connected to the gun rights movement. Mr. Reffitt stands accused of storming the Capitol with a pistol at his waist. The charges against him include interfering with law enforcement officers during a civil disorder and obstructing Congress’s duty to certify the results of the 2020 election.

The trial — the earliest of several related to the events of Jan. 6, 2021, scheduled this year — will mark a major turning point in the Justice Department’s vast investigation of the Capitol attack. About 200 people have pleaded guilty so far to charges connected to the violent assault that disrupted the peaceful transfer of power. Of those, nearly 90 have already been sentenced.

The Reffitt trial, which will take place in Federal District Court in Washington, is expected to be the first time that prosecutors will publicly offer evidence of the allegations they have made against scores of other similar defendants. Under what is sure to be enormous scrutiny, the prosecutors will have to demonstrate that law enforcement officers were “adversely affected” by the riot and that Mr. Reffitt was part of a pro-Trump mob that illegally stopped the work of Congress.

To that end, the prosecutors have amassed an expansive array of witnesses and evidence, according to the list they filed Monday night. While much of the information they plan to introduce had been revealed in previous court papers and hearings, some of it was new, suggesting that they may have similarly undisclosed evidence waiting in the wings for future trials.

Mr. Reffitt’s lawyer, William L. Welch III, did not respond to a request for comment on the government’s evidence, but his client has openly pushed back against accusations that he took part in anything untoward at the Capitol on Jan. 6. In a letter obtained by ProPublica last spring, Mr. Reffitt wrote of the attack, “There was no insurrection, no conspiracy, no sinister plan and no reason to think otherwise.”

While Mr. Reffitt’s trial is certain to attract attention for being the first, other larger and more complicated trials are tentatively scheduled for later in the year. Four leaders of the far-right nationalist group the Proud Boys are set to go on trial in Washington in May. And in July, prosecutors plan to try 11 members of the Oath Keepers militia — including its leader Stewart Rhodes — on charges of seditious conspiracy.

The Reffitt trial is likely to begin with an overview of the tumult on Jan. 6 offered by an officer who worked that day at the U.S. Capitol Police’s command center, overseeing a video surveillance system, and radio and phone communications, prosecutors said. The officer will “explain the progression of the riot” through a compilation of surveillance videos from both inside and outside the building and will show the jury a separate video of former Vice President Mike Pence’s motorcade leaving the east plaza of the Capitol at 1:57 p.m.

Three other Capitol officers are scheduled to testify about their direct interactions with Mr. Reffitt and others members of the mob, prosecutors said. These officers are expected to describe their experiences trying to control the crowd by firing pepper balls and other projectiles and to give accounts of failing to subdue Mr. Reffitt and his fellow rioters with chemical spray.

Feb. 7

 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

washington post logoWashington Post, Supreme Court stops lower court order requiring Alabama to draw a new congressional district favorable to Black residents, Robert Barnes, Feb. 7, 2022. The Supreme Court on Monday put on hold a lower court’s order that Alabama must create a second congressional district favorable to Black voters, over the objections of Chief Justice John G. Roberts Jr. and the court’s three liberals.

The court’s most consistently conservative justices put on hold a decision of a special panel of three federal judges that threw out Alabama’s new congressional map Jan. 24. That map had continued to draw only one of the state’s seven congressional districts to have a majority of Black voters.

Dissenting Justice Elena Kagan called the court’s order “a disservice to Black Alabamians who under [Supreme Court] precedent have had their electoral power diminished — in violation of a law this Court once knew to buttress all of American democracy.”

The unanimous lower court panel noted that over the past decade, the number of White Alabamians had declined while the state’s Black population grew, and now accounts for 27 percent of the state’s overall population. That means the state’s map should contain two districts with either Black majorities or “in which Black voters otherwise have an opportunity” to elect representatives they favor, the panel said.

“Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress,” the panel wrote in a 225-page ruling, finding challengers of the map were “substantially likely” to prevail on claims that the new maps violate the Voting Rights Act.

“We find that the plaintiffs will suffer an irreparable harm if they must vote in the 2022 congressional elections based on a redistricting plan that violates federal law,” the ruling stated.

The creation of a second congressional district favorable to minorities would be a boon for Democrats, who hold only one district.

The panel was composed of Judge Stanley Marcus from the U.S. Court of Appeals for the 11th Circuit, nominated by President Bill Clinton, and District Court Judges Anna M. Manasco and Terry F. Moorer, both chosen by President Donald Trump.

The case is the first for current Supreme Court justices to consider how to apply the Voting Rights Act to racial gerrymandering. In 2019, the court said federal courts had no role in policing partisan gerrymandering.

The judges delayed the qualifying period for congressional elections and gave the Alabama legislature two weeks to draw a new map. The judges said it would not be difficult because plaintiffs had already submitted nearly a dozen maps that showed that it could be done.

Alabama Attorney General Steve Marshall (R) told the Supreme Court that the lower court got it wrong.

“The court-ordered redraw marks a radical change from decades of Alabama’s congressional plans,” Marshall wrote. “It will result in a map that can be drawn only by placing race first above race-neutral districting criteria, sorting and splitting voters across the State on the basis of race alone.”

Alabama’s Republican members of Congress running for reelection also asked the Supreme Court to step in.

“Alabama’s long-standing single majority-minority district comes as no surprise,” they wrote. “It is a consequence not of nefarious motives, but of dispersion and intermingling of state residents regardless of race.”

Marshall said the only way to create a second district majority-minority district would be to “split Gulf-area residents along racial lines, connecting black voters in urban Mobile with black voters in rural counties stretching more than 200 miles to the east.”

Alabama’s lone majority-Black district was also created by federal court order, decades ago, and has always been represented by a Black Democrat, currently Rep. Terri A. Sewell.

The challengers to the plan passed by the legislature and signed by Gov. Kay Ivey (R) include a state senator and the Alabama NAACP. They contend that Sewell’s district had been packed with more Black voters than necessary to ensure a minority candidate would win, and that the rest of the state’s Black voters have been spread across other congressional districts in numbers too small to make a difference.

In their filing, they say they have fulfilled Supreme Court precedent by “showing that it is possible to draw an additional majority-Black district in Alabama consistent with traditional districting principles.”

They said drawing such districts does not require race “to predominate over other factors. Alabama’s contrary argument seeks a wholesale revision” of Voting Rights Act precedent.

The case is Merrill v. Milligan.

Feb. 6

 leondra kruger

ny times logoNew York Times, California’s Supreme Court Was Split. Leondra Kruger Found the Center, Shawn Hubler and Katie Benner, Feb. 6, 2022. Known for her ‘elegant’ mind, the moderate judge, now on President Biden’s short list of potential high court nominees, could be a mediating force in Washington.

In 2014, when then-Governor Jerry Brown nominated Leondra R. Kruger, shown above, to the California Supreme Court, the immediate reaction in her home state was: Leondra who?

She was just 38. While she was born and brought up in California, her career had been in Washington, D.C., as a government lawyer. A retired veteran of the state appellate bench complained that her nomination was a “slap in the face” because she had “never been a judge at any level.” Willie Brown, a former mayor of San Francisco, asked in The San Francisco Chronicle “why the governor had to go all the way to the East Coast” for a new justice.

“Were there no qualified African Americans in California?” wrote the mayor, who is African American.

supreme court graphicWithin weeks, however, Justice Kruger was unanimously confirmed; the hearing was so deferential and swift that the court’s chief justice was still asking who was in favor when the confirmation panel — which included the state’s then-attorney general, Kamala Harris — interrupted with “aye” votes. Eight years later, she has forged a reputation as one of the most influential voices on the highest court in the nation’s most populous state.

It is an achievement that now could prove as consequential as any Beltway credential. If selected from President Biden’s short list of candidates to succeed Justice Stephen G. Breyer on the U.S. Supreme Court, she could become not only the first Black female justice, but also a mediating force on an institution notable for its polarization.

Senate Republican leaders have warned that they will oppose “radical left” nominees. But jurists across the political spectrum say that, like the president, Justice Kruger’s hallmark is moderation.

“She’s a consensus builder,” said Tani Cantil-Sakauye, the chief justice of the California Supreme Court, who was appointed in 2011 by a Republican governor, Arnold Schwarzenegger. “Beyond her obviously glittering Ivy League education and her brilliant mind is this incredibly humble, self-effacing personality who is very persuasive in bringing groups together on different legal arcs.”

That instinct for reasoned persuasion has made Justice Kruger, 45, a powerful backstage force on a split court whose majority has shifted from right to left during her tenure. Since her arrival, California’s high court — notorious as recently as a decade ago for its partisanship and division — has voted unanimously in nearly nine out of 10 decisions, a rate that far outstrips the U.S. Supreme Court’s unanimity.

David A. Carrillo, executive director of the California Constitution Center at the University of California, Berkeley, said Justice Kruger has been “a key factor” in that shift, working behind the scenes to craft decisions that keep to the letter of the law and transcend ideological viewpoints. In a recently published analysis, Mr. Carrillo found that she rarely dissents, “and when she does it’s usually to argue that the court has gone too far.”

Her opinions on occasion have evoked sharp dissents from liberal colleagues. In 2018, for instance, she authored a 4-3 ruling upholding a state requirement that felony arrestees — even before they are convicted — surrender DNA samples, a law that dissenting liberal justices decried as an unconstitutional “biological dragnet.”

Joined by the court’s Republican appointees, she relied on U.S. Supreme Court precedent to determine that a DNA swab was legitimately taken from an accused arsonist, but deliberately left open the larger constitutional question. The dissenting justices argued the court should have been bolder in protecting privacy rights given California’s own laws, with one deriding the majority opinion as “in tension even with its own logic.”

Another dissent warned that the ruling meant “it is not that far a step for the state to collect and retain DNA from law-abiding people in general.”

But Justice Kruger’s defenders note that, by drawing the decision narrowly, she arguably prevented the U.S. Supreme Court from subsequently overturning the ruling. Many liberal jurists in the state are still smarting.

Feb. 5

 

cyril wecht oswald jfk ny post composite

Dr. Cyril Wecht was the first non-governmental forensic pathologist to gain access to the National Archives to examine the assassination materials on JFK in 1972. He discovered that Kennedy's brain was missing as well as many shocking lapses in the official probe into his death. NY Post photo composite

New York Post, JFK assassination expert: Lee Harvey Oswald lone gunman theory is ‘bulls–t,’ Heather Robinson, Feb. 5, 2022. Dr. Cyril Wecht was the first non-governmental forensic pathologist to gain access to the National Archives to examine the assassination materials on JFK in 1972. He discovered that Kennedy’s brain was missing as well as many shocking lapses in the official probe into his death.

Dr. Cyril Wecht distrusts the US government. And he’s proud of it.

The forensic pathologist — who declared in 1978 that Lee Harvey Oswald did not act alone in assassinating President John F. Kennedy — is now 90 and still sticking to his story.

Wecht’s latest book, The JFK Assassination Dissected (Exposit Books), summarizes his six decades of research into the subject, and pokes cyril wecht jfk assassination dissectedholes in the conclusion made by the seven-man Warren Commission that Oswald, without any help, shot and killed Kennedy when his motorcade drove past the Texas School Book Depository in Dallas on Nov. 22, 1963.

“Young people are still being taught that the 35th president was murdered by a lone gunman, and that is simply bulls–t,” Wecht boomed during an interview at his modest office in downtown Pittsburgh last month.

Nearly 60 years ago, the commission concluded that Oswald killed Kennedy because he was a disaffected, profoundly maladjusted loner with communist sympathies. But Wecht still believes the shooter may have been a hired gun committing murder for the CIA.

Oswald “had almost certainly been a CIA agent of some kind,” says Wecht, but the directive to kill may have come from higher up. Allen Dulles, director of the CIA from 1953 to 1961, had overseen the disastrous Bay of Pigs invasion to oust Cuban dictator Fidel Castro and had reason to be disgruntled. Dulles also ended up in prime position to participate in a coverup, Wecht conjectured.

“Kennedy had fired Allen Dulles because he was really pissed off about what the CIA was doing,” said Wecht. “Then who gets appointed to the Warren Commission? Dulles. It stinks to high heaven.”

Tanned, vigorous and dressed sharply in a black jacket and red necktie, Wecht said he wrote his book now for the sake of the truth — and his advancing age.

“I don’t intend to live forever, just for a long time,” said Wecht, who has a wife, Sigrid Wecht, and four children. “I felt I wanted to lay out all the things I’ve experienced and done and the people I’ve met, and it was time. I’ve been working on the book for six years.”

The former coroner of Allegheny County, Pa., Wecht is both a trained lawyer and doctor who has conducted more than 17,000 autopsies and also provided expert testimony on high-profile cases including the deaths of Robert F. Kennedy, Martin Luther King Jr., Elvis Presley, JonBenet Ramsey and Laci Peterson.

The first non-governmental forensic pathologist to gain access to the National Archives to examine the assassination materials in 1972, Wecht discovered and exposed the ghastly fact that the 35th president’s brain had vanished.

“As we sit and talk today, the president’s brain remains missing. Unaccounted for,” he said.

Interest in the assassination — and speculation about a conspiracy — has simmered for decades, gaining steam after Oliver Stone’s 1991 movie “JFK” disputed the belief that Oswald acted alone. (Wecht consulted on Stone’s film and dedicated a chapter to his experience on the movie set. Stone, in turn, wrote the book’s foreword).

In 1992, after a public outcry, Congress passed the JFK Assassination Records Collection Act requiring release of all JFK assassination files by 2017. The deadline has come and gone with US presidents citing national security concerns Biden has scheduled release of the final documents for December 2022.

Wecht is dubious that all the relevant documents will be released but predicts that if they are, it could be revelatory.

“There might be something supporting more than one gunman, evidence of witness manipulation, or failure to call key witnesses,” he said.

In the decades since the assassination, most Americans have continued to believe that Oswald did not act alone. In 1976, one year after the public release of the Zapruder film, a 1963 home movie made by Dallas clothier Abraham Zapruder capturing the moment JFK was shot, 81 percent said they believed more than one gunman was involved.

By 2017, that figure was still high at 60 percent.

‘Young people are still being taught the 35th president was murdered by a lone gunman. That is simply bulls–t.’

Wecht’s book contains never-before published details of his meetings with Oswald’s widow, Marina, left, who, although unhappily married to marina oswald country styleOswald, validated her husband’s claim that he was “just a patsy,” as well as of Wecht’s meeting with George de Mohrenschildt, a shadowy CIA-connected figure who befriended the Oswalds prior to the assassination and, before committing suicide himself in 1977, corroborated Marina’s assessment of Oswald as a fall guy.

The book describes the defection of Oswald, a trained marksman, Marine, and fluent Russian speaker, to the USSR for two-and-a-half years, and his trouble-free return to the US with bride Marina, niece of a high-ranking KGB officer, at the height of the Cold War. (The implication is that Oswald had friends in high places).

After a 10-month investigation, the Warren Commission concluded that Oswald fired three times. One shot missed, another hit Kennedy in the back, and the third hit him in the head. Rather than explain the sequence of the hits, the commission presented three slightly different scenarios, but each scenario ended with the conclusion that just one gunman killed the president.

In 1978, Wecht, as a member of the forensic pathology panel assembled by the House Select Committee on Assassinations (HSCA), testified in favor of a second gunman. He was the lone dissenter.

“I really stood alone,” he said.

For one, the gunshot wound in Kennedy’s back — which the Warren Commission said had an upward trajectory — couldn’t have been caused by Oswald as the sole assassin firing from above, Wecht said.

“Under the single bullet theory, Oswald is the sole assassin, he’s firing from the sixth-floor window of the Texas School Book Depository building, so the bullet is moving from up, downward, right? So how the hell could it go upward?”

Wecht believes an additional shot, from a second gunman, was “fired from the front, behind the picket fence on the grassy knoll” and that “two bullets hit Kennedy . . . one from the rear, one from the front.”

He also recounts that the chief medical examiner for the Dallas Coroner’s office, Dr. Earl Rose, whose office was located at Parkland Memorial Hospital in Dallas where JFK received treatment and died, was manhandled by the Secret Service to prevent him from conducting the autopsy.

“The agent . . . put his arms under Rose’s armpits, lifted him into the air, and set him down gently against a wall. It wasn’t an action designed to hurt Dr. Rose but to show him who was boss,” Wecht writes.

“They swore, they put Dr. Rose up against the wall,” he added.

Instead, JFK’s corpse was flown to Washington, DC, where an autopsy was done by two physicians, neither of whom was board certified in forensic pathology, and neither of whom “had ever done a gunshot wound autopsy in their entire careers,” he said.

The autopsy materials, “including clothing, X-rays, bullet,” “amazingly, belonged to Jacqueline Kennedy,” who donated them to the National Archives in Washington, DC, with the proviso that nobody could see those effects for 75 years, except that after five years, a “recognized expert in the field of pathology with a serious historic purpose” could apply to examine them, Wecht said.

Wecht fought to fill that slot and was given permission to conduct the probe in 1972. That’s when he discovered that JFK’s brain, despite being listed in the inventory of assassination materials, was “no longer available.”

“If they had dissected the brain, they would’ve seen there were two bullets that hit Kennedy in the brain, one from the rear, and one from the front,” said Wecht. His theory that the president was hit in the head twice is “based on witness testimony, the Zapruder film, and medical evidence.”

Critics argue that professionals like Wecht questioning the Warren Commission’s findings have contributed to a general erosion of trust in authority and spawned an industry of conspiracy-theorizing, prompting potentially harmful doubts about everything from vaccines to elections.

But Wecht doesn’t mind the term “conspiracy theorist.”

“I am amused by the audacity and hypocrisy of people calling me a conspiratorialist,” he said. “I have always had a majority of Americans on my side. How many things are there that maintain a majority consensus?

“Go back and talk with older people, before Watergate and Vietnam,” he says. “Pretty much what the government said, that was it, you did not question.

“Go back and talk with older people, before Watergate and Vietnam,” he says. “Pretty much what the government said, that was it, you did not question.

“We are still learning things the government covered up.”

Feb. 4

 washington post logoWashington Post, Gorsuch to speak at Federalist Society; media barred, Mariana Alfaro, Feb. 4, 2022. The Supreme Court justice’s headline appearance at the conservative group event raises concerns of partisanship.

Justice Neil M. Gorsuch is speaking to the conservative Federalist Society as part of a political lineup of former vice president Mike Pence, Florida Gov. Ron DeSantis (R) and Donald Trump’s onetime press secretary, an appearance that comes as his fellow justices repeatedly dismiss criticism that the Supreme Court is partisan.

neil gorsuch headshotWhat Gorsuch, right, says Friday night will only be known to the organization’s guests. The media is barred from listening to his remarks.

Gorsuch’s participation in the weekend-long event comes in the midst of a monumental time for the court as it could roll back or overturn Roe v. Wade, the 1973 decision that guarantees a woman’s right to abortion, in the coming months. The court also could be asked to rule on issues related to the House committee investigation of the Jan. 6 attack on the Capitol by a pro-Trump mob — with Pence a potential witness.

It is unclear whether Gorsuch will be paid by the group for his appearance. Neither the Federalist Society nor the Supreme Court responded to requests for comment.

The Federalist Society is an influential nonprofit organization for conservative and libertarian lawyers that served as a pipeline for former president Donald Trump’s judicial choices, including Gorsuch. The justice will be addressing the Florida chapter at Disney’s Yacht and Beach Club Resort in Lake Buena Vista, Fla.

The conference, to be held Friday and Saturday, will feature a keynote speech from Pence, who is a possible 2024 presidential candidate; and a conversation between DeSantis, who is seeking reelection and also mentioned as a White House hopeful, and Trump’s White House press secretary Kayleigh McEnany.

washington post logoWashington Post, Opinion: Republicans’ animus toward Biden’s court pledge shows they’re not veiling racism, Eugene Robinson, right, Feb. 4, 2022 (print eugene robinson headshot Customed.). If the Republican Party has any sort of platform these days, it appears to involve stoking White grievance and opposing even modest steps to foster diversity.

That’s not a partisan argument; I’m just noting what Sen. Ted Cruz (R-Tex.) and a few of his colleagues are saying about President Biden’s promise to nominate a Black woman to the Supreme Court. On his podcast, “Verdict With Ted Cruz,” the senator recently called Biden’s pledge “offensive.”

“The fact that he’s willing to make a promise at the outset, that it must be a Black woman, I got to say that’s offensive,” Cruz said. “You know, Black women are, what, 6 percent of the U.S. population? He’s saying to 94 percent of Americans, ‘I don’t give a damn about you. You are ineligible.’”

Cruz went on to argue that promising to nominate a Black woman was, somehow, “actually an insult to Black women.” I’d like to see what data he’s relying on to support that claim. I happen to know quite a few Black women — my wife, my sister, lots of other family members, many friends, co-workers and acquaintances — and not a single one has expressed to me the slightest sense of being insulted. I’ve heard reactions of joy and pride but not a scintilla of outrage.

Eventually, Cruz got to his real point: He claimed Biden is saying that “if you’re a White guy, tough luck. If you’re a White woman, tough luck. You don’t qualify.”

And there you have it. Republicans no longer accidentally say the quiet part out loud; they shout it from the rooftops — or at least preach it on their podcasts.

Feb. 3

 

supreme court resized 2021

ny times logoNew York Times, Opinion: The Most Important Thing Missing From the Supreme Court Today, Adrian Vermeule, Feb. 3, 2022.  Justice Stephen Breyer last week announced that he will retire at the end of this Supreme Court term. If the recent past is any guide, whoever is nominated to replace him will face a barrage of attacks from political opponents.

Every Supreme Court nomination is now a battleground, featuring slander and even angry demonstrations, as when protesters of Justice Brett Kavanaugh’s nomination invaded the Senate building and attacked the very doors of the court.

The great promise of our legal system as understood by many modern theorists — that law can create a framework to reconcile plural interests in a diverse society — has manifestly failed. Instead the law has become ever more politically contested and bitterly divisive; the tolerance celebrated by the proponents of liberalism appears to be more science fiction than fact. Something has gone badly wrong: It is unclear, in America in 2022, what the point of the law is, what higher ends it should strive to attain. We have forgotten what law is for.

Today’s reigning theories of law are exhausted. On one side, legal progressivism shamelessly instrumentalizes the law in the service of a particular vision of social justice centered on identity politics and libertine social and sexual mores. This relentless crusade und